Legal Practice Notes

From the outset of UK devolution, devolved enactments have faced various legal challenges. Early cases were typically mounted by individuals invoking the European Convention on Human Rights to vindicate their rights. Since 2008, however, the emphasis has moved towards alleging that such enactments stray outside the devolved legislature’s own law-making competence. This Practice Note offers core guidance on the mechanics and rationale of these disputes, and summarises judicial treatment to date. Additionally, UK ministers may, under section 35 of the Scotland Act 1998 ( SA 1998) and section 114 of the Government of Wales Act 2006 ( GWA 2006), intervene by order in defined circumstances to prevent a Presiding Officer of a devolved legislature from presenting a Bill for Royal Assent. Any such order can itself be contested by judicial review. Part II of the Northern Ireland Act 1998 ( NIA 1998) serves a...

The Public Interest Disclosure Act 1998 ( PIDA 1998) The Public Interest Disclosure Act 1998 ( PIDA 1998) introduced provisions into the Employment Rights Act 1996 ( ERA 1996) to protect workers who make protected disclosures, enabling 'whistleblowers' to bring a claim before an employment tribunal for detriment and/or dismissal arising from raising a concern in the public interest. Employees of the security and intelligence services and members of the UK armed forces are excluded from these provisions. Civil servants, police officers and government contractors may lodge a claim provided they have not been carved out by a ministerial certificate. Although disclosures to the media or the wider public can be protected, an individual who commits a criminal offence when making the disclosure will not benefit from protection. Accordingly, workers arrested for any offence linked to the disclosure must wait for...

Perhaps the most important of the statutory facets of parliamentary privilege is the freedom of speech within Parliament, safeguarded by Article 9 of the Bill of Rights 1688. Exclusive cognisance It is often said that Parliament’s prime privilege is the sole authority to set, regulate and determine the validity of its own procedures. Writing in the eighteenth century, Blackstone observed that the entirety of parliamentary law and custom stems from a single precept: matters concerning either House should be examined, debated and decided by that House alone, and nowhere else. Blackstone, Commentaries (17th ed. (1830)), vol. 1, p. 163 In R v Chaytor, Lord Phillips explained that ‘exclusive cognisance’ denotes domains that the courts have accepted are for Parliament, not the judiciary, to resolve. It captures not Parliament in the abstract but each House’s unique entitlement to conduct its business free from...

The Bribery Act 2010 ( BA 2010) criminalises: offering or giving a bribe to another person (active bribery) requesting, agreeing to receive, or accepting a bribe (passive bribery) bribing a foreign public official for a business or commercial organisation only, failing to prevent bribery The purpose of this Practice Note is to present a general overview of the active and passive bribery offences in BA 2010, ss 1 and 2, together with the offence of bribing a foreign public official under BA 2010, s 6; in essence, the giving or receiving of bribes. It does not include a synopsis of the corporate offence of failing to prevent bribery, which is dealt with in Practice Note: Failure to prevent bribery—the offence. This Practice Note should be considered alongside Practice Note: The Bribery Act 2010—an introductory guide. BA 2010 came into force on 1 July 2011. Conduct occurring prior to...

This Practice Note explains when a rectification claim may be suitable, what you must prove to succeed, and which evidence may be admissible in support. What is rectification? Rectification is an equitable remedy intended to correct a document so that it reflects the parties’ true intentions. When contracting, the parties may have shared a common intention about the meaning of their agreement at the time of drafting, yet that intention is not captured in the wording; ie it diverges from the objective meaning of the contractual document as determined in accordance with the rules of contract interpretation (on which, more generally, see Practice Note: Contract interpretation—rules of contract interpretation). In those circumstances, a claim for rectification may be appropriate. As Hildyard J observed in Procter & Gamble v Svenska Cellulosa, the purpose of rectification is not to vary, modify or extend the bargain; it is to reform the...

Every public authority, when carrying out any of its functions, is subject to and must comply with the Public Sector Equality Duty ( PSED). The PSED is contained in section 149 of the Equality Act 2010 ( Eq A 2010). In performing their functions, public authorities are required to have due regard to the need, in particular, to: eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the Eq A 2010 advance equality of opportunity between persons who share a relevant protected characteristic and those who do not foster good relations between persons who share a relevant protected characteristic and those who do not Eq A 2010, s 149 replaced the earlier trio of standalone public sector duties on race, gender and disability equality ( Race Relations Act 1976, s 71, Sex...

This Practice Note explores circumstances in which parties can resist disclosure and/or inspection of sensitive material on the basis of public interest immunity ( PII). It outlines the steps for advancing a PII claim and securing the court’s leave to withhold documents. Waiver of PII is also addressed here. This Practice Note should be read alongside Practice Note: Closed Material Procedure. What is public interest immunity ( PII)? A party may oppose the disclosure and/or inspection of a document where producing it would prejudice the public interest. That objection is characterised as reliance on PII, the ‘immunity’ describing the capacity to decline disclosure or to refuse permission for inspection of the material. It was formerly referred to as ‘crown privilege’. PII operates in both civil and criminal law settings. The ‘proper approach’ to PII, which deploys a three-stage test, is discussed in the...

