Public law and challenging funding cuts - Selman Ansari


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Public law and challenging funding cuts - Selman Ansari

  1. 1. Public Law and Challenging Funding Cuts Selman Ansari 14 October 2010
  2. 2. The starting point  Is your arrangement with a public authority covered by private or public law? Private Law  Contracts with public authorities will generally (but not always) be governed by private law.  Private law remedies are aimed at preventing breaches of agreed terms and tend to be more certain. Public Law  Grant funding  Funds provided under a grant
  3. 3. Causes…  Irrationality  Failure to satisfy legitimate expectation  Inadequate consultation  Failure to properly conduct equalities impact assessment Effects…  Quashing  Remittance  Damages
  4. 4. A health warning…  Judges and the allocation of resources  Also, the reluctance to interfere with ‘expert’ evidence
  5. 5. Irrationality…  A basic and pervasive concept of public law; also much misunderstood  A decision is irrational when no reasonable decision maker could make such a decision on the basis of the evidence before him  The concept of “range of reasonable responses”  JR is not an appeal or a re-hearing
  6. 6. Legitimate expectation…  Where there is a practice or a promise to act in a certain way and that has been relied on  Practically:  Do the terms of the grant give you any expectation of the manner in which it will operate?  Are there terms as to how any funding will be terminated?
  7. 7. Consultation…  No free standing duty to consult  However,  if an expectation of consultation has been given, it must be done properly and fairly;  question the rationality of a decision made without consultation.
  8. 8. Equality Impact Assessments…  The Equality Act 2010 requires public authorities to have due regard to the need to eliminate discrimination and promote equality with regard to race, disability and gender as well as to promote good race relations.  Such regard is demonstrated by an Equality Impact Assessment.  Effects need to be assessed and possibly mitigated or a proposal abandoned.  Very untested area of the law.
  9. 9. Bloomsbury International Limited v The Sea Fish Industry Authority  Court allowed public law arguments to be used in a private law claim  Bloomsbury claimed that the Authority had unlawfully levied a charge  The Court allowed a private law restitution claim by Bloomsbury to have the monies paid back (outside of the 3 month time limit)  A complicated, fact sensitive, evolving area of the law
  10. 10. Tactics and Conclusion…  Analyse the events that are causing you concern and take advice early  Weak responses from public authorities make judges angry; take it further and establish the strength of the authority’s legal position  Be wary of costs but be prepared to be bold  Consider clubbing together with others similarly affected
  11. 11. Selman Ansari Of Counsel Bates Wells & Braithwaite London LLP Email: T: 0207 551 7784