Public Space Protection Orders – a further tool in the local government armoury

PSPOs – or Public Space Protection Orders – were introduced under the Anti-Social Behaviour, Crime and Policing Act 2014. The PSPO provides local authorities with additional powers within a defined area to tackle a wide range of anti-social behaviours.

Despite being available for several years as a tool for local authorities to use in their battle against anti-social behaviour, PSPOs have featured in the media as a possible solution to a range of anti-social behaviours.

Birmingham City Council recently closed their consultation on the implementation of a PSPO to prevent begging which caused nuisance or disorder and anti-social street drinking. The BBC also reported that the Council had been considering a PSPO to prevent protests taking place at a school in Birmingham. In an attempt to tackle very different issues, Bristol City Council who has 15 PSPOs already in place, launched a consultation in May 2019 which would see dogs banned from a park in Bedminster. Following the decision of the London Borough of Ealing to establish a PSPO for the purpose of preventing protests and vigils outside a clinic in the borough and its challenge in the High Court, adoption of PSPOs to prevent similar protests and vigils in Welsh towns and cities were discussed by Assembly Members in the National Assembly for Wales.

The aim of a PSPO is to ensure that public spaces can be enjoyed free from anti-social behaviour. Under the Anti-social Behaviour, Crime and Policing Act 2014 ‘anti-social behaviour’ is defined as conduct:

• that has caused, or is likely to cause, harassment, alarm or distress to any person;
• capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
• capable of causing housing-related nuisance or annoyance to any person.

Therefore, and as can be seen by the wide application of the power so far, PSPOs are a broad power for local authorities.

PSPOs are made following the statutory procedure under the 2014 Act, and the local authority must be satisfied that the conditions set out under that act have been met. These are:

• activities that have taken place have had a detrimental effect on the quality of life of those in the locality, or it is likely that activities will take place and that they will have a detrimental effect
• the effect or likely effect of these activities (i) is, or is likely to be, persistent or continuing in nature (ii) is, or is likely to be, unreasonable and (iii) justifies the restrictions being imposed.

In pursing the possibility of making a PSPO, the local authority should ensure early engagement with partners and stakeholders to understand the issue which it is trying to resolve. This should include early contact with interest groups when a local authority is scoping its proposals before starting the statutory consultation.

The 2014 Act contains a statutory appeal process that may be instigated in the High Court by an interested person, meaning an individual who lives in the area to which the PSPO applies, or who regularly works in or visits that area.

For further information, please get in touch with our public law team.

Acuity Law welcomes Caroline Eaton

Caroline is an experienced and knowledgeable former local government solicitor, who, before joining Acuity, was Head of Governance and Monitoring Officer at the London Borough of Hounslow. In that role, she led on the transfer of the legal team to a shared service and subsequently managed the client side of the shared legal services contract as well as the Democratic Services and Equalities teams.

Caroline is well versed in advising senior officers and councillors on a wide range of complex and/or politically sensitive matters and ensuring lawful democratic decision making. She has also provided advice and representation to schools and a housing ALMO on a broad range of matters.

Caroline, as part of Acuity’s experienced public law team, is available to provide ad hoc or project based advice and support in respect of governance, democracy and compliance, the Monitoring Officer function, Code of Conduct and member training, public sector policy, the public sector equality duty and consultation, public service transformation, complaints, maladministration and the Local Government Ombudsman, licensing and gambling, and employment. She also has experience of health and safety, housing, prosecutions, and information governance.

Acuity Law named as supplier on major local government framework in England

Commercial law company Acuity Law has been appointed to the new legal services framework for a group of local authorities in England.

Orbis Public Law (OPL) is a partnership between the legal service departments of Brighton and Hove City Council, East Sussex County Council, Surrey County Council and West Sussex County Council.

Based in the four regional locations of Hove, Lewes, Kingston and Chichester and with a combined net operational budget of £10 million, OPL is a significant public sector shared service covering a significant region in the south east of England. Its mission is to deliver a single, resilient, sustainable, cost-effective legal service to each OPL Authority, as well as the wider public sector where appropriate, by sharing resources and expertise to reduce costs and maximise efficiency.

The new framework covers a comprehensive range of legal disciplines to reflect the diverse operations of the partnership. Acuity’s appointment covers a number of legal specialisms that include commercial contracts and procurement, information governance, local government law, litigation, employment, pensions, property, planning and construction.

The appointment to the framework follows a competitive procurement exercise. The firm was awarded a place on the panel based on its all-round offering of specialist expertise, service quality and attractive pricing options.