The Human Rights Act 1998 ( HRA 1998) obliges public bodies not to behave in a manner that conflicts with Convention rights. A claim can only be brought if the body in question is a public authority. It is therefore crucial to identify what qualifies a body as a public authority for the purposes of HRA 1998. In some matters the answer is straightforward, yet in many others the position is more nuanced. In those circumstances it is necessary to look to guidance issued by the courts on what makes an organisation a public authority. Only bodies meeting this threshold face potential claims under the Act. Judicial guidance remains essential in borderline cases. The legislative background Section 6 of HRA 1998 states: Acts of public authorities (1) It is unlawful for a public authority to act in a manner that is...

This Practice Note sets out the core principles, meaning and rationale for privilege. It identifies the main categories and explains how they operate: legal advice privilege and litigation privilege (together, ‘legal professional privilege’ ( LPP)) common interest privilege joint privilege public interest immunity ( PII) closed material procedures ( CMP) It examines the effect of privilege on disclosure and inspection, distinguishes confidential documents from privileged material, and considers who owns the right, how long it lasts, and its impact on case management. Practical tips on handling privilege are also provided. What is privilege? In English law, privilege is a fundamental right enabling a party, or its successors in title, to refuse production of certain documents (see the Court of Appeal decision in Addlesee v Dentons Europe). Where privilege applies, it generally does not remove the duty to disclose that a...

What is a private law claim for breach of statutory duty? A private law claim for breach of statutory duty arises where: the defendant was subject to a statutory obligation to take a specified action that action was not carried out and the breach caused damage to the claimant Such a cause of action can be pursued against any entity bound by the duty, whether a public authority or a private organisation. For instance, section 41 of the Highways Act 1980 enables highway users to bring proceedings for a failure to maintain the highway. Additionally, where a public authority acts in breach of a statutory obligation, an adversely affected individual may seek a public law remedy by applying for judicial review. However, many statutory duties do not confer a private right to sue. Consequently, most claims against public...

This Practice Note condenses the law, guidance and practical approach to executing simple contracts and deeds. It highlights the main distinctions between deeds and simple contracts, pinpoints those transactions that must be effected by deed, and outlines the execution formalities for both. It also covers the need for signature, use of counterparts, dating, smart legal contracts, virtual execution and electronic signatures. We have created a comprehensive, interactive collection to help users recognise and navigate the concepts and recurring issues that arise when executing documents. Each section or phase provides practical guidance, precedent-style clauses and Q& As relevant to that stage. For further information, see: Execution collection. Creating contracts A contract is a binding agreement that confers rights and imposes obligations on two or more parties. There is extensive case law on contract principles which is not examined in detail here. Put simply, for a...

Context Under section 57 of the Town and Country Planning Act 1990 ( TCPA 1990), planning permission is needed for the undertaking of any development of land. The term ‘development’ is set out in TCPA 1990, s 55(1) as: the undertaking of building, engineering, mining or other operations in, on, over or under land, or any material change to the use of buildings or other land Accordingly, consent is necessary for operational development and for material changes of use. See Practice Notes: Operational development and Material change of use. Who can apply for planning permission? Any person may submit a planning application for the development of land; the applicant need not own the land to which the application relates. However, the applicant must notify freehold and leasehold owners of the land concerned prior to submission of the planning application, see: Publicity of planning...

The Investigatory Powers Act 2016 ( IPA 2016) reshaped the statutory regime governing covert surveillance by public bodies, a regime that was largely, though not entirely, contained in the Regulation of Investigatory Powers Act 2000 ( RIPA 2000). Local authorities hold powers under both IPA 2016 and RIPA 2000. In addition, the Covert Human Intelligence Sources ( Criminal Conduct) Act 2021 allows certain public authorities to authorise criminal conduct by covert human intelligence sources. For more detail, see News Analysis: Covert Human Intelligence Sources ( Criminal Conduct) Act 2021. Surveillance powers available to authorities The acquisition and disclosure of communications data (such as telephone billing information or subscriber details) Directed surveillance (covert surveillance of individuals in public places) Covert human intelligence sources ( CHIS) (for example, the deployment of undercover officers) Local authorities employ covert methods to support their statutory...

