Monckton Chambers
9 Experts
16 Contributions by Monckton Chambers Experts
PRACTICE NOTES
STOP PRESS: From 24 February 2025, the core provisions of the Procurement Act 2023 (PA 2023) have taken effect. Procurements launched on or after that date must follow PA 2023, while those started under earlier regimes (including the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and Defence and Security Public Contracts Regulations 2011) must continue to be run and managed under those rules. The Cabinet Office has also refreshed its standard contract suites, templates and guidance for the government’s Model Services Contract, Mid-Tier Contract and Short Form Contract. These revised materials were released to coincide with the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be updated shortly to reflect these changes. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and Government model contracts updated for
Commercial
PRACTICE NOTES
Where a UK court or tribunal is confronted with an issue engaging a Convention right, it must take into account any judgment or decision of the European Court of Human Rights. In reality, the prevailing judicial approach has been to regard final decisions of the Strasbourg Court as effectively binding unless there is a sound reason to depart. This Practice Note accordingly summarises the core principles governing the standing of Strasbourg jurisprudence in the UK courts.
Background to HRA 1998, s 2
The UK was the first state to ratify the European Convention on Human Rights in March 1951. Until the Human Rights Act 1998, however, the Convention was not part of domestic law, so UK courts lacked authority to give effect to Convention rights (see: R v Secretary of State for the Home Department ex parte Brind). Even so, courts paid regard to
Public Law
PRACTICE NOTES
Introduction
Article 8 of the European Convention on Human Rights (ECHR) sets out that: 1) every individual is entitled to respect for his or her private and family life, home and correspondence; and 2) a public authority must not interfere with the exercise of this right unless any interference is lawful and necessary in a democratic society for reasons including:
in the interests of national security
in the interests of public safety
for the country’s economic wellbeing
for the prevention of disorder or crime
for the protection of health or morals
for the protection of the rights and freedoms of others
The rights safeguarded by Article 8 are also set out in Schedule 1 to the Human Rights Act 1998, and are qualified rights (see Practice Note: Convention rights—structure of qualified rights). Article 8 is engaged whenever one or more of the interests listed in Article 8(1) are in
Public Law
PRACTICE NOTES
STOP PRESS
From 24 February 2025, the core provisions of the Procurement Act 2023 (PA 2023) have come into effect. Any procurement launched on or after that date must follow PA 2023, whereas those started under the prior regime must continue to be run and overseen under that framework.
Earlier legislation includes:
Public Contracts Regulations 2015
Utilities Contracts Regulations 2016
Concession Contracts Regulations 2016
Defence and Security Public Contracts Regulations 2011
The Cabinet Office has also refreshed its standard contract document collections, templates and guidance for the government’s Model Services Contract, Mid-Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go-live’ on 24 February 2025.
This Practice Note will be revised shortly to reflect these changes. In the meantime, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and Government model contracts updated for
Commercial
PRACTICE NOTES
The Civil Contingencies Act 2004
The Civil Contingencies Act 2004 (CCA 2004) constitutes the principal legal framework for managing large-scale emergencies across the UK.
Part 1 of the CCA 2004 places obligations on a spectrum of public bodies and designated private entities (e.g. energy suppliers and telecommunications operators) to carry out contingency planning and co‑operation for emergencies.
Part 2 of the CCA 2004 empowers a senior government minister to make emergency regulations, including provisions capable of altering primary legislation.
It should also be recognised that a variety of other exceptional statutory powers can be used in a crisis without any declaration under Part 2. For example, primary legislation such as the Coronavirus Act 2020 and section 14 of the Human Rights Act 1998 (HRA 1998) enables a Secretary of State to issue a designated derogation from rights under the European
Public Law
PRACTICE NOTES
STOP PRESS
As at 24 February 2025, the core provisions of the Procurement Act 2023 (PA 2023) have commenced. Competitions launched on or after that date must proceed under PA 2023, while procurements started under earlier regimes must continue to be run and administered in line with those rules, including:
Public Contracts Regulations 2015
Utilities Contracts Regulations 2016
Concession Contracts Regulations 2016
Defence and Security Public Contracts Regulations 2011
The Cabinet Office has also refreshed its standard contract document collections, templates and guidance for the government’s Model Services Contract, Mid-Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go-live’ on 24 February 2025.