As well as the four contracting authorities that make up OPL, the framework also makes legal services available to the district and borough councils within the three counties of Surrey, East Sussex and West Sussex who can call-off from the framework throughout the duration of the agreement.

Rachelle Sellek, managing partner at Acuity Law, said: “This appointment marks another significant milestone for our public law practice and is testament to the way we integrate and work in partnership with public sector bodies.”

“In accordance with its goal of growing its support for the public sector and delivering greater value for its councils, residents and customers, we look forward to working with OPL, cementing existing relationships in the local government sector and developing new ones.”

With offices in London, Cardiff and Swansea, Acuity Law has doubled in size in recent years and last year advised on over 100 UK-based transactions with an aggregate value of over £1.5 billion. Its offering includes an outsourcing model for virtual in-house legal support and a technology-based service for data protection, cyber security and reputation management.

It also recently launched a unique hybrid consultancy model for talented lawyers who want full back office support and access to a team of junior lawyers without the restraints of traditional employment.

The framework is now available for use and is for a three-year term, with the option for OPL to extend for up to three years at its discretion.

Acuity Law named as supplier on new national public sector panel

Commercial law company Acuity Legal has been appointed to the new £272m legal services framework run by the Crown Commercial Service (CCS) for the wider public sector.

The new framework makes a range of legal services available to organisations across the whole of England and Wales in the wider public sector, including devolved and local government, education, health, police and emergency services, third sector and social housing organisations.

Any company that is wholly or mainly financed by a relevant contracting authority can also use the framework. Ministerial and non-ministerial central government departments will be able to access regional services for transactional property work, employment litigation or other litigation work in certain cases.

CCS, an executive agency of the Cabinet Office, helps organisations across the entire public sector to save time and money on buying their everyday goods and services. Its annual report for 2017/18 shows that £13 billion of common goods and services are now being procured through CCS.

Acuity’s appointment covers a number of legal specialisms that include property and construction, planning, intellectual property, employment, debt recovery and dispute resolution.

The appointment to the lot under the panel for a regional service provision follows a competitive procurement exercise. The firm was awarded a place on the panel based on its all-round offering of specialist expertise, service quality and attractive pricing options.

Craig Griffiths, partner and head of commercial and public law at Acuity Legal, said: “This appointment marks a significant milestone for our public law practice and is testament to our long-standing expertise in working with public sector bodies.

“We look forward to working with CCS and its customers to ensure the success of this new panel agreement, cementing existing relationships in the wider public sector and developing new ones.”

With offices in London, Cardiff and Swansea, Acuity Legal has doubled in size in recent years and last year advised on over 100 UK-based transactions with an aggregate value of over £1.5 billion. Its offering includes an outsourcing model for virtual in-house legal support and a technology-based service for data protection, cyber security and reputation management.

It also recently launched a unique hybrid consultancy model for talented lawyers who want full back office support and access to a team of junior lawyers without the restraints of traditional employment.

The framework is now available for use and is for a three-year term, with the option for CCS to extend for one year at its discretion. The framework number is RM3788.

Local Authority Ethical Standards – are yours fit for purpose?

The report on Local Government Ethical Standards (‘the report’) was published by the Committee on Standards in Public Life (‘the committee’) on 30 January 2019.

In all, the 110 page report sets out 26 recommendations, most of which are directed at the government and will require either changes to primary legislation – so not a quick fix by any stretch of the imagination given the other pressures on the government currently – or to secondary legislation and the Local Government Transparency Code, which might happen a bit quicker.

There are also a further 15 best practice recommendations for local authorities that “should be considered a benchmark of good ethical practice, which we expect that all local authorities can and should implement”, presumably before the planned review by the committee in 2020.

The report addresses a broad range of areas including the standards regime, codes of conduct and interests, investigations, the role of Independent Persons, sanctions, town and parish councils, whistleblowing, councillor roles on outside bodies, access to information, the role of political groups, scrutiny, leadership and culture.

This note cannot possibly do justice to everything set out in the report but hopefully gives a flavour to some of the aspects to look out for.

The 26 recommendations

The recommendations cover a number of areas of governance and ethics, the consideration of which will keep Monitoring Officers very busy.

One of the areas seen in the headlines immediately following publication of the report has been the proposal to bring back the power of a council’s standards committee to suspend a councillor for up to 6 months, without allowances in the most serious cases. The lack of meaningful sanctions has been of concern to Monitoring Officers, scrutiny committees, councillors and the public, so the committee’s review of sanctions will be welcome. In addition, the report recommends a right of appeal to the Local Government and Social Care Ombudsman and a strengthening of the position and role of the Independent Person.

