Wednesday, 17 July 2013

Obiter dicta, or: things said in passing - the One Barnet appeal, Day Two.

Maria Nash          pic Guardian

 Mrs Angry arrived a few minutes late in court yesterday, and was obliged to slide into a seat next to her new friend, the Tooting Twister, and so spent the morning trying to think of rude things to write in her notebook that might be seen by him: a few comments in red capitals such as BARNET QC WINGING IT and AWW! POOR CRAPITA did the job nicely, in between a sequence of discreet sniggering and impertinent expressions, at appropriate moments. Pointless, but it helped to sustain her equanimity in the more provocative moments of the council's QC's submission, - and, yes:  there were some very provocative moments ...

Dinah Rose QC presented an argument that differed in content and presentation to that of her predecessor, Monica Carrs-Fisk. Whereas Ms Carrs-Fisk's style is calm, and quiet, and reserved, Ms Rose adopted a more assertive manner, and chose new arguments to counter the points made by Nigel Giffin, QC for claimant Maria Nash.

Her first submission was on the matter of consultation: she suggested that there was no requirement to consult residents over One Barnet at the stage the claimant's counsel suggests, that is to say around December 2012, because the outsourcing of council services was a matter of policy already decided, and which was 'in no sense at a formative stage' by then. Ah: good to see the magic power of 'policy' being invoked once more, on behalf of our council's omnipotent rule, thought Mrs Angry.

Ms Rose did not agree with her learned friend's submission that in December 2012, 'there remained a genuine decision to be taken'. Mrs Angry had a genuine sense of bewilderment here: if there was no genuine decision to be taken by the Cabinet on whether or not to approve the Capita contract, does that not prove the point made by Maria's counsel that in that case, the process and the final meeting was a sham?

On to the issue of equality assessments: it was important, we were told, not to confuse EIA, Equalities Impact Assessment, with PSED, public sector equality duty. Mrs Angry disobeyed instructions, and became confused. This was not helped by the explanation that the undertaking of an EIA was not necessary in order to comply with PSED.

And now much discussion of Burkett: the caselaw which addresses the issue of timing restrictions which may or not apply in the case of Judicial Review.

Barnet's QC was of the opinion that the rulings in the case of Burkett are not relevant in Maria's review application. Burkett, she maintained related to a provisional decision, which had no legal effect, followed by a grant of planning permission which affected the rights of the concerned party, including a right under European law.

In this case, she said, we had a policy decision - an actual decision, not a provisional one, and the only right which was at issue here was the right to consultation. Aha: the forensic eye of Lord Justice Davis fixed upon Ms Rose: he interrupted her, and asked if she considered that to be a legal right ...

She formulated a response of sorts on the lines of - only rights as suggested by Section 3 of the statutory guidance, which, as all parties agree, is less than adequate: and she thought that right was held by representative groups, rather than individuals.

Lady Justice Gloster asked why it mattered if there was a right to consultation or not, if a party is interested?

And back to Burkett, and arguments over whether or not a breach of law was 'anticipatory', and if this applied in the Nash review. Did a case which dealt with a planning issue really bear relevance here?

We moved on to another consideration. In the course of the outsourcing process there had been, we were reminded, 'a substantial expenditure of public money'. Mrs Angry nodded. Indeed: £7 million pounds of residents' money had been paid to one private consultancy company, ie Agilisys/iMPOWER for their support in (trying to)implement the One Barnet programme. This, by the way, did not include organising any consultation exercise, for some reason).

Ms Rose also worried about the costs incurred by companies bidding for the lucrative contracts, a risk which had not been calculated by them. Mrs Angry thought about this, and felt deeply moved by their plight, and turned round to cast a sympathetic look at the man from Capita, sitting behind her. He grinned back.

Lord Davis commented that such risk can arise under EIA matters: it was 'a risk that is always inherent'. 

Ms Rose now took the court on a rather bumpy ride through a series of caselaw arguments, and what is referred to as 'obiter dicta': remarks or observations said in passing, or 'by the way' by a judge for the purpose of illustration or analogy, but not binding as part of a court's decision. 

The point of raising these cases was of course to try to discredit the findings referred to by Mr Giffin, in support of his arguments for the complainant: to undermine the significance of Burkett, and any other useful legal authority that might support Maria's case. 

At one point Ms Rose cleverly referred to a case which, as Lord Davis observed drily, enabled her to quote Lord Dyson to the Master of the Rolls: that is to say, Dyson to Dyson. Skilled advocacy, remarked the Master. 

This, by the way, is an example of legal humour: as arid and fusty as the airless corridors of the Royal Courts of Justice - not many belly laughs, but amusing, in its own obscure, neo gothic way.

