There is a potential for significant change and public bodies are likely to be at the forefront of delivering that change.
This article is taken from July's public matters newsletter. Click here to view more articles from this issue.
The introduction of the Agriculture Bill, the Fisheries Bill and the Environment Bill mean that we are on the cusp of a significant change in our environmental legislative framework.
It is vital that the different pieces of legislation are effective, as this will form the basis of the framework that we are going to have to use in order to reach our Net Zero target and implement the 25 Year Environment Plan.
The Covid-19 pandemic has also required a dramatic shift in how we work and where we can go. This is had some significant environmental benefits (such as cleaner air), and many have called for the easing of the Covid-19 restrictions to be a ‘green recovery’. History suggests however that green issues often lose prominence in the face of economic downturns.
What is clear however is that there is potential for significant change ahead and public bodies are likely to be at the forefront of delivering that change.
The Chancellor, Rishi Sunak, has revealed plans in the Summer Statement to introduce a £3bn package in order to better insulate and decarbonise buildings. It is understood that £1bn of this fund will be used to improve the energy efficiency of public buildings and provide them with low-carbon heating. The remaining £2bn will take the form of a grant scheme, which will result in homeowners receiving vouchers of up to £5,000 to be invested in energy-efficient home improvement. These grants will cover up to two thirds of the cost of the individual projects. The poorest households will be eligible for up to £10,000.
The announcement has been welcomed, but environmental organisations and opposition parties have asked whether the scheme goes far enough. This investment is much smaller that similar schemes that are being introduced in other European countries – specifically it has been noted that the £3bn being invested was only slightly more than what Germany is investing in hydrogen technology alone. In addition, there is a concern that this initiative will not benefit the most vulnerable in our society, for example those in the rental sector, who are typically in the least energy efficient properties.
There is very little detail that has been published by the government in relation to these plans, and it will be interesting to see whether this will in fact start a green recovery. One thing to note is that we will not be able to meet our Net Zero target with this one-off scheme: we need sustained investment over a prolonged period in order to ensure the necessary renewable technologies and skills base is established and integrated into the economy in order to make green energy truly sustainable.
Ministers are preparing for a major overhaul in the planning system in England in order to speed up and streamline the planning process as part of the Government’s plans to get the country building again and to restart the economy after the COVID-19 pandemic.
The proposals focus on the concept of ‘zoning’. This is the idea that certain areas will have certain cods or zones that will dictate the type of development that can take place in that area. Limited detail has been provided in relation to the zoning plans at this stage, and engagement from all stakeholders will be needed in order to ensure the reforms are workable, transparent and beneficial.
However, there are a number of challenges that the Government will need to consider when reforming the planning system. Firstly, a more codified system such as zoning may lead to less discretion for decision makers when considering applications, which could become an issue, particularly if a zoning plan becomes out of date. In addition, the ability for decision-makers to exercise discretion in the planning system is recognised in case law. If this discretion is to be removed or reduced, this could lead to increases in legal challenges, which will not have the desired effect of making the system more streamlined. Finally, a more codified system may not take into account or provide sufficient flexibility when considering environmental and nature conservation matters, particularly as scientific evidence is constantly evolving in this area.
The Prime Minster, when announcing his proposed planning reform, refereed to removing ‘newt counting’. Whilst no further details were given, concern has been expressed by many that the focus of the new reforms are not going to be environmental protection.
The Environment Bill 2020, currently being considered by a Public Bill Committee, sets out the requirement for developments to achieve at least a 10% net gain in value for biodiversity. George Eustice, Environment Secretary, considers that this “advent of net gain” will likely require local authorities to review their capacity and expertise to undertake assessments of planning applications in order to decide whether additional ecological expertise is required. Eustice indicated that the government was looking at ways of funding ecologists to be made available to local authorities in order to ease pressure on this already limited resource.
The Covid-19 pandemic has seen a drastic reduction in air pollution levels worldwide, particularly in areas that have introduced restrictions such as China and Northern Italy. The lockdown in London began in late March and data indicates that the lockdown measures have had a clear impact on nitrogen dioxide levels in the capital, most significantly at the sites of London’s most busy roads prior to the lockdown.
A heard of European bison are to be brought to the UK as part of a “wilding project”. The move, which has been organised by Kent Wildlife Trust and the Wildwood Trust, will involve a herd being introduced to the West Blean nature reserve near Canterbury in Spring 2022. According to the Kent Wildlife Trust, the “wilding project” aims to give nature the tools and space it needs to recover. It also has the potential to increase the abundance of biodiversity to levels beyond what human management achieves. The project is funded by players of the People’s Postcode Lottery.
Kent Wildlife Trust have said that European bison are being used in this project as they are “ecosystem engineers”, which means that they are able to change their environment through their natural behaviours: specifically, this is because they eat bark and create dust baths which each have benefits for plans and animals in the area. Kent Wildlife Trust say that “these are functions that have been missing from our UK woodlands for thousands of years and bringing them back can help restore an abundance of wildlife”.
