Snapshot of UK
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
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
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.
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).
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.
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.
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
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
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.
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 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.
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,
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
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
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
Each dispatch of
a CAPSL Newsletter is followed by a rash of returned emails of members
who have changed or terminated e-mail addresses.
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.
the response from members, future CAPSL Newsletters might simply be
posted to the CAPSL website with members being notified of it by short