This Practice Note will be revised shortly to reflect these developments. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, and Government model contracts updated for
Commercial
PRACTICE NOTES
Boilerplate provisions in public sector contracts
This Practice Note examines audit clauses within public sector agreements. For additional insight into what contracting authorities (and other interested parties) should understand when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations.
Public procurement reform
The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 (PA 2023). See: Procurement Bill [HL]—LNB News 12/05/2022 14 and Procurement Bill receives Royal Assent—LNB News 26/10/2023 81. From 24 February 2025, the principal provisions of PA 2023 are in force, and procurements initiated on or after that date must proceed under PA 2023. The existing public procurement regime—including the Public Contracts Regulations 2015 (PCR 2015) and Procurement Practice Notes (PPNs), the Utilities Contracts Regulations 2016, the Concession Contracts Regulations 2016, and the Defence and Security Public Contracts
Commercial
PRACTICE NOTES
STOP PRESS
From 24 February 2025, the core provisions of the Procurement Act 2023 (PA 2023) have taken effect. Competitions started on or after that date must proceed under PA 2023, while procurements commenced under the earlier regime (Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and Defence and Security Public Contracts Regulations 2011) must continue to be run and administered under those rules.
The Cabinet Office has refreshed its suites of standard contract documents, templates and guidance for the government’s Model Services Contract, Mid‑Tier Contract and Short Form Contract. These revised materials were released to coincide with the PA 2023 “go‑live” on 24 February 2025. This Practice Note will be revised shortly to take account of these changes.
For further detail, see: News Analysis: Procurement Act 2023 “go live”—what happens next?, and Government model contracts updated for
Commercial
PRACTICE NOTES
Boilerplate provisions in public sector contracts
This Practice Note examines freedom of information clauses in public sector contracts. For further detail on what contracting authorities and other interested parties should be aware of when deploying boilerplate terms in public sector agreements, see Practice Note: Boilerplate provisions in public sector agreements: general considerations.
Public procurement reform
The Procurement Bill secured Royal Assent on 26 October 2023, becoming the Procurement Act 2023 (PA 2023). See: Procurement Bill [HL]—LNB News 12/05/2022 14 and Procurement Bill receives Royal Assent—LNB News 26/10/2023 81.
From 24 February 2025, the principal provisions of PA 2023 are in force, and procurements commenced on or after that date must proceed under PA 2023. Earlier procurements remain governed by the existing public procurement framework, including:
Public Contracts Regulations 2015 (PCR 2015) and Procurement Practice Notes (PPNs)
Utilities Contracts Regulations 2016
Concession Contracts
Commercial
PRACTICE NOTES
STOP PRESS
From 24 February 2025, the core provisions of the Procurement Act 2023 (PA 2023) are in effect. Procurements launched on or after that date must proceed under PA 2023, while those initiated under earlier regimes must continue to be run and managed under those rules, including:
Public Contracts Regulations 2015
Utilities Contracts Regulations 2016
Concession Contracts Regulations 2016
Defence and Security Public Contracts Regulations 2011
The Cabinet Office has also refreshed its standard contract document suites, templates and guidance for the government’s Model Services Contract, Mid‑Tier Contract and Short Form Contract. These updated materials were released to coincide with the PA 2023 ‘go‑live’ on 24 February 2025.
This Practice Note will be updated shortly to reflect these changes. In the meantime, see:
News Analysis: Procurement Act 2023 ‘go live’—what happens next?
Government model contracts updated for
Commercial
PRACTICE NOTES
STOP PRESS
From 24 February 2025, the principal provisions of the Procurement Act 2023 (PA 2023) now apply. Any procurement launched on or after that date must proceed under PA 2023, while procurements started under earlier regimes must continue to be run and administered under those rules, including:
Public Contracts Regulations 2015
Utilities Contracts Regulations 2016
Concession Contracts Regulations 2016
Defence and Security Public Contracts Regulations 2011
The Cabinet Office has refreshed its standard contract suites, templates and guidance for the government’s Model Services Contract, Mid-Tier Contract and Short Form Contract, issued alongside the PA 2023 ‘go-live’ on 24 February 2025. This Practice Note will be updated shortly to capture these changes. In the interim, see News Analysis: Procurement Act 2023 ‘go live’—what happens next?, Government model contracts updated for Procurement Act 2023 ‘go-live’—LNB News 24/02/2025 29, and Cabinet Office updates PPN 013: Using standard
Commercial
PRACTICE NOTES
There are three main principles of statutory interpretation relevant to the protection of human rights in the UK:
a statutory obligation in section 3 of the Human Rights Act 1998 (HRA 1998) to construe legislation, so far as possible, in a manner consistent with Convention rights
the presumption that Parliament does not, absent clear wording, curtail fundamental rights — the interpretative ‘principle of legality’
the presumption that Parliament does not intend to enact measures contrary to the United Kingdom's international duties, including under international human rights instruments — the presumption of compatibility
Before the UK left the EU, further presumptions guided the reading of statutes in line with UK obligations stemming from EU law. Although the UK is no longer an EU member, such presumptions may still matter for questions of assimilated law (or issues of retained EU law as it operated in the 2021–23 period).
