Wednesday, 3 July 2013

Fighting for our rights - Barnet Alliance AGM, and Gerald Shamash on the One Barnet appeal

Gerald Shamash

Although she is an eccentric socialist, according to the definition of Barnet Tory leader Cornelius anyway, or perhaps because she is an eccentric socialist, and very lazy, and not really one for joining things, and giving out leaflets and all that stuff, Mrs Angry is not a member of Barnet Alliance, and although absolutely supportive of their campaigns, does not usually attend their meetings, being rather busy chewing the end of her blogging pencil, and sitting at her desk, brooding, and plotting the downfall of One Barnet in her own idiosyncratic, eccentric way.

But last night she was lured out of her hermit like existence and attended the Barnet Alliance AGM, as we were promised a talk by Gerald Shamash, the lawyer who has been acting for Maria Nash in the Judicial Review proceedings regarding One Barnet.

Gerald is a nice bloke, and a very interesting man, and a leading expert in electoral and parliamentary law, and he is of course solicitor for the Labour Party. The fact that he agreed to undertake this case is an indication of the importance of the underlying principles at stake: the meaning of consultation, and the nature of the relationship between a local authority and the people it purports to represent.

This Judicial Review, he said, had been quite an extraordinary case. He paid tribute to the team contributing to Maria's challenge, the barristers David Gollancz and Nigel Giffin, and local bloggers and activists who have all helped to provide the evidence needed for the review. 

In fact it has been an honour to take part in this process, as well as a duty. 

Never before, perhaps, has a local authority been so carefully documented by its citizens as the Tory council here in Broken Barnet, an undertaking and a committment made necessary by their absolute determination to use the power invested in them against their own electors, rather on their behalf. 

This JR is our attempt to hold them to account, in the ultimate way, by the due process of the law: if we succeed, or fail, as he explained, the significance will be not just for the people of this borough, but in communities all around the UK.

The reason that Maria has been given leave to take the challenge to appeal is because the issue of consultation is of such importance: the law is clear, the authority must consult  - but Judge Underhill found that Barnet never intended to consult residents about the One Barnet privatisation of council services. 

The problem was with the timing of the JR application: in his finding, the Judge held that this should have been done early in the process, in 2011, but Maria's case is that the time should have been linked to the decision by Cabinet on 6th December last year. If, as the judge thought, the relevant decision was in 2011, clearly there had been no consultation since that point.

The appeal will be heard by Lord Dyson, the Master of the Rolls, and the second most senior judge in the country. He has chosen to hear this case, which is significant, and another indictation of its interest and importance. His decision may be challenged by either party at the final level, the Supreme Court.

The question of the timing of the appeal is an interesting point: as we know, Barnet panicked when leave was granted to Maria, as this spoilt their plans to go ahead with signing the contract with Capita. They claimed to be insisting on an early hearing in July, and then it emerged that their QC was not available at all that month. An October hearing was proposed, and for a while it seemed that the authority would go ahead with signing the contract anyway. 

In that case, the authority would hope that even if the deal was struck out, the judge would feel it was too late to enforce the remedy of termination as too much disruption would be caused. But oh dear: the court ordered a July hearing to go ahead, and Barnet have been obliged to proceed with a different QC.

Gerald was asked about the implications of interim contracts: and Libdem councillor Jack Cohen then informed the audience that in fact last week's Cabinet meeting had approved such an agreement with Capita, and that this decision had been exempted from call-in.  

"That the Committee authorise a waiver of the Contract Procedure Rules and approve the Council entering into an interim contract with Capita up to a value of £14.7m to secure the business critical activities detailed in Section 9 of the report in order that the Council can continue to provide effective services. The arrangement will be in place until 31st January 2014 or until the outcome of the appeal is known when the interim contract will either be replaced by the full NSCSO contract with Capita or a review carried out to ascertain future options will be undertaken."

So: this is supposed to be a temporary arrangement to be in place until such a time as the legal challenge is resolved, however: this is most probably an adapted form of their strategy of delay - allow the gentlemen callers in the One Barnet House of Fun to run up the stairs, before paying, and then declare themselves unable to stop, when they hear the knock on the door.

As we have commented previously, however, this is a gamble, and may well backfire, if the court is minded to disregard the discomfiture of Capita, and the inconvenience to shareholders, and the grave disappointment of the senior officers of the London Borough of Broken Barnet, and instead prefers to safeguard the principles of justice, and respect for the law.

In response to a question about the outcome, and what will happen in the aftermath of a decision, Gerald Shamash pointed out that we are moving closer to the local elections, and there would appear to be a marked degree of disunity amongst the Barnet Tory councillors: the way forward may not be as clear as the leader may think. 

He stressed the importance of the outcome, which will have serious impact on the way in which public bodies undertake consultation over major decisions, and then gave an interesting insight into an issue which was and is of national  significance, and in which he had some involvement: the attempt to challenge the government's withholding of the NHS risk register. 

This disgraceful act, in defiance of the ICO's ruling that disclosure should take place, followed strenuous efforts by Cabinet Secretary Gus O'Donnell and the permanent Secretary for the department of Health, Una O'Brien, to block the FOI request made by Shamash's client Labour MP John Healey. Eventually the Cabinet exercised its right to veto the disclosure, an action with huge political implications, and one which had only been taken once before, in relation to legal advice given prior to the Iraq war. He remarked that it would have been interesting to have tested this decision by judicial review.

