Monday, 29 April 2013
One Barnet: the Judicial Review finding - a moral victory, out of time
Maria Nash: pic courtesy of the Guardian
*Updated Wednesday re appeal: scroll down:
A brief statement on the result of the One Barnet Judicial Review, full post to follow:
Lord Justice Underhill has rejected the application for review on the basis that it has been taken too late.
He has, however, found that Barnet has not complied with its obligations under s.3(2) of the 1999 Act to consult, stating in the judgement:
"the Council never set out to consult about its outsourcing programme at all" ...
In an outstanding piece of creative writing by the press team at Barnet Council, this decision has been presented as a ' clear and complete' victory by Tory leader Richard Cornelius, who has absurdly explained the judge's findings on the failure to comply with the 1999 Act as being merely:
"at times critical on details of our own past consultation".
Maria Nash is very likely to appeal the decision, and more information on this point will follow in due course.
Today's outcome was, to be honest, what seemed most likely during the course of the three day hearing at the High Court. It was clear that the crucial issue in the case was not so much the merits of the arguments for review, as the point of whether the case had been brought too late.
Why was the case brought so late? It is very simple. The rules for application for a Judicial Review are not widely understood, by any ordinary member of the public. Most probably have no idea that policies or actions like these can be legally challenged in this way, and very few know that there is a strictly defined time limit which applies to any such challenge. Beyond these complexities lies another, much harder to define: knowing at what point the decision has been taken to which you ought to raise a challenge.
Confused? Not surprising: as one who is probably one of the best informed residents on this issue, and one who sat through the entire hearing, and listened to all the obscure legal arguments on this very point, I have to say that I still do not know where that defining point was, or when, or what it was. Nor, quite honestly, was it apparent in court that the legal experts involved were able to agree on this.
How, therefore, can it be reasonable to expect ordinary members of the public to know how and when to challenge this massive programme of outsourcing and privatisation?
What were we to challenge? Was it easycouncil, or Futureshape, or One Barnet?
Are they, were they, the same thing?
In fact, looking retrospectively at the development of One Barnet, it is now clear to see - retrospectively - that this was not the seamless evolution the council wished to portray, but that One Barnet was always something entirely other to Futureshape.
Futureshape was never a programme of mass privatisation: it was allegedly a way to amalgamate service provision and offer residents more 'choice' and more 'control' over their use of these services. Once re-elected, and under the direction of new Chief Executive, this plan was used as cover for the introduction of the wholescale outsourcing of as many of the council's functions that were not protected by statutory restrictions. Eventually this became known as One Barnet.
There was never any electoral mandate for this hugely significant proposal, and nor was there, as confirmed by Judge Underhill, any consultation with residents over the plans. In court, the judge's astonishment at the absence of such consultation, and the feeble statement in defence offered in the form of statements by Barnet representatives was absolutely clear.
It should be noted that there was also no proper scrutiny by councillors of any party of the plans, as the programme was deliberately removed from the reach of such process - for example in the abolition of the One Barnet scrutiny committee - and the Tory councillors who should have been questioning the policy with some degree of challenge were too lazy, and too complacent.
That many of the same Tory councillors were, by the end of the whole process, deeply worried about the scope and detail of the programme, was evident as late as theapproval meeting in December when members, including those on the executive, frightened by the emerging reality of the huge changes they had so easily endorsed, were at last raising fundamental questions about the whole concept: questions that should have been asked two years earlier.
Why did they not raise these concerns earlier? Because they did not understand the enormity of what they were being asked to approve. They should have informed themselves, on our behalf, but they chose not to. And this dereliction of duty was actively encouraged by those working for the adoption of the outsourcing programme.
Effectively, the senior management team and a handful of ideologically driven Tory councillors have duped their colleagues into offering a hugely profitable new deal for Capita, which will deliver enormous profits to their shareholders, and the mere promise, unquantifiable, unenforceable, of savings which are entirely aspirational, and delivered through means which will have a massive impact on residents, but with the loss of proper democratic control.
This is a shameful, wicked betrayal of the trust invested in our elected representatives, and will result in enormous and justifiable damage to the electoral prospects of every Tory councillor, once the residents of this borough begin to bear the impact of their decision.
That is, of course, if the deal does go ahead.
Because the story is not over.
Whatever the findings of the case, an appeal by the losing side was always inevitable. Gerald Shamash, solicitor for disabled resident Maria Nash, who made the application for JR, has today confirmed that she will seek to appeal: and there is a very good case for appeal.
The findings dismiss the challenge on the grounds that it was out of time, but also conclude that Barnet failed in its statutory duty to consult.
If residents were not properly informed and consulted, how then could they take an informed position about the remedies in law that might allow them to challenge the outsourcing programme?
If residents were kept in the dark about the real significance of the programme, and the process by which it was introduced, how could they reasonably be expected to know which was the relevant decision to challenge, and to know that the clock was ticking from the moment that decision, whichever it was, had been agreed?
The rule of measure for justice in English law is the principle of what is reasonable, and fair.
Clearly, in the case of One Barnet, therefore, justice is still to be done.
And this case is not just of vital importance locally here in Barnet: local authorities, other public sector bodies and those healthcare companies waiting to feast on the corpse of our former NHS: you may be assured that they are all watching this case very carefully.
Here is the test: if Barnet's complete failure to consult its own residents and taxpayers over the £1 billion sell off of council services is allowed to proceed, it makes a mockery of the coalition policy of localism.
What is the point of Pickles' worrying about Town Hall pravdas, and bin collections, and all the other headline grabbing trivia of much of his ministerial pronouncements, if the fundamental rights of residents to engage in the decision making procedures of local government are proved to be so easily undermined?
In his statement this morning, Tory leader Richard Cornelius insisted it would be wrong for Maria Nash to apply for an appeal. He said it would be a waste of taxpayers' money. He omitted to remind us that the private consultancy company he employs as the 'implementation partners' of One Barnet, whose fees were supposedly to be capped at 'only' £2 million, have now reached the execrable level of more than £6 million.
Such profiteering from the public purse must be stopped, and we must reclaim a sense of pride in the provision of public services provided by the public sector, locally in the heart of the local community, accountable to the local community.
And so: on behalf of the people of Barnet, and on behalf of the democratic process in every other authority and public body in the country - we fight on.
Nothing about us, without us.
Great news: Maria Nash has been granted legal aid so as to appeal the findings of the Judicial Review, on the basis that the judge found that Barnet had completely failed to consult its residents over One Barnet.
To see why Judge Underhill came to this conclusion, you may wish to read the judgement in full, now available here .
If you do so, you will understand quite how inappropriate it was for Barnet leader Richard Cornelius to gloat on Monday:
'This is a clear and complete victory for the council. We won and our opponents lost'.
No, Councillor Cornelius: the moral victory was ours, and the case was lost only due to a confusion on our part over the question of timing.
We understand that this aspect is more likely to be given a more sympathetic consideration at the appeal court.
We therefore look forward to this hearing, and once again we trust that, in the end, justice will be done.