Contracts Documents & Deeds: Remote Working During Covid ... · solution? As everyone is rapidly adapting to the new situation there is a general feeling ... Running effective Parish

Contracts Documents & Deeds: Remote Working During Covid-19 Pandemic

April 15th 2020

Deborah Evans

Chief Executive

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Dennis Hall

Bulletin Editor

Judith Barnes

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On the Agenda today

The challenges presented by the Covid-19 emergency measures with regards to contracts and documentation

The Challenge: Contracts Documents & Deeds: Remote Working During Covid-

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Maintaining Business Continuity in an Emergency

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Exercising Statutory Functions Effectively to Support Communities


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Coronavirus Act 2020

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Home or Remote Working/Isolation Measures


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‘Simple’ Contracts

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Orders Notices & Other Statutory Documents


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Electronic Signatures & Seals

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Avoid Deed Formalities - if possible


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Deeds and Witnessing: LPA 1989; Controversy & Uncertainty

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Law Commission Report


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Law Society Guidance

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Dealing with Estates in Land & Land Registration; HMLR Guidance & Practice


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Electronic documents with e-signatures

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Electronic documents with e-signatures


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Constitution: Standing Orders, Contract Procedure Rules

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Action Plan

The Challenge: Contracts Documents & Deeds: Remote Working During Covid-19 Pandemic

• Review/Amend Constitution: , Authorisations: Contract Procedure Rules: Financial Regs

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• Review Scheme of Delegations: Committee to Officer?


Finances

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• HMLR: Electronic Dispositions: Set Up ‘Arrangements’


• Familiarise Yourself with Legal Frameworks/ Contract Procedure Rules provisions for ‘Direct Awards’ in cases of Urgency/ Emergency’

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Logistics

Practical Implications

Practical examples where Local Authorities have applied a pragmatic approach with a discussion around the merits and potential consequences of the approach adopted.

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Judith Barnes


Who has authority to agree?

• Authorisation to enter into deeds and documents;

• Signing or sealing?

• Section 1 Corporate Bodies Contracts Act 1960.

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Amendments to authorities’ constitutions to provide wider authorisation to officers to enter into commitments (in writing, where possible).

Practical Considerations

• Attesting affixing the seal;

• Portable seals;

• Electronic seals;

• Remote completions;

• Power of Attorney (PoA) to execute documents as deeds without use of the seal;

• Keeping track of use of the seal(s).

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Amendments to authorities’ constitutions to allow broader methods of execution of documents and more discretion to the HOL/MO.

Outstanding issues

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Guidance for officers

A technological solution?

As everyone is rapidly adapting to the new situation there is a general feeling of ‘relaxing the rules’ - certainly we need to be adaptable but this must not come at the expense of increased risk

Now that everyone is collaborating virtually, whether with your clients, your team, your law firms, your vendors or other authorities, it is particularly important to ensure you’re doing this in a secure way

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A technological solution?

• Communications between homeworking lawyers must be as secure as possible, and it is vital to ensure that client documents are managed appropriately as there is increased potential for things going astray

• You may wish to review your practice in terms of how you are managing secure communications and collaborating as effectively as possible with internal and external contacts

• Many law firms, GCs and public authorities manage secure document exchange and collaboration through dedicated sharing platforms. For example HighQ which is a file sharing and collaboration solution now owned by corporate partner Thomson Reuters

Any Questions

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A systematic approachPolicy & Lobbying: What LLG and our stakeholders doing to help you

• Model standing orders• Detailed list of FAQs from last weeks webinar• An A-Z of technological platforms with tick boxes

demonstrating functions• Centre of Public Scrutiny Guides

Forthcoming Webinars

21st April: CEO Brief: Climate Change and Planning with Shoosmiths22nd April: Weekly LLG Brief: Behaviour and etiquette for remote meetings with the Centre for Public Scrutiny & Phil McCourt29th April: Wesleyan: An introduction to Financial Planning, the Local Government Pension Scheme and managing our finances in difficult times 29th April: Weekly LLG brief: Running effective Parish councils during lockdown

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Contracts Documents & Deeds: Remote Working During Covid-19 Pandemic

Dennis Hall Bulletin Editor LLG

April 2020


• Maintaining Business Continuity in an Emergency

• Exercising Statutory Functions Effectively to Support Communities

• Coronavirus Act 2020

• Home or Remote Working/Isolation Measures

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2


• ‘Simple’ Contracts

• Orders Notices & Other Statutory Documents

• Electronic Signatures & Seals

• Avoid Deed Formalities - if possible


• Deeds and Witnessing: LPA 1989; Controversy & Uncertainty

• Law Commission Report

• Law Society Guidance

• Dealing with Estates in Land & Land Registration; HMLR Guidance & Practice

• Constitution: Standing Orders, Contract Procedure Rules

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The Challenge: Contracts Documents & Deeds: Remote Working During Covid-19 Pandemic • Review/Amend Constitution: , Authorisations: Contract Procedure Rules:

Financial Regs

• Review Scheme of Delegations: Committee to Officer?