Public Law
PRACTICE NOTES
Under the Human Rights Act 1998 (HRA 1998), all public authorities in the UK are required to act consistently with the European Convention on Human Rights (ECHR), namely the ‘Convention rights’. For further reading, see Practice Note: Convention rights. If this obligation is breached, the HRA 1998 allows any victim to bring proceedings against the public authority at fault (HRA 1998, s 7(1)(a)). Additionally, a victim may rely on their Convention rights in any legal proceedings (HRA 1998, s 7(1)(b)).
Background—the relationship between the ECHR and the HRA 1998
The ECHR (the ‘Convention’, as set out in HRA 1998, Sch 1 Pt 1) is an international treaty concluded by the member states of the Council of Europe. Under Article 1, each contracting state must secure the Convention rights for everyone within its jurisdiction. The Convention also established the European Court of Human Rights (ECtHR) in
Public Law
PRACTICE NOTES
Terrorism law in the UK spans both common law and statute, encompassing a broad range of criminal offences and civil powers. The Terrorism Act 2000 (TA 2000) was crafted to serve as a comprehensive structure for counter-terrorism powers. Following the 9/11 attacks, however, the TA 2000 framework was revised and reinforced by additional legislation:
Anti-terrorism, Crime and Security Act 2001 (ACSA 2001)
Prevention of Terrorism Act 2005 (PTA 2005)—subsequently repealed by the Terrorism Prevention and Investigation Measures Act 2011, s 1 (see below)
Terrorism Act 2006 (TA 2006)
Counter-Terrorism Act 2008 (CTA 2008)
Terrorist Asset-Freezing etc Act 2010 (TAFA 2010)
Terrorism Prevention and Investigation Measures Act 2011 (TPIMA 2011)
Protection of Freedoms Act 2012 (PFA 2012)
Justice and Security Act 2013 (JSA 2013)
Counter-Terrorism and Security Act 2015 (CTSA 2015)
Public Law
PRACTICE NOTES
STOP PRESS:
With effect from 24 February 2025, the principal provisions of the Procurement Act 2023 (PA 2023) are now operative. Procurement exercises launched on or after that date must, without exception, proceed under PA 2023, whereas those initiated under the previous regime—including the Public Contracts Regulations 2015, Utilities Contracts Regulations 2016, Concession Contracts Regulations 2016, and the Defence and Security Public Contracts Regulations 2011—must continue to be procured, administered and managed in accordance with that legislation. The Cabinet Office has likewise refreshed and republished its collections of standard contract documents, templates and guidance materials for the government’s Model Services Contract, Mid‑Tier Contract and Short Form Contract. These revised materials were issued in tandem with the PA 2023 ‘go‑live’ on 24 February 2025. This Practice Note will be updated shortly to reflect and incorporate these developments. In the meantime, see News Analysis:
Commercial
PRACTICE NOTES
Judicial deference
Judicial deference is often characterised as the principle that 'respect is a central concept in judicial review'. It is not confined to matters concerning human rights. Where human rights are engaged, however, it relates to the weight courts will accord to the considered views of Parliament and/or the Executive when determining whether a given decision or a particular item of legislation amounts to a proportionate interference with one or more rights under the European Convention on Human Rights. Although akin to deference in several ways, the margin of appreciation is a separate doctrine applied by the European Court of Human Rights (ECtHR). It encapsulates the notion that member states are, in principle, better placed to assess local needs and circumstances than an international court and should therefore be granted a measure of leeway as to the manner in which they
Public Law
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