Wednesday 22 August 2012

Joint Venture, judicial review? A resident asks some awkward questions

Mrs Angry overslept this morning and so has only just had a leisurely breakfast & a read through twitter, and was very pleased to note this very pertinent letter by local Barnet resident Reema Patel, posted on the website of the excellent new local campaign for a 'Better Barnet'.

Reema has written a letter to Richard Cornelius, alleged Tory leader of Barnet Council, in regard to the news we revealed at the end of last week - the astonishing decision to abandon the strategic partnership model for outsourcing the £275 million DRS council services in favour of a riskier and more costly 'Joint Venture'.

Is the 'One Barnet' Joint Venture legal?

Dear Cllr Cornelius,

This is an open letter in relation to the e-mail disclosed by the Barnet blogger Theresa Musgrove (‘Mrs Angry’). The email I refer to is the one by Pam Wharfe which states that ‘we have decided to form a Joint Venture organisation with the successful bidder’. Theresa has already pointed out some of the significant policy shortfalls of the Joint Venture initiative. I have nothing more to add to this, except to say that I agree.

I would instead like to question the legality of this ‘decision’.

As I am sure you are aware –decisions of such significance are only to be taken by Cabinet Members unless expressly delegated under the scheme of delegations or provided for by statute, to a senior officer.

Both the Local Government Act 2000 and the Council constitution say that matters relating to policy, strategy and budget are the responsibility of the Council Leader and his or her Cabinet. It is therefore worrying to come across this email which suggests that it is your council officers that make the key strategic and policy decisions in Barnet Council; particularly on a matter as important as One Barnet.

This ‘decision’ has not been delegated, as far as I can see, under any scheme of delegations or a valid decision to be taken by a senior officer. Officers are permitted to make administrative and operational decisions.

However, decisions of such strategic significance must be taken by the Cabinet. Therefore your officer’s ‘decision’ is unlawful and vulnerable to judicial review. It should be subject to the same decision-making procedure as the initial set of proposals (for a strategic partnership) were; and the business case/other documentation for this new set of proposals; including a full and thorough equality impact assessment (EIA) should be made publicly available. Public bodies must also, when making a decision, meet a basic duty of procedural fairness which, it is arguable, is being flouted by the absence of any transparency around this decision making.

If the One Barnet programme commences under the new set of proposals outlined by Ms. Pam Wharfe the programme will be judicially reviewable because there has been an unlawful exercise of power. The apparent failure to consult with diverse groups on the impact of the change of decision (Equalities Act 2010) is also another consideration. There are also a number of issues relating to the procurement process – especially relating to the requirements of compliance with the OJEU procurement process in EU law.

I would urge you to reconsider this new course of action; and in particular to reconsider the entire outsourcing exercise which appears to be a structural distraction at a time when we desperately need real leadership. Your time would be better spent concentrating on revitalising the Barnet economy, and getting people into work.

Best wishes,
Reema Patel

Reema's point about the legality of this sudden swerve off course in the DRS tender is very interesting. She raises the question as to how the decision to adopt this course was made - where is the authority? There is, as usual, a total lack of transparency and in the context of everything we know about the way Barnet works, one can only suspect the worst.

Mrs Angry submitted some Freedom of Information questions on this very issue yesterday, as it happens, and awaits the outcome with great interest.

The other aspect of Reema's letter is equally important: the matter of equality impact assessment. Authorities and other public sector bodies have been successfully challenged in their attempts to impose privatisation of services through legal routes as a consequence of failing properly to consult on these grounds, and Barnet is particularly bad at observiing its duties in this respect.

Mrs Angry suspects that this time, in a state of panic over the scale of committment and vulnerability to risk, our council has made a very grave error, and one which perhaps signifies the imminent collapse of One Barnet's outsourcing programme.

And of course, the last question: we have seen a last minute, cockeyed attempt to make-over the crumbling DRS tender: are plans afoot to do the same to the £750 million customer service bundle on offer to BT or Capita? If the smaller tender has been revamped, surely the same arguments for it are even more compelling in the latter case?

One Barnet is dead, and has been for some time. It is a still born project, a disaster, and no amount of denial and hysterical activity flapping around the corpse is now going to bring it to life.

It's time to let go, and move on.

Update Wednesday evening:

As well as the answer to the Barnet bloggers' joint letter, Cornelius has now replied to Reema, as just seen on the Better Barnet site:

‘Dear Ms Patel

Contrary to reports this decision has not been taken. Jv remains an option, but no decision as yet. There will need to be a convincing argument for this route.

Richard Cornelius’

Well: two denials now - in direct contradiction of the comments made by his own interim director.

What on earth do we make of such an extraordinary sequence of events?

No comments: