Thursday 21 March 2013

Nothing about us, without us: Day Three of the One Barnet Judicial Review

The Barnet bloggers go to the High Court: Mr Mustard, Mr Reasonable, Citizen Barnet, Mrs Angry and Barnet Eye

So: Mrs Angry hurried through the cathedral like majesty of the High Court, across the mosaic and marble floor of the lobby, and into Courtroom 28, where already few seats remained for the last day of the One Barnet Judicial Review. 

Aha, said Mr Mustard: this gentleman here has been asking for you ... a man who Mrs Angry had spotted on the first day grinning at her across the courtroom introduced himself. He was a twitter follower of hers, he said. More importantly, he explained with another grin, he was from Capita. Mrs Angry laughed: from Crapita? Look everyone, she announced, to the public gallery, to widespread amusement: the man from Crapita, sitting next to Mrs Angry!

You are very brave, she told him. 

I love reading your blog, he said. 

Hmm, said Mrs Angry, of course, I see you calling in. He looked worried. 

I can even tell what colour socks you are wearing, you know, she added. 

He said, oh by the way, he was only there 'as a resident'. To prove this, he was wearing a jumper, over his shirt and tie. 

How does it feel, asked Mrs Angry, to have a black heart, and no soul? He laughed. Mrs Angry was not laughing, readers. Well, only a little bit.

Ok: in fact, the man from Crapita was very nice, and had a sporting sense of humour. The man from Crapita, however, in court as 'a resident' got out his laptop and made copious notes of the proceedings. He also cast stealthy looks at Mrs Angry's tweetings and notes throughout the day, all of this activity entirely, Mrs Angry was sure, on the basis of a personal interest, and nothing to do with the day job.

Also in court for the last day were a number of senior officers from Barnet Council, and from consultant legal advisers Trowers & Hamlin, including the man who was responsible for the 8,000 page Crapita contract, a copy of which sat, marked confidential, in several folders on the bench in front of Mrs Angry, ready for the use of Maria Nash's barristers Nigel Giffin, QC, and David Gollancz.

Barnet's counsel, Monica Carss-Frisk, QC, continued her response to the case presented by the claimant, picking away diligently at those by now overly familiar themes: consultation, timing, fiduciary duty, equalities issues - had these considerations been properly addressed by the council in the course of the One Barnet programme?

Miss Carss-Frisk thought that in fact it was for the authority to decide how to consult. 

The Judge was not convinced by her argument. It doesn't really get to the heart of it, he said. One Barnet was promoted by the council as a huge change ... shouldn't that be consulted about as such? She thought that the outsourcing comprised just two projects 'under that general umbrella' ... this is a bit of One Barnet, but a huge bit, replied the judge: the degree of outsourcing is unusual, if not unprecedented. Miss Carss-Frisk did not accept that this is unprecedented. The judge thought it was certainly 'at the top of the scale'.

It was unlikely, thought Miss Carss-Frisk, that the 'average person' can contribute to high level financial decisions, a point which caused a certain amount of tutting from the public gallery. 

Barnet residents in the courtroom also sat muttering when claims were made about the forms of 'consultation', a procedure which Barnet also claim they were not obliged to undertake - 'Leader Listens', oh ... area Forums - like the Golders Green Residents Forum, suggested Miss Carss-Frisk, as Mrs Angry, the resident menace of Finchley and Golders Green Forum, groaned softly to herself.

Judge Underhill thought that the evidence offered in regard to proof of 'consultation' was an awful lot of material, but with 'rather a high level of generality'. Looking at one document he commented that 'anyone reading this would not think it is about outsourcing'.  In reference to another piece of evidence which talked about 'alternative service delivery' Miss Carss-Frisk informed the court that clearly this was about outsourcing as it referred to, let Mrs Angry check her notes ... an alternative delivery of service.

The Judge thought people will have fears that outsourcing will have consequences for services, about the different ethos of the private sector.

On to the issue of Public Sector Equality Duty, PSED. Judge Underhill said it could be argued that the EIA, Equalities Impact Assessment, should have been done at the stage of making the criteria for the tender. Miss Carss-Frisk asserted that the PSED was 'woven into the programme at all stages'. 

For the complainant, Maria Nash, Giffin QC reminded the court that he had said it was not clear that Capita was committed to maintain some 'face to face' service for affected groups of users, either for the time being or over the ten years of the contract. This was something that proved to be a difficult area to explore in court due to the 'commercial sensitivity' of the contract details.

After more arguments about whether or not an in house option had been properly considered at the appropriate stage, the court heard from Nigel Giffin once more, answering some of the points raised by his learned friend. He reminded us of the obligations laid down in guidance for consultation: especially the requirement to be taken at a formative stage of the proposals.