Another of Lord Justice Davis's interventions interrupted the flow of Ms Rose's prolonged consideration of caselaw: why, he wanted to know, cutting to the nub of the matter, did Barnet say it intended to consult residents, and then fail to do so?

Again, the council's counsel appeared wrong footed, and was pushed into a hasty, and possibly ill advised assertion: she claimed that the authority had consulted 'extensively' on this project.

This interesting statement, being a view not shared by residents sitting in court, was met with absolute astonishment, and the reaction must have been clearly visible to their lordships. 

She went further: residents had commented and indeed complained about One Barnet. More jawdropping by those in the public gallery. 

Ah, but we had been consulted, we were reminded, on policy, rather than the detail of the programme. Detail, thought Mrs Angry, meaning small matters such as do you want your council to privatise one billion pounds worth of council services without considering any other options, or, alternatively: do you want your council to privatise one billion pounds worth of council services without considering any other options?

We heard that extensive consultation over One Barnet had included all sorts of things, including meetings and 'specific mailing' - oh ... all related to 'the budget cycle'.

Mr Cooper, the erstwhile Director of Commercial services, whose statement had been described by Mr Justice Underhill as, what was it now, hold on ... 'an awful lot of narrative, with no analysis at all ...' was quoted now by Ms Rose as saying it was simply not true that there had not been adequate consultation. She pointed to 'extensive press coverage' and 'local awareness', and then - with enormous cheek, to the activities of Barnet Alliance - the implication being that the residents' campaign against One Barnet was proof that a process of consultation had taken place: members of Barnet Alliance present in court were beside themselves with amusement, at this point, as you can imagine - and no little indignation.

Lord Davis pursued his point, and asked about the promise of 'extensive consultation': was there a change of heart? Oh, people had been asked for their priorities, given the very harsh circumstances - which services did they want to see cut? 

His lordship asked if there had been a specific proposal to have outsourcing. Ah. 

Was it 'buried in there' somewhere? 

No, My Lord. 

Ms Rose was roused: the notion that no one knew what was going on, she blurted out, in exasperation, leaving her own indignation hanging in the air.

Mrs Angry wondered how Ms Rose would explain the curious fact that not only had Barnet failed to consult on the specific proposal of outsourcing but had actively sought to prevent residents from discussing any matter of 'policy', such as One Barnet, in their own Forums.

The issue of 'remedy' and 'relief' now arose: what was being asked of the court by the claimant, and what effect would this have? Maria's counsel clearly was asking for the decision to award the contract to Capita to be quashed. What would happen?

Lord Davis suggested that in that case the court would plainly be saying the authority should be going 'back to the drawing board'.

Ms Rose said the authority was already committed to the drawing board. They are not exploring other options. 

It is my submission, she stated, that it is too late to have relief.

We were now treated to the contents of a letter by Mr Andrew Travers, the acting Chief Executive of Barnet Council. 

We were informed that he was greatly concerned about the morale of staff. Not as you might imagine from the perspective of those employees about to lose their jobs as a result of privatisation, but because of the delay in the loss of those jobs, and the uncertainty, thoughtlessly caused by those bringing this legal challenge. If you are being led to the guillotine, you want to get your head on the chopping block as soon as possible, of course, rather than pray for rescue.

Staff were leaving, due to low morale, we heard. We did not hear that staff might be leaving so as to be sure of employment, and security for their families.

The council had not renewed its IT infrastructure, and was 'struggling' with outdated sofware. There had recently been a 24 hour outage. Staff were in a state of limbo. The council was in a state of limbo. There were lots of agency staff, which meant a loss of knowledgeable officers ... (Mrs Angry did not quite understand why this was considered to be a bad thing by a council which will be outsourcing most of its services to an external company, but still ...).

If the contract was quashed, we heard, and a consultation exercise was required, it was difficult to see how this could address the original decisions made, at this point. Capita would be unable to offer the same deal. Oh dear: and there was a 'very significant risk' that the contractors will withdraw altogether ...

As for other possible private sector partners: the original bidders were not certain to want to have another go. They had, we were reminded, already spent substantial sums of money without success.

If the contract was quashed, there was a serious risk of collapse of the whole project. 

This, she said, is what the protestors want. There were very serious public interest implications.

Yes, thought Mrs Angry: indeed there are, which is why we are here, in the appeal court.

And now came the Awful Consequences of allowing Maria's appeal, and striking out the contracts with Capita: a funding gap, job losses, the impact on residents, cuts in frontline services - the 'doom and gloom' as Lord Justice Davis had described it, that we expected to hear, with no consideration of the alternatives, and the possibilities of in house options, and a pragmatic approach to solving the demands of budget restrictions, rather than a wholescale act of submission to the approaches of the private sector.