With regard to disclosable pecuniary interests, the committee has recommended that the requirements relating to these should be decriminalised, reflecting the views of many Monitoring Officers that criminal sanctions are not effective in practice. The committee has taken on board that the current arrangements for declaring and managing interests are “unclear, too narrow and do not meet the expectations of councillors or the public” and recommends that the current requirements for registering interests should be updated to include categories of non-pecuniary interests. Further, that the current rules on declaring and managing interests should be repealed and replaced with an objective test, as in Scotland, Wales and Northern Ireland.

Monitoring Officers will welcome the committee’s consideration of their “challenging and broad” role and the acknowledgment of the practical tensions and potential for conflicts of interest that can arise in the current standards regime. The report also includes a recommendation for the employment protections for statutory officers to be extended to include all disciplinary action and not just dismissal.

It is worth noting the following recommendations, which are those not earmarked for the government to act upon:

Recommendation 1

“The Local Government Association should create an updated model code of conduct, in consultation with representative bodies of councillors and officers of all tiers of local government”.

The committee’s rationale behind this recommendation is the variation in the content of codes of conduct, where local authorities have elected to have them, which the majority have. This variation often causes confusion to the public and amongst councillors too, particularly those councillors who may be dual or even triple-hatted and who may well have different codes of conduct that apply, depending on what type of councillor they are at any given time. In addition to the variety found in codes of conduct, the committee’s assessment is that many codes are deficient in that they do not cover key areas such as social media and bullying and harassment.

The recommendation is for the model code to be voluntary and adaptable, so not quite a return to the old regime, but at least there will be a common starting point. The proposal is that the scope of the code, as regards when a councillor is a councillor, should be widened by way of amendments to section 27(2) Localism Act 2011 (‘section 27(2)’) to include a rebuttable presumption that a councillor’s public behaviour, including comments made on publicly accessible social media, is in their official capacity.

The question of when a councillor is a councillor is an aspect that many Monitoring Officers have found perplexing when dealing with complaints about the behaviour of a councillor who, for example, has posted something offensive about members of a local action group on a personal blog, or who has turned up unannounced and uninvited at a local community meeting and after introducing him or herself as Councillor X, proceeds to make an inflammatory comment.

Any help through legislative change that reduces the ambiguity that can arise when trying to determine if a councillor, whom everyone agrees was purporting to be a councillor, falls within the section 27(2) definition ‘When they are acting in that capacity’, will no doubt be welcome.

Whilst the suggested statutory amendments would not replicate the position in Wales and Northern Ireland, where any behaviour that is sufficiently serious as to bring the office of councillor or the council into disrepute falls under the code of conduct, they should help provide clarity to councillors that their behaviour in public is rightly under public scrutiny and “should adhere to the Seven Principles of Public Life”.

Recommendation 11

“Local authorities should provide legal indemnity to Independent Persons if their views or advice are disclosed. The government should require this through secondary legislation if needed”.

One of the issues highlighted by the committee, and which has prompted this recommendation, is the public interest in disclosing the view or advice of Independent Persons under the Freedom of Information Act 2000 and generally as part of an investigation, in the public interest. As Independent Persons would not have the benefit of an indemnity, in the same way that a councillor or officer would, should legal action be taken against them, the committee has recommended that local authorities should take steps to provide a legal indemnity to Independent Persons if their views are to be disclosed, with the government confirming this through secondary legislation if needed.

Recommendation 19

“Parish council clerks should hold an appropriate qualification, such as those provided by the Society of Local Council Clerks”.

The committee has recognised the pressures on many clerks in town and parish councils, who often work alone and who may, at times, need support. Issues of “serious bullying, disrespect towards officers and fellow councillors, threatening and intimidating behaviour towards staff, obsessive behaviour and deliberate flouting of the need to declare interests” have been highlighted in the report, following a disproportionate number of complaints from a very small number of town and parish councils.

This recommendation is intended to help support the clerk to address the issues identified.

Recommendation 26

“Local Government Association corporate peer reviews should also include consideration of a local authority’s processes for maintaining ethical standards”.

Local authorities, through this recommendation are encouraged to engage in peer reviews, to test the effectiveness of their culture, organisational and governance structures, and ethical standards.

