‘Repricing’ slashes £4.7bn off LandSecs’ portfolio

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Linde in Singapore Oiltanking deal

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Peak Scientific expands presence in India

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Freedom of information – update on recent FoI cases

first_img Public sector contractsWhen it comes to public sector contracts it is now common for aggrieved bidders (as well as other interested parties) to make a FoIA request for information which will give them an insight into how the bids were evaluated and what scores each bidder received. In Fred Keene v ICO and Central Office of Information (EA/2008/0097 14 September 2009) the appellant requested tender evaluation forms in respect of all those who submitted bids to the Central Office of Information (COI) for providing reprographics services. In all there were 14 tenderers and 28 evaluation forms (completed by two evaluators). In response to his request the appellant was given his own company’s evaluation information but not that of others, on the grounds it was commercially sensitive (section 43). The tribunal analysed all the information contained in the evaluation forms. It ruled that section 43 was not engaged either as prejudicing the bidders’ commercial interests or those of the COI. It noted that the forms were not an assessment of the bidders’ performance or the quality of their work. They did not contain what might properly be regarded as commercially sensitive information – for example, they contained almost no price information or financial data except for limited references to turnover in the ‘comments and notes‘ section. Such information would, in any event, be publicly available from sources such as Companies House. The key part of the evaluation form simply contained a score for each bidder against certain criteria. A number of these criteria were clearly specific to COI. There was no evidence before the tribunal that, as far as reprographic suppliers were concerned, COI’s criteria were likely to be the same or similar to other buyers of such services such that any negative assessment by COI would have the prejudicial effect that was claimed. The tribunal also took account of the fact that, as at the date of the request, the disputed information was already two years old and the information on the basis of which the applicants was assessed (for example, size of company and client list) may well have changed. The tribunal also noted the existence of the FoI (Civil Procurement) Policy and Guidance document published by the Office of Government Commerce relating to requests for civil procurement under the FoIA (see www.ogc.gov.uk). While this is not legally binding, the tribunal noted that its decision was consistent with the guidance that the CoI had failed to follow. Other legislationThe FoIA is not the only piece of legislation giving access to official information. Section 15 of the Audit Commission Act 1998 gives a right to ‘any persons interested’ (for example, local council tax payers) to inspect the accounts of a local authority, as well as other named organisations, such as the NHS, at the time of the annual audit for a limited period of 20 working days. This right extends to all books, deeds, contracts, bills, vouchers and receipts ‘relating to’ the accounts, as well as allowing the taking of copies of all or any part of the accounts and those other documents. It goes considerably beyond the FoIA, mainly because it is not subject to any commercial confidentiality exemptions. Section 15 came under judicial scrutiny in a recent High Court case. In Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council and Shlomo Dowen and Audit Commission [2009] EWHC 2382 (Admin), Veolia brought an action for judicial review asking the High Court to block Nottinghamshire County Council’s decision to release details of its multi-million-pound waste management contract, as well as invoices paid by the council. This followed a request by a local waste campaigner under the Audit Commission Act. Veolia argued that inspection should not be permitted because the contract and the invoices did not relate to the council’s accounts. This argument was rejected by Mr Justice Cranston, who ruled that the words ‘relating to’ in section 15 were sufficiently flexible to accommodate the documents in question. In reaching this conclusion, he took account of the fact that the function of section 15 is to enable interested persons to inspect documents that reveal how the council is spending public money. Such a function would obviously be frustrated if various contracts and invoices under which the council made payments to third parties were excluded from the right to inspect. Veolia also argued that a wide interpretation of section 15 would lead to confidential information in the contract and invoices being disclosed. The judge ruled that commercial confidentiality was not relevant under section 15, which only contained an exception for personal information. The recent controversy over bonuses paid to civil servants employed by the Ministry of Defence highlights the public interest in salaries and bonuses of public sector officials. The information commissioner’s guidance under the Freedom of Information Act 2000 (FoIA) on disclosure of employees’ salaries states that public authorities need only disclose salary information within a £5,000 band unless any of the following exceptional circumstances arise:A recent information commissioner decision under FoI (Department for Transport (FS50250552 24/09/2009)) involved a request for information relating to the exact salaries and latest bonuses of each chief executive of an agency of the Department for Transport (DfT) and for the permanent secretary. The DfT explained that some of the information requested was publicly available. The 2007/08 annual reports of the DfT and the relevant agencies contain salary information relating to the individuals concerned, within £5,000 bands. The department applied the section 40(2) exemption to withhold the information relating to the exact salaries and bonuses of the individuals concerned. Information in any formSection 84 of the FoIA defines information as ‘information recorded in any form’. This includes information held on paper, computer, video and audio as well as that contained in manuscript notes. But what of marks made on documents? In O’Connell v the Information Commissioner and Crown Prosecution Service (EA/2009/0010) (17 September 2009) the Information Tribunal considered access to manuscript notes made by a defence barrister on his client’s typed police interview record. The commissioner’s view was that some of the notes, which were just marks on a document, were not information for the purpose of the act. On appeal, the tribunal rejected this submission. In its view, however tenuous and potentially misleading the material sought may be, it still constituted information, even if it was only information to the effect that certain marks had been made on certain sheets of paper held by the public authority. The tribunal did, however, rule that the requested information was sensitive personal data and there was no justification in schedule 3 of the Data Protection Act to allow disclosure. Consequently it was exempt under section 40(2) of the FoIA, being third-party personal data. The commissioner agreed with this approach. He ruled that since in this case overall salaries, which include bonus payments if made, have been provided to the complainant within a £5,000 band, this provides the public with an overall picture of the amount of public money being spent and gives them an opportunity to scrutinise the decision. Disclosure of the precise salaries and bonuses would invade the privacy of the subjects which could not be justified. there are current controversies or credible allegations; there is a lack of safeguards against corruption; normal procedures have not been followed; the individual in question is paid significantly more than the usual salary for their post; or the individual or individuals concerned have significant control over setting their own or other’s salaries. Ibrahim Hasan, IBA Solicitors, Dewsbury , and is also a director of Act Now Traininglast_img read more

