Legal enquiry service
Our ad hoc enquiry service, attending to individual questions of a legal nature, accounts for the greater part of our work, with the following areas of law proving to be the most popular in terms of enquiry numbers:
- commercial agreements
- public procurement
- corporate and governance
- IP and IT
Nature of work
The enquiries that we receive are rarely simple or straightforward to answer. In general, the HEI manager involved will have explored a range of existing resources, perhaps including material available only to the sector professional associations. Unless we have encountered a similar issue before, we often have to spend time reading around a subject, before starting our research proper.
We have developed our own research strategies, and will begin by identifying any previous work that we have conducted on the subject. Wherever we can, we rely on primary sources of law, both UK and European Union, ie legislation, both primary and secondary, and case law. Increasingly, we have to consider the legislation produced by the devolved administrations. We also rely heavily on external guidance, statutory, official and otherwise. Given the mass of material available online, the ability to assess the quality and reliability of unofficial guidance is important. In particular, we value guidance that is specific to the HE sector, charities and public authorities; again, there are numerous differences in this respect, some marked and others very subtle, between the four UK jurisdictions.
Although lawyers tend to analyse legal problems by reference to a particular area of law, many of the situations on which we provide guidance cover more than one topic. For example, any one or more of charity law, equality law, consumer law, public procurement and data protection will often have to be considered, regardless of the principal subject matter concerned.
Typically, in response to each enquiry, we provide a written guidance note, extending to a number of pages of text. This will outline the nature of the enquiry, explain the relevant legal and guidance framework, and set out our analysis of the problem. Wherever we can, we shall indicate a potential solution, or the solution that appears to be most suitable, if more than one. This ‘standalone’ note can be circulated to colleagues within the subscriber institution concerned and be placed on file for future reference. Such an approach also provides a useful audit trail for our future reference.
In many cases, there will be a need for follow up work, eg in the case of proposed contract revisions, or if further input is needed from the subscriber concerned, before definitive guidance can be provided.
We firmly believe that our contribution will be greater if we are consulted at an earlier stage in the matter concerned, eg when a project is being planned, rather than the point at which binding contract documents are about to be signed. Also, as a small team serving a diverse range of subscriber institutions, it is easier for us to attend to matters if we are given a reasonable time within which to do so. Finally, some matters will benefit from a phased approach, rather than trying to provide final advice in one step.
Where an enquiry is of particular urgency, we are able to hold a telephone conference call with the manager or managers concerned and provide on the spot guidance – following up with a written note if required.
Our mandate includes the provision of instruction of non-legal managers, to enable then to attain greater familiarity with the identification, handling and resolution of legal issues. Also, in our experience, the best outcome will come from the collaboration between the service, providing supportive legal input, and the relevant HEI manager, who knows his or her subject, the background to the situation, and personnel involved, and the preferred approach and risk appetite/aversion of the institution.
Subscriber representatives are requested to explain the background to each enquiry, including specific objectives or concerns and their experience with similar situations in the past. They are also encouraged to provide feedback in relation to enquiry responses, in terms of outcome and other issues arising, as this will allow us to build on our experience for the benefit of enquiries in the future.
Typical enquiry subjects are as follows:
- contract review, including supplier arrangements, collaboration agreements involving commercial, public and charitable bodies
- adjustment of standard terms and conditions of contract
- interpretation and effect of particular provisions
- contract extensions, novations and terminations
- provision/updating of specific clauses, such as Equality, Bribery and Modern Slavery
- preliminary agreements, such as non-disclosure, letters of intent and memoranda of understanding
- contract variation and extension
- applicability of the Light Touch Regime
- thresholds and other contract valuation issues
- time limits, standstill periods
- exemptions, such as Teckal and Hamburg
- territorial application
Corporate and governance
- constitutional issues
- licensing and other regulatory issues
- student contract
- state aid
- collaboration arrangements
- equality questions
- policies and procedures
- transfers of staff
- part-time and temporary staff
- maternity leave
- review of contracts and policies
Intellectual property and IT
- IP ownership and protection
Other subject areas
- tax, insurance and pensions
- banking and financial
- charity law
- case/transaction planning
In practice, and subject to the limitations regarding representation, we have never been unable to provide guidance on the grounds that the subject matter is beyond our scope in this respect.