For the first time, in this year’s report, tools have been provided to Parliamentarians to scrutinise the progress across Whitehall.
Sections 125 and 126 of the Marine and Coastal Access Act 2009 impose duties on public bodies in respect of marine conservation zones.
The Environment Bill is being considered by a Public Bill Committee which is scheduled to report by 29 September 2020. This Bill will put the environment at the centre of policy making by setting targets, plans and policies to improve the natural environment. The Bill also seeks to create a new environmental governance framework tailored to the UK context.
The Bill will create an obligation on public authorities to consider their policies and operations regularly (at least every 5 years) to see what action can be taken to further conservation and to enhance biodiversity. Local authorities will also have to produce a Biodiversity Report every 5 years. The Bill will make it mandatory for developments to leave habitats in a measurably better state than they were in prior to the development. Parts 6 and 7 of the Bill provide for nature and conservation covenants. These conservation covenants between landowners and responsible bodies may contain positive or restrictive obligations to further conservation objectives for the public good, which will bind subsequent landowners to have a longer-term conservational benefit.
This Bill had its first reading in the House of Commons on 2 July 2020. It will create powers for the UK to operate as an independent coastal state and to sustainably manage its fish stocks outside the EU. George Eustice, Fisheries Minister, has described the Fisheries Bill as having the power to “improve our marine habitats” and allow marine habitats to thrive. This Bill is intended to take into account climate change and move the UK towards climate smart fishing in UK waters.
The agriculture is due to ender the committee stage of the House of Lords on 14 July 2020. It is described as a bill to properly support farmers to innovatively protect the environment. One of the key concepts is that public money will only be provided for public goods, such as better air and water quality, higher animal welfare standards, improved access to the countryside or measures to reduce flooding.
Details of the precisely how this will be achieved have not been set out. The details will be set out by regulations.
It has been criticised for not requiring adherence to current EU food quality standards.
In this case, the European Court of Justice (‘ECJ’) confirmed that the Directive 92/43 (‘Habitats Directive’) and the strict protection of animal species provided for therein also applied to animals that stray from their natural habitat into human settlements. The ECJ ruled that “the concept of natural range is greater than the geographical space that contains the essential physical and biological elements for an animal’s life and reproductions”. It was confirmed that the natural range extended to the geographical space in which the species is present or to which it may be present in the course of its natural behaviour.
The claimants applied for judicial review of the Environment Secretary’s decision to issue a direction to Natural England under section 16 of the Natural Environment and Rural Communities Act 2006 requiring it not to grant any badger culling licences in Derbyshire before May 2020. The application was refused on the basis that the Court considered that the Environment Secretary had made a judgment, having regard to the UK’s vaccination programmed, the anti-culling lobby and the risk of fallout if a vaccinated badger was culled by mistake, and the decision was not irrational.
This case confirmed that a Member State my not derogate from the protection on the deliberate killing of wolves, by way of hunting for population management purposes, for the sole purpose of combating poaching, under article 16(1) of the Habitats Directive. The Court confirmed that derogation was only permissible where several conditions were met, including that there be no satisfactory alternative.
Law firm Browne Jacobson has collaborated with Wiltshire Council and Christ Church Business School on the launch event of The Council Company Best Practice and Innovation Network, a platform which brings together academic experts and senior local authority leaders, allowing them to share best practice in relation to council companies.
In the Autumn Statement delivered on 17 November, rises to the National Living Wage and National Minimum Wage rates were announced, to take effect from 1 April 2023:
Announced in September but scrapped on 17 November the investment zone proposals were very short lived. The proposal has now morphed into the proposal for a smaller number of clustered zones earmarked for investment.
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship. There are already restrictions on the extent to which personal injury claims can be settled by a settlement agreement. There have also been numerous consultations about the use of non-disclosure agreements and confidentiality clauses, particularly where allegations of sexual harassment and discrimination have been raised. In any event, it is clear that settlement agreements should not be used to prevent an employee from raising a protected disclosure.
On 2 November 2022, the Supreme Court handed down its judgment in the much awaiting case of Hillside Parks Ltd v Snowdonia National Park Authority  UKSC 30. The Court’s judgment suggests that the long established practice of using drop-in applications is in fact much more restricted than previously thought. This judgment therefore has significant implications for both the developers and local planning authorities.
The war on plastic is being taken to a new level, and businesses that don’t consider sourcing recycled packaging materials could face costly implications.
In ‘failure to remove’ claims, the claimant alleges abuse in the family home and asserts that the local authority should have known about the abuse and/or that they should have removed the claimant from the family home and into care earlier.