Quiz of the year

first_imgTo continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Corporate manslaughter: When they read you your rights

first_imgSubscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our community Subscribe now for unlimited access Get your free guest access  SIGN UP TODAY To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletterslast_img read more

What will the insolvency bill mean for construction contracts?

first_imgGet your free guest access  SIGN UP TODAY Subscribe now for unlimited access Stay at the forefront of thought leadership with news and analysis from award-winning journalists. Enjoy company features, CEO interviews, architectural reviews, technical project know-how and the latest innovations.Limited access to building.co.ukBreaking industry news as it happensBreaking, daily and weekly e-newsletters To continue enjoying Building.co.uk, sign up for free guest accessExisting subscriber? LOGIN Subscribe to Building today and you will benefit from:Unlimited access to all stories including expert analysis and comment from industry leadersOur league tables, cost models and economics dataOur online archive of over 10,000 articlesBuilding magazine digital editionsBuilding magazine print editionsPrinted/digital supplementsSubscribe now for unlimited access.View our subscription options and join our communitylast_img read more

Tax

first_imgFailure to pay duty – Penalty – Dishonest evasion of duty Eastenders Cash & Carry plc v Revenue and Customs Comrs [2012] All ER (D) 126 (Aug) applied. In June 2011, quantities of alcohol were detained and removed by the defendant Revenue and Customs Commissioners (the Revenue) from the claimant’s warehouse and six retail premises. Small quantities of spirits were also seized as liable to forfeiture. Also, a lorry operated by the claimant in the course of its business containing a full load of alcoholic goods was seized as being liable to forfeiture. On 28 July 2011, the first in a series of Seizure Notices (the notices) were issued in respect of the detained stock. Within the notices the stated reasons for seizure was as follows in each case: ‘pursuant to section 139(6) of the Customs and Excise Management Act 1979 and paragraph 1 of the schedule 3 thereto the [revenue] give you notice that… certain goods have been seized as liable to forfeiture under sections 49 and 100(2)(c) and (e) of the Customs and Excise Management Act 1979 and section 49(3) of the Alcoholic Liquor Duties Act 1979 in that no evidence of UK duty payment has been provided’. The claimant sought judicial review of the notices. The claimant submitted, relying on the case of Eastenders Cash & Carry plc v HMRC [2012] All ER (D) 126 (Aug), that the notice of seizure was defective in law as the ground given by the revenue was not in law a relevant one under the governing legislation, namely schedule 3 paragraph 1(1) of the 1979 act. Under the governing legislation there were a multitude of factual situation giving rise to goods being liable to forfeiture none of which were mentioned in the notices. The defendant submitted, inter alia, that the issue was to be approached with realism and it had been clear, given the factual context, why the goods were being seized (non-payment of duty). The application would be dismissed. Paragraph 1 of schedule 1 of the 1979 act was a straightforward provision and was not to be construed as requiring a notice to be set out to a prescriptive formula or in a manner of a pleading. The case had to be looked at in substance and not technically. It was clear to the recipient of the notices that the goods had been seized because of the alleged absence of duty payment. The references to specific