Tuesday, 16 July 2013
It could all go horribly wrong: One Barnet, in the dock once more
Court 71 is hidden away at the far side of the Royal Courts of Justice, almost impossible to find, at the end of a labyrinthine route of tiled corridors, and stone stairways, and double doors, the appeal court, the Master of the Rolls court, almost the last corner of this gothic building, and almost the last chance in the process of Judicial Review.
Waiting in court were no representative of our Tory councillors, but a small number of senior officers, including our own Captain Cooper, former Director of Commercial Services, and the Tooting Twister, Mr Chris Palmer, sometime spin doctor for the council. We meet again, he muttered, rather thrillingly, as he squeezed past Mrs Angry to his seat. Mrs Angry breathed in, admired Captain Cooper's tie, and asked if it was a lucky one. No, he said primly, it is a work one, and then, casting an eye over Mrs Angry's strawberry pink Boden blogger's uniform: is that a holiday dress? Mrs Angry thought about the meeting where she had first worn it - ah, no, she replied, this is my TUC dress.
That ended our Outfit Of The Day discussion. Mrs Angry consoled herself with greeting her friend from Capita, who had introduced himself at the last hearing, but now appeared to be rather shy, despite her greeting, and kindly meant suggestion that everyone extend a warm welcome to him.
The court rose, and now enter three judges: the Master of the Rolls himself, Lord Dyson, to the left Lord Justice Davis, and to the right Lady Justice Gloster. Maria Nash sat at the front of the court, in her levitating wheelchair. Her solicitor Gerald Shamash, was accompanied by QC Nigel Giffin, and barrister David Gollancz. Permission was asked to tweet, but their lordships were perplexed: what is this practice, asked the Master of the Rolls? Lord Davis thought it might be a distraction. Mrs Angry was secretly relieved, as it is hard work tweeting, and note taking, and trying to navigate the flow of arguments, back and forth.
And back and forth it went, all day, beginning with the argument presented by Maria's QC. At the beginning of his submission there was a reference to a document from Barnet Council, which Lord Davis described dismissively as 'doom and gloom caused by the delay'. Mrs Angry fixed his Lordship with her beady eye: an interesting beginning, she thought ...
The old familiar issues from the Judicial Review were laid before their lordships, but with careful reference to the findings of Judge Underhill, who had found that the crucial decision on which the review should have been pursued, if in time, would have been either in March or May 2008 - which, you might ask, and Mr Giffin duly argued that this very uncertainty is itself of vital significance.
Equally, if the decision was made around that time, clearly statutory obligations such as the Equalities Impact Assessment were not performed until the very last minute, just before the meeting on the 6th December 2012, when councillors approved the deal with Capita, and the date which Maria's counsel submits was the crucial decision regarding the matter of timing.
If such obligations were carried out so late in the process, how could they have informed the formulation and specifications of the proposed contract?
The December meeting was significant because even then, at that stage, the members could have chosen not to proceed with the process of outsourcing. A 'preferred bidder' was just that - and 'it could all go horribly wrong' - the councillors might feel that for some reason they would not appoint the preferred bidder, but might feel after all that it was not good enough. An issue such as the EIA might have proved to be 'a potential showstopper'.
The decision of 6th December claimed Nigel Giffin, was a real one, and clearly one can see from the report submitted that councillors were expected whether or not to go ahead with the deal. It may have been that the members thought that the Capita bid was 'less good than the authors of this report thought it was ...'
Consultation could not have taken place after this meeting.
Reference was given to the guidance, such as it is, from the Secretary of State. All parties in court today could agree on one thing - this is inadequate. Eric Pickles might like to consider, thought Mrs Angry, as to whether or not the lack of clear definition on the subject from him is really responsible for the One Barnet dispute, rather than a group of disaffected residents and citizen journalists ... and here is a favourite theme of ours - the fatal flaw in the localism agenda - the lack of process by which residents and taxpayers can engage with their elected representatives in any meaningful way during the course of any administration on issues of immense importance, if the elected authority refuses to consult with those on whose lives the impact of change will be felt.
