Nigel Giffin KC

Nigel Giffin KC has practised in local government law for 25 years. He undertakes this work as part of a broadly based public law, public procurement law and human rights practice, in the course of which he appears at all levels of courts and tribunals, including a large number of cases in the Supreme Court, House of Lords and Court of Appeal.

Nigel’s clients include:

• Local authorities – he has acted for and advised a high proportion of county councils, London borough councils and other unitary authorities, and many district councils, in all parts of England and Wales, as well as authorities in Northern Ireland.
• Joint authorities and joint committees.
• Fire and rescue authorities and police authorities.
• Those dealing with local authorities, including service users, trade unions, contractors, joint venture partners, individual councillors, local government employees, regional development agencies and other statutory bodies, and central government departments.

Nigel’s practice includes both a substantial volume of advisory work, and advocacy in litigation. He is a member of the editorial board of Butterworths Local Government Reports.

His particular areas of experience and expertise include the following.

Local government powers and finance

Nigel has regularly advised in this area for many years, dealing for example with:

• General powers under the Local Government Act 1972 and the Local Government Act 2000
• Charging and trading powers under the Local Authorities (Goods and Services) Act 1970 and the Local Government Act 2003, including the interface with public procurement law
• Local Government (Contracts) Act 1997 and powers to undertake PFI schemes and other major projects
• Local government reorganisation, including the implications of unitary reorganisation for employment and for existing commercial contracts, as well as advising on potential challenges to reorganisation decisions
• Central government funding of local authorities, including e.g. issues around revenue support grant, capitalisation directions, and specific grants
• Local authority budget-setting, discretionary council tax reductions and collection of revenue
• Issues of local authority funding and service provision, including e.g. withdrawal of grants, closures of museums and libraries and leisure facilities
• Local authority capital controls and use of capital receipts
• Local authority investment powers
• Credits and debits to Housing Revenue Account
• Land disposal issues, including best consideration, use of general consents and questions of state aid
• Issues of Wednesbury reasonableness, fettering, bias, proper consultation etc in a wide variety of factual context
• Public sector equality duties
• Disputes between local authorities and external regulatory bodies such as external auditors, the Audit Commission or other inspecting bodies

Nigel Giffin is one of the leading public procurement specialists at the Bar, and is very familiar with all the relevant aspects of EU procurement law, as well as domestic legislation and the potential for judicial review in the contracting context. His advisory work has covered: Numerous town centre development schemes.

• Numerous waste disposal and collection projects, including major PFI and PPP schemes.
• Numerous local authority shared services schemes.
• BSF and NHS LIFT schemes and other similar procurements.
• The use of framework agreements.
• Recurrent issues in procurements of all kinds such as appropriate pre-qualification and award criteria, use of social clauses, variation of existing contracts, changing or abandoning projects in the course of procurement, and advice on the use of mitigation measures in relation to possible challenges.

Quasi-procurement issues such as the award of casino premises licences.

This has been another mainstay of Nigel Giffin’s local government law practice. He has frequently advised on issues such as:

• Delegation of functions
• Local authority constitutions
• Distribution of functions between executive and non-executive matters in light of authority plans and strategies and budgets
• Use of joint committees
• Operation of overview and scrutiny committees
• Standards issues and member disqualification from participating in particular decisions
• Provision of indemnities to members and officers

Nigel has provided advice in a number of difficult situations arising out of joint working between local authorities, including: the proper apportionment of losses following the discovery of fraud in the operations of a joint committee; one authority’s desire to withdraw from a major joint transport project following a change of political control; and potential financial liabilities of an authority considering withdrawal from a joint waste procurement project.

He has experience in the operation of the Freedom of Information Act 2000 and the Data Protection Act 1998 (appearing for example in the House of Commons expenses case, Corporate Officer of the House of Commons v Information Commissioner [2008] EWHC 1084 (Admin)), and has frequently advised local authorities on these issues. He has also advised on the application of the Regulation of Investigatory Powers Act 2000 in the context of local authority functions.

He has also undertaken a number of cases arising out of local authority elections, acting both for returning officers and for candidates.

Nigel began his career as a specialist employment lawyer, appearing in many significant cases including several of the early leading decisions on the application of TUPE to the contracting-out of services, and has continued to take an interest in the field, particularly as it relates to public sector employment (for example, he appeared in the first case on the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 to reach the Supreme Court, Duncombe v Secretary of State for Children Schools and Families [2011] UKSC 14). He has also developed a particular interest in the public law aspects of pension provision, including statutory superannuation schemes, and is currently acting for several trade unions in a challenge to the switch from RPI to CPI as an uprating measure in public sector pension schemes.

Examples of his work include:

• Advising many local authorities on employment issues concerning senior officers, including remuneration, disciplinary measures and termination of employment, and severance terms. He appeared in the leading case of Foster v Eastbourne BC [2004] LGR 275.
• Advising individual officers on potential claims against local authority employers.
• Appearing for the local authority in the only reported case concerning the role of a designated independent person (Leatham v Hillingdon LBC [2007] LGR 45).
• Advising authorities on schemes for compensation on the termination of employment, including associated age discrimination issues.
• Advising local authorities and trade unions on the conduct and implications of outsourcing exercises, including the application of TUPE, the use of social clauses in the light of the Local Government Act 1988, and the implications of the former Code of Practice on Workforce Matters, and the Best Value Authorities Staff Transfers (Pensions) Direction 2007. He appeared in leading TUPE cases such as Kenny v South Manchester College [1993] ICR 934 and Dines v Initial Health Care Services Ltd [1995] ICR 11.
• Advising on the proper attribution of deficits in multi-employer superannuation funds and on the setting of employer contributions.
• Advising on the proper use of admission agreements for superannuation funds, and the consequences of termination of such agreements.
• Appearing in dismissal, discrimination and equal pay claims in the employment tribunal, as well as cases on appeal from the tribunal such as Wandsworth LBC v D’Silva [1998] IRLR 193 on the incorporation of staff handbooks into contracts of employment, and Hammersmith & Fulham LBC v Jesuthasan [1998] ICR 640. He also has experience in dealing with industrial action disputes, and has appeared in a number of such cases, including in the local government context Wandsworth LBC v NASUWT [1994] ICR 81 and P v NASUWT [2003] 2 AC 663.