Thursday, 21 March 2013
Absent friends, or: the more informed end of the scale: Day Two of the One Barnet Judicial Review
Is it significant, do you think, that no Tory councillor has shown up to the One Barnet Judicial Review? No Cabinet member, no backbencher: no comment in the press, nothing on twitter ... not one of them are prepared to come to court and see justice done. Cabinet members Daniel Thomas and Robert Rams have been conspicuous by their absence, although mentioned in court.
Labour councillors Arjun Mittra and Alan Schneiderman have both attended: it would be a mere hop, skip and a jump for say Councillor Tom Davey, who works round the corner at British American Tobacco - he walked past Mrs Angry only the other week, when attending the libel trial, looking rather alarmed to see her stepping out of Temple station.
But no: we see only Captain Cooper, resigned to his fate like an officer at a courtmartial, and the dutiful Mr Lustig, and today we were also accompanied by the interim Chief Executive (think he is still interim - hard to tell, in Barnet) Mr Andrew Travers.
Also not present in court today, but present in a legal sense, and in some representative, abstract form, with a totemic status revered by all, was Mr John Dix, resident, blogger and demi-god, who passes under the name of Mr Reasonable.
John Dix was referred to several times throughout the proceedings today, revered as the symbol of informed opinion in Broken Barnet, or as Miss Carss-Frisk, QC for Barnet Council put it, 'on the more informed end of the scale' ... Not just any old opinion, that is: informed opinion: a sort of benchmark. Could Mr Dix be reasonably be expected to have known when the right time was to have applied for Judicial Review? This, readers, is the lynchpin of the case, and may well decide the outcome.
The day's proceedings began with a reference to Mr Dix and a response to a question he had made re consultation.
The council's response to the issue of an obligation to consult is very confusing: it appears to be that they were under no obligation to consult in the sense that the legal challenge would suggest should have been the case, but at the same time it insists that it did consult, and as we have heard, is submitting evidence regarding budget consultation which it says was really about the One Barnet programme of outsourcing.
Apart from Mr Reasonable, another semi-mythical figure whose absence was keenly marked today was a Mrs Burkett.
Mrs Burkett was the subject of an important case, a legal precedent to which the Judge and the two barristers referred throughout the day's hearing, because the findings refer to the proper point at which a Judicial Review may be taken. Her name was invoked with reverence at repeated intervals, a reminder that there is a time limit, a clock which starts ticking once the definitive decision in a contested case is made. The contentious matter, in regard to the One Barnet outsourcing programme, is when that moment was: how to identify the crucial decision.
If an informed resident like John Dix was not sure, is that an indication in favour of the Judge acting to use his discretion to extend the period in question? We shall see. It might seem to us that that is the only fair conclusion to make, but what do we know? We may be punished for our lack of legal knowledge, and our inability to identify a point in time which those who are trained in this part of the law clearly find almost impossible to agree upon themselves.
Judge Underhill observed that should he decide that the case is not out of time, and acts to strike out the decision made by Barnet Council to enter into the contract with Capita, it would be 'disruptive' but it would not be 'the end of the world'.
Also under consideration this morning was the matter of PSED: public sector equality duty. The claimant's counsel maintain that an EIA, equalities impact assessment, produced earlier in the process, would have better informed it, influenced the criteria chosen for the tender. As it is, the deal may mean that there will be fewer and different members of staff, which would potentially create an impact on protected groups through the creation of a smaller knowledge base. Capita has promised big savings: these must be acheived but we did not know if that will be done without an impact on vulnerable groups as we were not privy to the details of the bid.
Next, onto the subject of 'fiduciary duty', a reference to concerns raised by trade unions, and and more homage to the informed man, Mr Dix, who had stated he thought it 'irrational' to claim that savings would be made from the outsourcing programme. It was also noted that other options had not been costed. Nigel Giffin thought John had made 'a compelling argument'.
After lunch, it was the turn of Barnet's QC, Monica Carss-Frisk, to address the court. She thought that not only was the challenged out of time, it should be rejected because too much money had been spent on the programme already, which was a most interesting view. She also worried about 'third parties', later referred to, rather poignantly, as 'the innocent tenderers' who had spent a very considerable amount of money.
At this point the judge said that they could have turned up to protest, but they had not.
Miss Carss-Frisk thought that what would follow a successful Judicial Review application would be cuts in frontline services, and certainly redundancies. She also suggested, although was not entirely certain, that Mr Dix, the man of the moment, was 'an associate' of claimant Maria Nash. The implication of such a suggestion was not explained.
A discussion ensued regarding the practicalities of the council being obliged, in the case of a decision by the court, to carry out a full consultation, and what impact this would have on the deal with Capita. The Judge thought it possible that Capita might 'go off in a fit of pique', and anyway it would not be easy, but he did not think Mr Giffin had suggested that it would be.
After Miss Carss-Frisk suggested the council could find itself having to consult on matters every year, he disagreed and said it would not be necessary every week, every month: you do not go and outsource very often, and why is that so terrible?
The day ended soon after, with the Judge commenting that the last three quarters of an hour had revealed the heart of the case. It was observed that important questions were being raised for council practice in the future.
Mr Justice Underhill will be reserving judgement, but the case resumes tomorrow for the third and final day of hearing.