• HMLR: Electronic Dispositions: Set Up ‘Arrangements’

• Familiarise Yourself with Legal Frameworks/ Contract Procedure Rules provisions for ‘Direct Awards’ in cases of Urgency/ Emergency’

• Logistics

Dennis Hall , LLG Bulletin Editor

LLG

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Weekly Brief: Contracts, Documents and Deeds- Remote Working During Covid-19

Webinar Questions

The responses to the questions posted following the webinar are a thought piece on the

varying discursive points emanating from the webinar. It does not constitute legal advice and

should not be relied upon in that capacity. LLG nor any other legal entity referenced in this

document accept liability for reliance on the following content. Please exercise your own due

diligence and seek specific independent legal advice where necessary.

Virtual Meetings Question: I have a question about councillors or other participants in remote council meetings displaying political banners /posters etc as part of the background when participating in a meeting. Would this put a local authority in breach of S2 Local Government Act 1986 which prohibits local authorities from publishing or arranging for the publication of any material which, in whole or in part, appears to be designed to affect public support for a political party? This could apply when a councillor is using a council laptop and also potentially, when they are participating in a council remote meeting. S2 also prohibits a local authority from giving financial or other assistance to a person for the publication of material which the LA is prohibited from publishing. So potentially a LA could be giving assistance to someone to publish political material. Answer/Comment: We agree with your analysis entirely. But what do you do during the virtual meeting to deal with this if it arises? Could it be dealt with before hand by incorporating it into a code or at least setting out specific expectations at the outset around the code of conduct and behaviours? Question: I asked a question at the webinar on Wednesday in relation to the 6-month rule. When we cancelled meetings initially, we had a Councillor who would have attended a meeting and would have been within the 6-month rule. Once we cancelled the meeting, we didn't have a meeting that she could attend. Answer/Comment:

The Local Authorities and Police and Crime Panels (Coronavirus) (Flexibility of Local

Authority Police and Crime Panel Meetings) (England and Wales) Regulations 2020

No.392 now provides for remote meetings which would enable a councillor who

hadn’t attended to now do so. The regulations are silent in respect of the requirement

for members to attend at least one meeting in every 6 months under section 85 of the

1972 Act. Remote attendance could satisfy this requirement however, as could the

local authority granting dispensation as already exists. Members can, however, still

be disqualified under the 6-month rule and we are expecting regulations in regard to

by-elections but have not had sight of them yet.

Advice received from Bevan Brittan is worth considering here:-

Section 85 of the Local Government Act 1972 (under which the six month rule operates) refers to the member ceasing to be a member of the Council "unless the failure was due to some reason approved by the authority" prior to the expiry of the 6 month period. Despite the wording that the approval is to be made by "the authority", there is no provision within the same legislation that states explicitly that the approval for absence can only be made by the full Council. This can be contrasted against the duty to set the annual budget, and in relation to which section 67 of the Local Government Act 1992 states that this can "only be discharged by the authority".

Therefore in the absence of something similar set out in the LGA 72, it is arguable that the approval of absence under section 85 is delegable and could potentially be exercised by the CE under emergency powers.

To enable Member input on such an approval, it might be worthwhile sending an email to all Cllrs asking for any objections to the approval of absence to be provided within a set period of time (depending on the specific timescales involved regarding the 6 month cut off). The CE could then consider whether any objections received were material or well founded (in a similar vein to the dismissal process under the Local Authorities (Standing Orders) (England) Regulations 2001) as part of a decision whether or not to approve absence.