Issues relating to ethical standards are highlighted in the report as potentially arising as a result of the changing way services are delivered, through for example Local Economic Partnerships, joint ventures and outsourcing, and which can give rise to conflicts of interest, where for example, a councillor is a director of a local authority company or appointed to a charity or a trust, and where “transparency of decision making can become clouded”.

The increasing complexity of local authority decision making, especially commercial decision making and outsourcing, is a challenge that was similarly identified in the Local Government Lawyer Monitoring Officer survey in 2018.

Best Practice recommendations for local authorities

These recommendations relate to aspects to be included in the code of conduct including prohibitions on bullying and harassment and a requirement that councillors comply with any formal standards investigation. They also provide for publication, explanation and review of codes of conduct. With regard to review, best practice recommendation 3 sets out that local authorities should, where possible, seek “the views of the public, community organisations and neighbouring authorities“.

As part of the strengthening of the Independent Persons role, best practice recommendation 8 sets out that an Independent Person “should be consulted as to whether to undertake a formal investigation on an allegation, and should be given the option to review and comment on allegations which the responsible officer is minded to dismiss as being without merit, vexatious, or trivial“. Many Monitoring Officers will already be doing this as a means of ensuring the transparency, independence and fairness, as far as possible, of any standards process.

It is also recommended that following a formal standards investigation, a decision notice should be published as soon as possible on the local authority website, with “a brief statement of facts, the provisions of the code engaged by the allegations, the view of the Independent Person, the reasoning of the decision-maker, and any sanction applied“.

In respect of parish and town clerks, best practice recommendation 11 is that “formal standards complaints about the conduct of a parish councillor towards a clerk should be made by the chair or by the parish council as a whole, rather than the clerk in all but exceptional circumstances“. This best practice recommendation has been included as a way of providing necessary support to the clerk in such circumstances and a means of making it clear to councillors that unacceptable behaviour is not going to be brushed under the carpet.

Linked to the issues that can arise where services are delivered other than directly by the local authority, best practice recommendation 14 addresses the need for local authorities to “report on separate bodies they have set up or which they own as part of their annual governance statement, and give a full picture of their relationship with those bodies“. It goes on to provide that the separate bodies created by local authorities should “abide by the Nolan principle of openness, and publish their board agendas and minutes and annual reports in an accessible place“.

The report also provides a useful reminder that the Seven Principles of Public Life apply to anyone who works as a public office-holder and which includes all those who are elected or appointed to public office, and those appointed to work in “the Civil Service, local government, the police, courts and probation services, non-departmental public bodies, and in the health, education, social and care services”. Local authorities may want to review how well these principles are understood by its employees, consultants, volunteers, agents and contractors and reflected in relevant policies and procedures and, for example, in outsourcing contracts.

There is a lot of thoughtful and relevant content in the report and local authorities will no doubt find it a useful resource when reviewing their current standards arrangements, governance, ethics and culture.

Procurement FAQs

This is the first in a series of public procurement frequently asked questions which we will publish on a bi-monthly basis. If you have any queries you would like to see addressed in future issues, please get in touch with a member of our team.

1: Is it permissible to use a staged evaluation process in an open procurement procedure?

When advising contracting authorities on their procurement processes, a question that we are often asked is whether it is permissible to include, as part of an open procurement procedure, a process that allows for a reduction in the number of bidders where tenders do not meet certain minimum technical (or quality) requirements.

An open procurement procedure has generally been seen as a one stage process only, where all tenders that comply with the selection criteria are fully evaluated according to the published award criteria. This is in contrast to other procurement procedures (e.g. competitive procedure with negotiation, competitive dialogue procedure, and innovation partnership procedure) which often consist of multiple evaluation stages and in which a reduction in the number of tenders (often in successive stages) is commonplace.

There is express authority in Directive EU 2014/24/EU (“the Directive“), and also in the Public Contracts Regulations 2015 (“PCR 2015“), for a multi-stage approach to be undertaken in those other procurement procedures mentioned above. Although that express authority is not included in the provisions concerning the open procurement procedure, the approach is not excluded by either the Directive or the PCR 2015.

Although some contracting authorities have taken the view that they are able to include a staged evaluation process where those bidders who do not meet certain minimum technical requirements (for example minimum threshold scores), we have also seen a reluctance by other contracting authorities to adopt this approach.

 Montte SL v Musikene

However, in September 2018, the Court of Justice of the European Union (“CJEU“) delivered a ruling in the case of Montte SL v Musikene (Case C-546/16) which clarified that when using an open procedure it is permissible to exclude tenders at an initial stage based on technical (or quality) criteria, and to only permit those who pass that stage to have their tenders assessed at a second evaluation stage.