Time for Nigel Giffen to speak to the court once more. Addressing Ms Rose's attempt to distance the case from Burkett, he said that in fact, rather than restrict it to the narrow context of planning, the findings should apply 'across the board'. What if Mrs Burkett's case had been about consultation, rather than planning? What would Lord Steyn have said about timing?

What was significant was the impact on the claimant, rather than the implications for public expense. 

The authority had not asked about outsourcing at all, yet this was a major change which engaged the Section 3 guidance duty.

Lord Davis asked when he considered the obligation to consult arose. Giffen replied that it was just before the decision made at the December Cabinet meeting. As he had just pointed out, until that stage all they had was a preferred bidder.

Lady Gloster asked if he had said they could have consulted earlier, but did not have to? Yes, he said: but when did they discharge that duty?

They say it was discharged by consultation over the budget, and because it was 'publicly known'. That was, he suggested, a really hopeless submission

Consultation requires that you tell people what you propose, seek their views, and give them information. This they simply didn't do. 

As for the question of relief: 'adverse consequences' cannot be grounds for refusal. So be it: That's what Judical Review is all about. But the court should not lose sight of the fact that it will be the better for Barnet if they do have to go back to the drawing board.

And that was that. The Master of the Rolls concluded the hearing, and said he was mindful of the need for speed in the handing down of the judgement, and this is hoped to be forthcoming by mid September. 

Once outside court, standing in the glare of the sun, Mrs Angry bumped into the man from Capita. He shook hands - and Mrs Angry hoped no one was taking a photo, as her reputation would be fatally compromised ... Never one to miss the opportunity to wind him up, she asked him how he thought the hearing had gone. You had a better day, today, he conceded, wrily. 

The irony is, he told her, that built into the contract with Barnet, Capita have established a whole range of methods of consultation with local residents. We may be sold into bondage with our new masters, in Capitaville, for the next ten years, but we will be asked how tightly we want the collars round our necks to be fixed, which will come as some consolation, won't it?

Mrs Angry asked her friend from Capita why on earth they did not ensure the authority had taken the proper steps to comply with the statutory obligations on consultation. He suggested this was Barnet's responsiblity. Why a company risking what we were told was a substantial investment in this bidding process would not seek to verify this responsibility was met, is something of a mystery, though is it not?

One might also wonder where all the millions of public money spent on support from legal advisers and consultants had gone, if not to monitor this most basic requirement: and if the judgement is in favour of Maria Nash, and her appeal results in quashing the contracts, residents may well expect these questions to be answered in full.

It should be remembered that this application for judicial review failed because it was ruled out of time, and the appeal has largely centred around not just the issue of consultation, but the matter of when exactly was the appropriate decision from which the time limit dated. Even Judge Underhill was uncertain: he thought it was in 2011, but was it March, or May? If a High Court judge cannot be sure, how on earth can Maria, or any ordinary member of the public be expected to know when was the proper time to go for an application to the court?

In the interests of justice, it must be surely the case that the judgement of the timing issue should reflect this inequality of access to the protection of the law. It is not reasonable to have a rigid limitation on a matter of such significance when most citizens are excluded from the process of gaining justice without a high level of knowledge of the law, or support from legal advice - and indeed now, with the cutbacks in legal aid, it will become almost impossible for any disadvantaged member of society to receive an equal opportunity of legal support. We will have justice for a privileged elite, and injustice for the rest of us.

Let us not forget to acknowledge the wider significance of this appeal: the findings of this judgement will have enormous implications for every local authority, and every public body seeking to make major changes in their delivery of services. The principle of consultation, and what is meant by it in practice, will be redefined. 

At no time could this be of greater importance - if Pickles' commitment to the concept of localism is to work, there must be a process of real engagement between citizens and their elected representatives, and one defined in law. 

The gaping hole in statute left by the current legislation and the available guidance has created a culture of contempt, here in Barnet, for the process of consultation, and enabled our Tory councillors to impose a hugely controversial policy decision on us with no regard for our opinions, and in deliberate and overt defiance of their own government's stated policy of empowering communities and holding our elected representatives to account. 

We hope that this legal challenge will strengthen our fight to wrest back control of our local democracy, and give others the chance to do the same. 

We do not intend to give up, roll over and let go of this fight without a damn good effort: this is about our services, our lives, and our future.

Or to put it another way, and here is Mrs Angry's obiter dictum, m'lud: nihil de nobis, sine nobis.

Yes - let's say it again: 

Nothing about us, without us.


Ron said...

right.. "There had recently been a 24 hour outage". did they mention that the IT infrastructure is running by crapita?

Mrs Angry said...

Already? They gave no details, of course.