Earlier in the year a number of fashion retailers, boldly announced the introduction of a charging fee for returning any product purchased via their online store. Yet, despite this commercial, and perhaps somewhat controversial decision, at least one major fashion giant that adopted this approach has recorded ‘historic highs’ in its September profits. Browne Jacobson partner, Cat Driscoll who heads up the firm’s commercial team in Manchester and is also head of its Fashion & Beauty sector discusses whether this change has put the average consumer off and whether the days of free returns are long gone.
Across the UK, homelessness is an urgent crisis, and one that is set to grow amid the rising cost of living. Local authorities are at the forefront of responding to this crisis, but with a lack of properties that are suitable for social housing across the UK, vulnerable individuals and families are often housed in temporary accommodation.
Settlement agreements in an employment context are ordinarily used to provide both parties with certainty following the conclusion of an employment relationship – but what happens when there is alleged discrimination after entering into a settlement agreement?
The fashion industry has a mountain to climb when it comes to sustainability. More than 8% of greenhouse gas emissions come from the apparel and footwear industries, and approaching three-fifths of all clothing ends up in incinerators or landfill within a year of being made.
Updates include UK Shared Prosperity Fund, contracts, Subsidy Control Bill, data controller liability, Government Covid-19 procurement and Highway Code revisions.
The complex and rather nebulous transitional subsidy control regime set out in the UK-EU Trade and Co-operation Agreement and the UK’s wider international commitments has made it difficult for public authorities and those working with them to proceed with certainty where subsidies are involved.
Investment zones have been introduced by the Conservative party to get the United Kingdom (UK) ‘working, building and growing’. They are to be designated sites which provide time-limited tax incentives, streamlined planning rules and wider support for local growth to encourage investment and accelerate the development of housing and infrastructure that the UK needs to drive economic growth. Processes and requirements that slow down development will be stripped back with the intention of attracting new investment.
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Three months on from the commencement of the new statutory Integrated Care Systems (ICS) Anja Beriro and Gerrard Hanratty reflect on the main themes and issues that have come from the new relationship between local government and health.
The Procurement Bill (the Bill) has now been with us for about four months, during which time there have been a huge number of amendments proposed in the House of Lords (circa 320). Lately, there has been less mention of it — unsurprising, really, given everything else going on in politics recently — but here’s a summary of some of the key issues and themes so far.
Browne Jacobson has been named as a supplier on Crown Commercial Service’s (CCS) Public Sector Legal Services Framework on Lot 1a – full-service provision (England and Wales) and Lot 2a – general service provision (England and Wales).
Browne Jacobson has been ranked as a Top Tier law firm in 25 key practice areas in Legal 500 UK 2023, the independent directory of comparative law firm performance. The firm also continues to underpin its status as one of the leading law firms in the East Midlands region with 16 Tier 1 rankings.
Welcome to our September edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
Devolution is the transfer of powers in areas like transport, housing and skills in England and since the Cities and Local Government Devolution Act 2016 has been a much-discussed topic.
In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
The Department for Levelling Up, Housing and Communities (DLUHC) has published a consultation on proposals to require Local Government Pension Scheme (LGPS) administering authorities (AAs) in England and Wales to assess, manage and report on climate change risks.
The concept of Legal Project Management (“LPM”) is increasingly relevant to the delivery of legal services, both in-house functions and private practice law. This is unsurprising, LPM is crucial if lawyers are to add value by controlling budgets, communicate pro-actively on risk mitigation and costs, and manage time by resourcing to deal with pinch points in the project.
The Department for Education (DfE) have announced that the conversion of Donisthorpe Primary School in Leicestershire on 1st September marked the 10,000th academy conversion.
Browne Jacobson’s specialist cleantech lawyers have advised AIM listed Clean Power Hydrogen Group Limited (CPH2) on its licence agreement with Bentec GmbH, a member of the Kenera business of the KCA Deutag Group. Kenera will manufacture CPH2’s unique membrane-free electrolysers from its facility in Bad Bentheim, Germany.
Welcome to our August edition of Public Matters, our monthly round-up of legal updates, news and insights for the public sector.
On 31 August 2022, the Court of Appeal handed down the Judgment in respect of the appeal case of HXA v Surrey County Council and YXA v Wolverhampton City Council .
This month, HM Treasury issued a consultation on Administrative Control Process for Public Sector Exits with draft guidance. They’re proposing to introduce an expanded approvals process for employee exits and special severance payments, and additional reporting requirements. If approved, the proposals will impact public sector bodies and those that do not have a specific right to make exit payments.
The focus on the Levelling Up agenda and the availability of grant funding, means there are numerous important regeneration schemes actively being pursued across the country. With ever-escalating project and building costs, in many cases, applications that were made for grant funding were based on costs contingencies that have already been exceeded.
The Government has recently published its response to the consultation on Subsidies and Schemes of Interest and of Particular Interest under the Subsidy Control Act 2022. In this article, our subsidy control experts discuss some of the key points coming out of the response, and their impact for public authorities.