statutory powers providing for forfeiture for non-payment of duty when taken with the phrase ‘no evidence of UK duty has been provided’ was a perfectly acceptable statement of grounds for seizure. R (on the application of First Stop Wholesale Ltd) v Revenue and Customs Commissioners: Queen’s Bench Division, Administrative Court (London) (Mr Justice Singh (judgment delivered extempore)): 5 October 2012 Marc Glover (instructed by Rainer Hughes) for the claimant; James Puzey (instructed by the Revenue and Customs Commissioners) for the Revenue.last_img read more

Solicitors miss a beat

first_imgA rum lot, the new police and crime commissioners elected on record low turnouts last week. In terms of diversity of race and gender they make the senior judiciary look positively heterogeneous; but at least there is some variety in professional qualifications for the new post. Predictably, there are several former police officers. There are also a surprising number of ex-military types. When it comes to legal qualifications, however, the field is smaller. Obiter counted six former lay magistrates. We also had a former minister with responsibility for magistrates, Jane Kennedy (Merseyside). However, Obiter could identify only two qualified legal professionals – Vera Baird (Northumbria) a barrister and former solicitor general, and Winston Roddick (north Wales). Roddick, who stood as an independent, is a former counsel general to the Welsh Assembly. He is also unusual, if not unique, at the bar as having begun his career as a police constable in Liverpool. Have you spotted what’s missing, yet? Yes, of the 41 new commissioners, not one appears to be on the roll of solicitors.last_img read more

Finlay Carson MSP makes a Special Visit to Sainsbury’s Newton Stewart

first_imgAddThis Sharing ButtonsShare to FacebookFacebookFacebookShare to TwitterTwitterTwitterShare to LinkedInLinkedInLinkedIn11th August: Finlay Carson MSP member for Galloway and West Dumfries visited a Sainsbury’s store today to meet colleagues and local customers. He was welcomed by the store manager and taken on a tour of the Sainsbury’s superstore Newton Stewart. Craig, Store Manager at Sainsbury’s Newton Stewart added: Mr Carson learned about the stores new Local Charity Partner, Dumfries and Galloway Blood Bikes, which is a charitable organisation set up by local volunteers to deliver essential blood and urgent medical supplies, out of hours, between hospitals and healthcare sites in South West Scotland and sometimes beyond. Finlay Carson MSP said:“I would like to thank Craig and his staff team for welcoming me on a visit to the Newton Stewart store.  As well as taking me on a tour of the store and explaining how the store operates, they told me about their work within the local community.  This year round activity includes raising money for local causes, which is absolutely fantastic.  I was particularly pleased to see the team from D&G Blood Bikes there.  It is a terrific initiative and I am delighted that Sainsburys have selected them as their local charity of the year – they deserve all the support they can get.  The staff at the Newton Stewart store are a credit to the company and it was a pleasure to be able to go along and speak with them”. “It has been great having Mr Carson in to our store to introduce him to our customers and colleagues. He was very interested in discussing the day-to-day working of the store and our work within the community. While Mr Carson was in store, we were also lucky enough to have our local charity of the year, Dumfries and Galloway Blood Bikes, raising money and generating awareness of the charity. We had a great visit and it was a pleasure to meet him.”last_img read more