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MID 2004

Number 10


Matters covered in this Newsletter

* CAPSL's Chair offers comments on a number of current UK issues

* Public Sector Law Association for Pacific Rim formed

*Secretary's Comments

Snapshot of UK Issues 

CAPSL’s Chair, Mike Kendall, makes the following points about issues in the UK. Comments from readers on similar issues in their jurisdictions would be welcomed. 

1. Freedom of Information 

UK legislation comes on stream in January 2005, from which point anyone can ask for access to, and copies of, any information held by any of the 70,000 or so public bodies in the UK.

The evidence from other Freedom of Information regimes (especially USA, Australia and Ireland) suggests that early take-up may be low but that demand will increase. 

The legislation will require a fundamental re-appraisal of information management systems and the production of data-sharing protocols between public sector agencies. 

Like most regimes in the UK, the heavily prescribed procedures will be regulated by an independent regulator – The Information Commissioner, who will have significant powers to name and shame those public bodies not performing well. 

2. Performance Management in the Public Sector 

Previous regimes introduced in the Health sector in the UK (assessment of performance by independent regulators, followed by publication of league tables) have been extended to local government in the UK. 

The first league tables of larger authorities appeared last year, ranked according to whether their performance was deemed to be Excellent, Good, Fair, Weak, or Poor. 

The regulatory framework has not been tested in the courts yet, although one or two councils are reported to be considering judicial review of the outcomes of their assessments.   

Central Government meanwhile is beginning to wake up to the fact that regulation is expensive and unproductive, and that central Government needs to define better the out-puts required and to allow local authorities, and others, to devise ways of their own of achieving those out-puts. 

A Treasury-led efficiency review by central Government is already concluding that the multiplicity of funding streams to local authorities and other agencies is expensive to administer and that new ways need to be found to consolidate them to achieve greater efficiency and accountability to central Government. 

3. Governance in the UK 

As part of the same efficiency review, the number of agencies and regulators is being looked at. Academics are preaching the need for a “new localism” which may produce new models of “Local Public Service Boards” comprising a small number of key local players combining to deliver out-puts and targets to central Government, in return for increased freedom and flexibility from central Government control. 

4. Corporate Manslaughter 

The Labour Government included commitments to produce legislation on Corporate Manslaughter in two separate election manifestos.  Pressure on the Labour Government has been maintained through a number of highly publicised national disasters, such as the Herald of Free Enterprise (car ferry capsizing) and Ladbrook Grove (train crash). 

Current thinking appears to be that Corporate Manslaughter should be restricted to the organisation and not extended to individual Directors or Managers, although no final decisions have been taken at present.  A fundamental question is whether legislation will extend to the public sector. 

Latest public announcements by central Government, suggest that a Bill may be introduced into Parliament by the Autumn; this may be topical for the CAPSL Conference in September 2005. 

5. Ethical Framework 

A national Committee on Conduct in Public Life is reviewing the number of regulatory frameworks for ethical conduct in the public sector, and will advise whether the provisions are proportionate to the benefits produced. 

Great concern continues to arise from the Code of Conduct, introduced fairly recently into local government, particularly at the way in which it inhibits participation in other bodies by elected councillors. 

A review by central Government is likely in the Autumn of 2004/Spring of 2005, together with provisions relating to conduct by officers. 

The common law relating to bias and fettering of discretion continues to bedevil councillors who participate in the consideration of issues at more than one tier of local government and it may be that central Government will be persuaded to include this topic in its review. 

Public Sector Law Association for Pacific Rim  

The Government Solicitors committee of the NSW Law Society is working with Government and Public Sector lawyers in a number of other jurisdictions to create a Pacific Rim Association of Public Sector Lawyers.

Pacific Rim Public Sector Lawyers (PRPSL), as it is called, aims to be a mechanism for exchange of ideas and provision of specialist continuing legal education for public sector lawyers in the Pacific region.

PRPSL’s aims are expected to be supplementary to and supplemented by CAPSL. 

Comments from Secretary 

Freedom of Information  

Mike Kendall’s comments on Issues in the UK are of interest. As he mentioned, Freedom of Information (FoI) law has been in place in Australian Jurisdictions for some years.  

In my experience, FoI can have interesting implications. Much of the work I do is to do with Government Procurement, often involving tendering.   

On one or two occasions I have observed disaffected failed tenderers seeking to make use of FoI to find why their tender may have failed. To the extent tenders contain commercially sensitive information about competitors, issues arise.  

In one case in NSW an application for FoI was made to obtain access to sensitive commercial information. Thankfully, the Court before which the issue was fought adopted the view that it is not simply a matter of the parties to a process labeling information as confidential to escape FoI.  

The Court view was that it must have the right to determine whether what parties assert to be commercially sensitive is or is not exempt from disclosure under FoI. 

Commonwealth Law Conference 2005 

Negotiations relating to the 2005 Commonwealth Law Conference continue. As details become available, I will pass them on to CAPSL members. 

Government Law CLE 

The NSW Law Society’s Government Solicitors Committee is to hold its annual Government Solicitors Continuing Legal Education Conference at Parliament House, Sydney NSW on 7 September 2004. Places are limited. If interested, inquiries can be sent to mailto:rad@lawsocnsw.asn.au 

Update of e-mail addresses 

Each dispatch of a CAPSL Newsletter is followed by a rash of returned emails of members who have changed or terminated e-mail addresses.  

Could members let me know if they intend to change their email address? Also, if you would prefer not to receive the Newsletter please let me know. 

Depending upon the response from members, future CAPSL Newsletters might simply be posted to the CAPSL website with members being notified of it by short email.