In its judgment the CJEU ruled:

• the Directive permits open procedures in which tenders submitted that do not reach a predetermined minimum score threshold at the end of that evaluation are excluded from the subsequent evaluation based on both technical criteria and price
• this reduction in the number of tenders is permissible regardless of the number of bidders remaining in the process.

In making these decisions the CJEU noted, amongst other things, the following points:

• the Directive expressly permits the setting of minimum requirements in relation to the technical evaluation
• the Directive does not contain any rules as to how an open procurement procedure is to be conducted, with the exception of minimum time limits
• contracting authorities are obliged to base the award of public contracts on the most economically advantageous tender, and that this to be identified on the basis of the price or cost and may include the best price-quality ratio, which is to be assessed on the basis of criteria which comprise qualitative aspects such as quality, including technical merit
• as long as a contracting authority proceeds in accordance with the principles of transparency, non-discrimination and equal treatment, so as to guarantee an objective comparison of the relative merits of the tenders in aid of the overall aim of effective competition, contracting authorities are free to determine, according to their needs, the level of technical merit which tenders must provide (depending on the characteristics and the subject matter of the contract in question) and to establish a minimum threshold which those tenders must comply with from a technical point of view. The Directive does not preclude a contracting authority achieving this by setting a predetermined minimum score threshold as a first stage
• the fact that the Directive provides for the possibility of certain procedures being conducted in successive stages, does not permit the conclusion that a two-step evaluation of tenders during the contract award stage would be inadmissible in the case of an open procurement procedure.

Future Approaches

Whilst, in our experience, a number of contracting authorities have previously taken a pragmatic approach in this regard, this case does provide a helpful clarification for contracting authorities who have been unsure as to whether they can legitimately use a multiple stage evaluation process under the open procurement procedure.

Using such an approach in relation to the open procurement procedure will make it easier for contracting authorities to eliminate bidders based on the contracting authority’s particular requirements, in an efficient and structured manner.

One important point to note is that this approach is not intended to limit the number of tenders subjected to further evaluation, as would be the case, for example, in a competitive dialogue procedure where a contracting authority decides to limit the number of tenders taken through to the next stage. There is always the possibility that all submitted tenders meet the minimum requirements and therefore proceed to the next stage. Rather this approach is meant to allow those who do not meet certain minimum requirements to be removed earlier in the process. In the Montte SL v Musikene case, the CJEU seemed to attach importance to the fact that the contracting authority could only eliminate bidders which failed to achieve the minimum score and it did not have the discretion to eliminate bidders which met the minimum requirements by selecting only the “best tenders” to go through to the second stage

In light of this, it would seem sensible that any criteria set by contracting authorities for the elimination of bidders at the first stage of an open procedure are absolute criteria (i.e. the use of minimum score thresholds). However, when setting such absolute criteria, contracting authorities should always bear in mind the relevant risks and issues of adopting its preferred approach.

For example, adopting an overall minimum threshold for the quality criteria could mean that some bidders meet this overall threshold having scored very highly in one or more areas but very poorly in another area; or if using scoring hurdles for individual quality questions, where only bids which score a specified minimum score in certain requirements will be considered. A contracting authority needs to be wary of adopting this approach for all quality criteria, especially if there are some criteria that are less important to it, otherwise the risk is that an otherwise strong bid is excluded on fairly minor grounds.

Also, whilst this case confirms it is permissible for such an evaluation process to result in only one bidder remaining in the process, this outcome may not achieve a contracting authority’s ultimate procurement objectives including value for money considerations. The contracting authority could find itself in a situation where it does not wish to accept the remaining tender and therefore has to restart the whole procurement process.

The CJEU certainly noted that if there is only one tender left for the contracting authority to consider, following the technical evaluation, the contracting authority is in no way required to accept that tender and that it is open to the contracting authority to terminate the procedure and start a new procurement procedure with different award criteria.

When devising any procurement process, a contracting authority should always bear in mind the general principles of equal treatment, transparency and proportionality, and also be mindful of its obligations under regulation 67 (Contract Award Criteria) of the PCR 2015, including the requirement to ensure the possibility of effective competition. Contracting authorities should also seek appropriate advice if there is any doubt as to whether a proposed procedure is compliant with the PCR 2015.

If you have any queries, please do not hesitate to contact a member of our Commercial Team.