Back to the question of timing: this is not a case of the claimant standing by, waiting so as to deliberately ambush the process. One of many references to the Burkett case now, an important precedent with rulings on the matter of legal challenges that may appear to be out of time, but are allowed in certain circumstances. Is Maria's case to be one of those exceptions? We shall see.
After lunch, Nigel Giffin continued his submission, and there were further case rulings to be highlighted, and then we moved on to the interesting subject of consultation, which of course, said Giffin, the council did not undertake in regard to outsourcing. We looked briefly at the few instances of any engagement with members of public: the risible Ideas Website, the handpicked citizens panel, the online 'survey' - ah, the ebulliant Lord Davis, who had remarked earlier on the awful jargon used by the council in its One Barnet documents, let rip now with an ascerbic swipe at the language used in the survey, with particular reference to the 'customer experience' ...
Muddled words, he observed, with a fair degree of intemperence, can sometimes conceal muddled thinking ... He added, bitingly, that one did not have to be George Orwell to see this.
Mrs Angry grinned, happy to see his Lordship was fully aware of the dystopian analogies that so easily apply in this legal challenge to the Big Brother administration of Broken Barnet.
Dinah Rose QC has taken over from the previous barrister acting for Barnet Council, and had a very different style to the studied, measured tone of her predecessor. Her submission, in fact, met with a fair degree of mutinous reaction from members of the public present in court.
She began by asking the court to consider the plight of the 'innocent third party' in the case. Mrs Angry had to think about this for some time before she realised she was referring to Capita.
Miss Rose informed us that she intended later to refer to the concern expressed by Barnet's Chief Executive, Andrew Travers about - wait for it - the effect that the legal challenge and these proceedings were having on the morale of staff members.
Members of the public in court gasped in astonishment at this revelation, as you might imagine.
Miss Rose was concerned also, she said, about the interests of residents.
The residents in the court were not impressed by her concern, and demonstrated this, in a rumble of disapproval. She remarked on their 'snorts of derision' but noted there were many other residents not present in court.
It is a very small court, thought Mrs Angry, but she could not recall seeing any queues of residents waiting to come in to offer support to the council. Perhaps they were still lost in the building somewhere?
It was hard to follow her argument, but it seemed that the complainant was being blamed for complaining too late in the proceedings, and thereby placing the innocent third party, ie Capita, at risk of financial loss.
Lord Davis launched the interesting suggestion that if they had consulted, then none of this might have happened.
Miss Rose held that Burkett did not apply because that case referred to planning permission, which has different procedures and implications and was clearly substantively different to the One Barnet tender process. This argument was a new direction from the line taken at the hearing, and then came another: she held that Mr Giffin had concentrated on the NSCSO bid, and had for some reason failed to consider the DRS, which with the other tender had been decided upon early on in the process and therefore that framework approval represented the decision which should have been challenged.
Back to consulation: Lord Davis wanted to know her reponse to this issue. She asserted there had been consultation. Hereminded her he had asked as to why there had not been any.
The matter of questions raised by members of the public arose now. Blogger Mr Reasonable, ie John Dix was mentioned, and she quoted a question he had made at a meeting on March 22nd 2011. His Lordship interjected that John Dix was 'highly knowledgeable about all these things'.
Miss Rose suggested to the court, to more gasps from the public, that the outsourcing programme was well known in the borough, and indeed, she said 'notorious'[, and quoted a letter to the Barnet Press. Had this material been put to Lord Justice Underhill, asked Lord Davis? No.
The One Barnet tenders, it was claimed, might be interpreted as a private commercial decision. It was not obligatory to consult every time the authority wishes to contract out services. The average resident could not be expected to understand such matters, and of course there was also the matter of 'commercial confidentiality' ... Ah yes, of course.
If you are a resident of the London Borough of Broken Barnet, you may take a different view of your role in the process of local democracy, and indeed it may be closer to that view held by Mr Pickles, than that of a mute, obedient onlooker, excluded from the difficult business of governance.
Will the council's vision of passive submission to the will of an elected administration win the day, or will the judges find in favour of something more inclusive, and a relationship of equals, a partnership between government and citizens?
Day Two tomorrow: to be continued.