Mrs Angry smiled wrily to herself thinking of the part played in this desperate sequence of events by our own local MP, Mike Freer, who, you may recall, tried his best to impress his senior Tory colleagues by endorsing the withholding of the risk register: in the parliamentary debate he declared:

"The release of the risk register is seen as an opportunity by the opposition to cherry-pick doomsday scenarios the register may contain. It is simply a charter for shroud-waving."

Freer does not like Mrs Angry reminding the residents of Broken Barnet of his support for the covert destruction of our NHS, and the last time she did so blocked her on twitter, and he would no doubt prefer her, as he told her the other day, to 'say something nice about him'. 

What a shame.

Mrs Angry prefers to protect the best interests of the residents of this constituency, and tell the truth, knowing only too well the terrible and declining state of our healthcare service in this area, the unreported rationing of services, and tests, and referrals - the rapidly increasing difficulty we now face in gaining speedy access to the treatment we may need as our NHS services are broken up and laid open for the exploitation of the private sector.

At the same time in the last year we have seen the Royal Free hospital prioritising scans for private patients, and it is rumoured the empty floors of the new Finchley Memorial hospital await the occupation of private wards. 

We need our local representatives to fight for the best provision of care, rather than to facilitate the commercialisation of the NHS. From easycouncil to easydoc? Nice. 

Some of the indefatigable women of the Barnet Alliance

Back to the meeting, and more points from the audience. Helen Davis from Barnet Unison described the effect that the looming privatisation is having on the morale of council employees who are, she said, leaving in droves. She reminded us of the insensitive email sent to staff by CEO Andrew Travers after the JR decision, which was so triumphant, claiming victory, a victory which, as she pointed out, meant - You lost! You're going to be sacked!

The ethos of service to the community, she observed, is rapidly being stripped away. But whatever happens after the appeal, we must all pick ourselves up, and carry on - the Barnet Spring, like the Arab Spring, after all, is about taking control of our own destiny.

A man asked about the percentage of services being outsourced: a very necessary question as Tory leader Richard Cornelius is still perpetuating the myth spun by his advisers that only 15% of services are being privatised.

Unison secretary John Burgess read out the long, long list of functions that Capita are due to take over: it is absolutely clear to anyone who heard that list that the figure of 15%  is simply ridiculous. All that will be left is children and families and adult social care, libraries and recycling. We will have, as John explained, a hollowed out council, deconstructed, and unable to bring services back to direct control if  - when - they fail the residents of this borough.

A woman raised a very important point: as the council outsources there will inevitably be cases of negligence and serious mistakes made by the new providers - taking into consideration what is happening to the withdrawal of legal aid, what will we be able to do to challenge such cases?

Here is another interesting statistic: Gerald Shamash said that 80% of the work undertaken by his firm is via legal aid. He said that the changes will be 'a real fetter on the right of the citizen to achieve justice'. 

The separation of powers involved in the changed role of the Lord Chancellor meant that the Ministry of Justice is not led by a lawyer, and this clearly has had an impact in changes to the legal system. The loss of so much legal aid work will mean junior barristers will not get the experience they need in the lower courts, which is regrettable.

Sarah Sackman, the local activist and barrister who is hoping to stand against Mike Freer as the Labour candidate in the next election - in which eventuality Mrs Angry predicts this highly intelligent and articulate woman has a damn good chance of beating him - observed that Maria Nash's judicial review application could not have happened without legal aid, and that it was of course a Labour government which had seen this right as a fundamental pillar of our welfare state - it is  absolutely crucial in the process of holding the powerful to account.

There is a local petition by a local lawyer, Emily Burnham, addressed to Mike Freer asking, perhaps rather optimistically, for his support in fighting the threat to this much needed form of access to justice - see the link here: 

Emily told the meeting that she was supported by many residents, including a large response from the North Finchley Mosque, whose representative is quoted in the local Times as saying:

It is worrying. It goes against the founding principles of legal aid. They are attacking the most vulnerable members of society and we’re supporting the campaign.”

Time for Maria Nash to address the meeting. Maria uses a large wheelchair, with an unusual design which enables her to raise or lower its height. Gerald Shamash had commented that this had uniquely enabled her, in court for her JR hearing, to look the Judge in the eye, rather than from the more usual lowly position of the complainant. Maria now gleefully demonstrated this facility, and commented that the energy of those present had raised her even higher.

This is only the start, she warned. The hard work starts now. The most vulnerable people are going to suffer - and as we get older we all become more vulnerable, but we need to show the young people what needs to be done, to fight for our rights. Why not, she suggested, become revolutionaries, and throw this council out?

It was an inspiring reminder of the courage and determination of this woman, in the face of shabby accusations from the Tory leadership, which dares to seek to blame her for the cost of the legal challenge to One Barnet, and yet sees no shame in the reckless gamble and profligate extravagance of their own proposals, or the millions of pounds of residents' money already paid to private consultants profiting from the imposition of One Barnet on a community,  without discussion, without their consent, and against their will.  

Nothing about us, without us.

The hearing for the appeal of the One Barnet Judicial Review will be held at the Royal Courts of Justice on the 15th and 16th of July.

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