Contracts Deeds etc Question: Is it possible to complete a registerable disposition by exchanging an electronic sealed document with an accompanying undertaking to provide a wet-ink version of the same document (for HMLR purposes) at the earliest opportunity? Answer/Comment: This was covered in detail in the first part of the Webinar. Registerable dispositions must comply with the requirements of the Land Registration legislation and Rules: We suggest you contact your local Land Registry to seek to agree the practice that you suggest. Will your Vendor/Purchaser agree to this? You should note that HMLR require strict compliance with their Rules explained in the webinar. Further, a Solicitor’s undertaking to deliver a document signed is not completely watertight. Question: How do you avoid getting around a lease which requires the use of a statutory declaration, given that most law firms are now closed due to social distancing and time is of the essence? Answer/Comment: We suggest you contact your Regional Manager at the Law Society to ascertain which firms are available to provide this service; look here; https://www.lawsociety.org.uk/support-services/supporting-you-locally/# Questions: Would the Land Registry accept a deed which has been sealed by the authority and a rubber stamp signature has been used? S234 LGA 1972 seems to give authority.

https://www.lawsociety.org.uk/support-services/supporting-you-locally/

Answer/Comment: As mentioned during the Webinar and for the reasons given, no, definitely not in our opinion. Please refer to the section within the webinar. Question: If you are using an electronic seal for sealing will someone still need to sign and attest to the seal? Answer/Comment: As mentioned during the Webinar, yes (and for the reasons given) Question: Section 234 Local Government Act 1972 appears to relate to facsimile signatures of the Proper Officer in the context of functions set out in the LGA Act 1972. Does it apply to other functions, e.g. notices under the Highways Act or other functions? Answer/Comment: This requires checking with each piece of legislation concerned: usually ‘proper officer’ is referred to explicitly where it is the required/ appropriate signatory. Question: Is there a need to have traffic regulation orders to be made by seal because the authority is continuing to make these? Answer/Comment: These Orders are usually sealed as per requirements of Council Constitutions which themselves require ‘Orders’ to be under seal. We could not find could not find a ‘statutory’ requirement however. But perhaps see here: https://commonslibrary.parliament.uk/research-briefings/sn06013/ Question: Is there any problem recording the seal number and other details an electronic record such as a spreadsheet rather than a book? Answer/Comment: We see no issue with that. Question: Do PSPOs have to be sealed? Answer:

They usually are, yes. But see Anti-social Behaviour, Crime and Policing Act 2014 http://www.legislation.gov.uk/ukpga/2014/12/contents/enacted

https://commonslibrary.parliament.uk/research-briefings/sn06013/

http://www.legislation.gov.uk/ukpga/2014/12/contents/enacted

Anti-social Behaviour, Crime and Policing Act 2014 (Publication of Public Spaces Protection Orders) Regulations 2014 http://www.legislation.gov.uk/uksi/2014/2591/contents/made

Question:

Does this include a Deed of Assignment? Does this strictly need a Seal? It's for assigning a secure tenancy to another council tenant

Answer/Comment: No, we think it can be done by signature unless some statutory provision says otherwise, or contractual consideration isn’t passing between the parties. How about the enforceability of a deed being 12 years and a contract under hand which is 6 years? Many clients still require the full 12 years therefore the requirement for the document to be under seal. Answer/Comment: Yes, understood, particularly in construction, sealing will be expected for the reason you state. Apologies, we didn’t cover sealing and its significance to limitation periods! A very good point! Question: Do you have any recommendations on electronic seal providers or electronic signature programmes for councils to use - potentially we may have to do a procurement? Answer: DocuSafe was mentioned during the Webinar but we cannot make recommendations. Try LLG’s Forum to obtain views. Question: Are you concerned with version control during document exchange whilst using electronic signature and retaining a final version of the completed document, i.e. knowing which document is the final version? Answer/Comment: For commercial lawyers, this is a perpetual worry…..retention, retrieval, maintaining accurate filing records…..’Word ‘ and Microsoft are generally very good. Keep good backups. Its surprising how few legal departments have effective centralised corporate electronic filing/ document retention systems that apply to all staff. In the absence of a departmental e-filing system, devise your own and keep to it. Question: Are you aware of any local authorities that actually use electronic seals without the risk of challenge please?

http://www.legislation.gov.uk/uksi/2014/2591/contents/made

Answer: Impossible to say. As mentioned in the Webinar, the main issue we identify in the remote working context is associated with certain land registration documents. It should also be borne in mind that there is always a risk of challenge to local government; it is the merits of success that are important. Question: How do you date a deed when it has been executed and completed remotely? Answer/Comment: This is covered in the Webinar: seek agreement with the other side’s solicitors for dating documents. Question: Has anyone agreed the use of a power of attorney with the land registry and had any problems? Answer/Comment: Not that we are aware of but approach your local Registry on this.