Interested parties In the context of judicial review, an interested party refers to any person—other than the claimant and defendant—who is directly affected by the claim. Where a judicial review claim is connected to proceedings in a court or a tribunal, every other party to those proceedings will qualify as an interested party in the review; eg if a defendant in a criminal case in the Magistrates or Crown Court brings a judicial review of a decision in that case, the prosecution must always be named as an interested party in the judicial review claim. A person is regarded as directly affected if they are affected without the intervention of any intermediate agency, that is, without the involvement of any intervening body. For example, in R v Rent Officer Service, ex parte Muldoon, a local housing authority’s decision not to pay a housing benefit was...

In judicial review, noting that a document exists or once existed is usually achieved by the duty of candour, not by a formal disclosure process. Default lack of formal disclosure and inspection exercise By default there is no formal disclosure; it is not required unless the court directs otherwise. This is because judicial review turns on the legal consequences of mostly agreed facts; the court does not resolve factual disputes; and all sides owe a duty of candour to the court, so separate “disclosure” is unnecessary (though in practice the outcome is often similar). The same approach applies to judicial review, statutory reviews and appeals in the Administrative Court. The court retains a broad discretion to order disclosure, but that power will be exercised sparingly. General duty of candour All parties to judicial review are under a general duty of candour requiring them to reveal the...

This Practice Note examines the court’s status as a public authority for the purposes of the Human Rights Act 1998 ( HRA 1998), and the implications for judgments addressing relationships between non-state persons (private individuals)—the so‑called horizontal effect of Convention rights. Horizontal effect of the European Convention on Human Rights The UK was among the first signatories to the European Convention on Human Rights ( ECHR, also known as the Convention), yet before HRA 1998 the ECHR was treated merely as an international treaty, not directly enforceable by private individuals against each other in the domestic courts. Its aim was to protect fundamental rights from state interference, ie ‘vertical effect’. When HRA 1998 came into force in 2000, it deliberately and significantly altered this position; however, it made no specific provision for the enforceability of Convention rights between private individuals. Section 6(1) HRA...

The Freedom of Information Act 2000 ( FIA 2000) grants a public right to access information held by public authorities, including government departments, local institutions, educational institutions, publicly owned companies and other public organisations across England, Wales and Northern Ireland. Anyone—individuals, companies and foreign nationals—can request disclosure of any information held by such authorities. This Practice Note outlines common procedural pitfalls and issues that public authorities may encounter when dealing with freedom of information requests ( FOI requests). Requirements for a valid FOI request How much information needs to be included in an FOI request? Under FIA 2000, s 8, an information request must: be in writing provide the requester’s name and a contact address set out or describe the information sought The Information Commissioner’s Office ( ICO) interprets the written requirement broadly. In ICO decision FS50530703 it was determined that FOI requests made online or via social media...

This Practice Note considers exclusion and limitation of liability in business-to-business ( B2B) contracts. This Practice Note offers guidance on the common law and statutory controls that govern exclusion and limitation of liability clauses (also described as limitation of liability clauses, limitation clauses, exclusion of liability clauses, exclusion clauses and exemption clauses), including the Unfair Contract Terms Act 1977 ( UCTA 1977) and the Misrepresentation Act 1967 ( MA 1967). It identifies which provisions amount to exemption clauses and sets out three central matters to address when drafting them or assessing them in a dispute: incorporation construction statutory controls It also outlines the courts’ treatment of attempts to exclude or restrict liability for certain breaches (eg fundamental breach) and for different heads of loss (eg direct loss, indirect and consequential loss, loss of profits, loss of use and loss of data). It notes common...

On 24 December 2020, the UK Government and the European Commission revealed they had reached agreement in principle on the legal framework for the future UK- EU relationship. Taking provisional effect from 1 January 2021 and entering fully into force on 1 May 2021, the EU- UK Trade and Cooperation Agreement ( TCA) sets out provisions on trade in goods and services, economic and social co-operation, law enforcement and security co-operation, alongside overarching governance rules. A series of related declarations and accords supplement the TCA, among them the Agreement on Security Procedures for Exchanging and Protecting Classified Information ( SIA) and a distinct Nuclear Cooperation Agreement ( NCA). It also features placeholders and commitments anticipating additional agreements to be concluded. Publicised only a week before the Brexit transition ended at 11 pm on 31 December 2020 ( IP completion day), the deal arrived at the...

This Practice Note explores equivalent project relief ( EPR) in PFI and PF2 schemes, outlining the purpose of these provisions, the composition of an EPR clause and key cases. EPR clauses usually provide that a sub-contractor may claim compensation, an extension of time ( EOT) or relief from termination under the sub-contract only to the extent that Project Co has secured the equivalent remedy under the Project Agreement; in short, Project Co bears no greater liability to the sub-contractor than the Authority bears to Project Co. Note that in the 2018 Budget (delivered on 29 October 2018), the government announced it would stop using PFI or PF2 for new projects (see News Analysis: Budget 2018—what does it mean for infrastructure and housebuilding?). However, existing PFI and PF2 projects continue to run. What is equivalent project relief? To understand what equivalent project relief means, it is...