In order to illustrate a point about the duty to consult, and the scale of proposal that might require consultation, the Judge, for reasons best known to himself, and possibly not unrelated to what he confessed was a personal experience, chose the example of a local authority proposing to outsource its 'wasp control' service. To be frank, his Lordship appeared to have, erm, something of a bee in his bonnet about this matter. Should the possible users of a wasp control service be consulted as to a possible change of service delivery? Some people, mused the judge, leaning back thoughtfully, his hands on his head, some people will care about pest control. Mrs Angry's eyes wandered across the room to the defendants and their consultants, and legal team, and thought that the Judge was absolutely right.

Nigel Giffin thought that there were concepts of proportionality to be considered. Destroying wasps' nests was rather a red herring (sorry: but this is what is written in my notes). Quite, thought Mrs Angry. 

We adjourned for lunch.

Mrs Angry and one or two of her colleagues did suggest to the man from Crapita that he should try to buy our support with a slap up lunch, but he declined to pursue our offer. We are of course, not so easily corruptible. Mrs Angry did suggest that once in control of Barnet, however, he might like to try to outsource us, and that now might be the appropriate stage in which to conduct a full consultation with our readers, in line with statutory guidance. 

Before the hearing resumed, the nice man from Crapita made the mistake of trying to convince Mrs Angry that when Crapita is running Broken Barnet everything will be - well - really, really nice, and we will be besides ourselves with joy at our services being run by the private sector. Mrs Angry explained to the nice man from Crapita, at some length, that in her view, it was neither morally justifiable, or practically possible, to extract profit from the provision of public services. And, she said, you now have a virtual monopoly of some public sector services, don't you? That can't be good. We had a good year, last year, he said. 

Maria Nash outside the High Court today

How or why should you make profit from care, or emergency services, asked Mrs Angry? How can you do so, without affecting the standard of service? And she repeated something Mr Mustard had told him, cheerfully, earlier in the day: if Capita come to Barnet, you can expect ten years of constant scrutiny and criticism from us. 

As the hearing continued, it emerged that over the lunch break, Barnet's legal team had accepted that there had been a 'mismatch' over statements in the EIA and the contract - that can be corrected, assured Miss Carss-Frisk.

Mr Griffin returned to the heart of the matter, the reason for the three day hearing: the scale of the programme meant that this is not, he told the court, a wasps' nest case. No, thought Mrs Angry: more of a hornet's nest, in truth.

He referred to some of the allegations made by Barnet's counsel as part of their claim that they had carried out proper consultation. Some of the bodies and forums listed had in fact ceased to exist by the time in which they were said to have taken place.  

Miss Carss-Frisk, taking over, suggested that Mr Giffin's belief that there were ways round Burkett, ie in relation to time limits for Judicial Review, would be, they submitted, to ignore the decision of the House of Lords. 

Mr Giffin said that it was his assertion however that the case was not out of time. Judge Underhill resumed his pose of consideration, with hands on head, and pointed out that Lord Steyn himself says that the court always has available the discretion to rule in favour of such a plea.

Winding up now, his Lordship, who had conducted the hearing with tact and courtesy throughout, thanked counsel and their teams for their assistance, and said he would reserve judgement until after Easter. Or, as he agreed, after some prompting by the council's team, as soon as possible ...

And that was that. 

For Maria Nash, solicitor Gerald Shamash observed that he thought the hearing had gone very well, and that he was optimistic as to the outcome -  and that the case was so important. And he quoted Maria: nothing about us, without us.

This sentiment, after all, was at the very heart of this case. 

The One Barnet programme has been imposed on this community in defiance of the need to consult the residents and ask for their approval.  

Without meaningful consultation, the relationship between any elected administration and the people it is meant to represent cannot be anything other than dysfunctional.
The democratic process cannot function in the absence of mutual respect, and a commitment to free debate, and a real engagement with the wider community. Here in Barnet we do not enjoy these rights and freedoms: but we have reached a point where we are no longer prepared to be excluded from that process.

These are our public services, and we have the right to say how they are run. We will no longer be silenced, and ignored, and denied a part in the making of decisions that will affect our lives for years to come.

This week, therefore, we went to court to reclaim that right, and to see justice done.

Now let justice be done.

Nothing about us, without us.

In the last couple of years here in Broken Barnet, residents have come together to fight the slow death of democracy in their borough, in a unique way - a grassroots movement: an insurgency - the 'Barnet Spring'. 

Tomorrow will see the Barnet Spring March - which will end at the recently occupied library in Friern Barnet - and listen to speakers like Tony Benn, and Owen Jones. It has been a long hard week, fighting in the High Court for our right to refuse to join the Capita empire: a bit of a walk, to the People's Library is just what we need, to revitalise our strength of purpose - join us.


Unknown said...

Brilliant blog, Mrs A. It was just like being there. Oh, I was! Your blogs on the JR are full of insight and a wonderfully detailed, accurate record. Thank you.

Mrs Angry said...

thank you la b, very kind. See you tomorrow.