30 April 2013

JR - the anticipated result - the council have no mandate for One Barnet

Mr Mustard sat through the entire JR proceedings and had predicted the result. Mr Mustard was very impressed with the Judge, who certainly isn't anything like the Judge Cocklecarrot of Private Eye fame. The result is a different matter but justice is a fickle beast.

The council have issued some of their standard flummery but an organisation with 3,000+ employees and annual revenues of £900m really shouldn't be going around not consulting with the disabled, whom they are meant to help, and mouthing off at what the process has cost. It is the price of democracy Richard (Cornelius) and Mr Mustard is sure it was not money well spent by the council. The cost of consultation would have been far lower and you didn't do it because you were doubtless afraid that the answer would be the opposite of what you were planning?

What were the chances of winning? The answer is in the Guardian here and shows us that it is rare indeed for a JR to succeed. In 2011 out of 2,213 (non criminal and non asylum) applications for Judicial Review only 527 were allowed to proceed. Of those just 87 were found in favour of the applicant and so that is a mere 4% of the applications make it across the winning line. Mr Mustard does believe he has heard Cllr Thomas saying how the council had so far won two JR as if this was a fantastic feat by the council and was a ringing endorsement of everything they have done. Mr Mustard wonders if anyone told him that succesfully defending a JR is the norm? Winning a JR is nothing for a council to be proud of, the opposite in fact as no-one puts themselves through the stress for nothing and the standard of decision-making is pretty poor if a hearing is granted.

Here is the judgment itself.

Mr Mustard has picked out a few snippets for you in case you don't want to read the entire judgment (and they are always hard work).

"Opponents....believe that private-sector organisations cannot evince the public service ethos which is so important in the delivery of the Council's service" (well said Judge Underhill).

"I will also follow the preferred usage of local authorities, though arguably it is not very apt, of describing the other party to an outsourcing arrangement as a 'partner'." (Bang on the money again)

"I am bound to say that I did not find this statement very helpfully structured or written." (This was in relation to a statement by Craig Cooper although he won't have written it all. His i.e. the council's, legal advisers must take most of the blame for this criticism)

The judge quoted from a 2008 Future Shape report. "Fundamentally, the Council should conduct those activities that only the Council can." (That wouldn't leave much).

"this is on any view outsourcing on a very large scale" (masterly understatement from the Judge who is very sharp).

"... the decision to outsource the functions.....have been controversial since they were first proposed."

"The reference to 'contracts with service providers' could be a reference to outsourcing, though it hardly leaps from the page"

"there is no real dispute that it did not constitute consultation about outsourcing as such."

"it is clear in the present case the Council did not make any attempt to consult on the specific question of whether the functions and services covered by the NSCSO and DRS contracts should be outsourced."

"Because here the Council never set out to consult about its outsourcing programme at all, the present case is not a good occasion to offer guidance on the form that such a consultation might have taken. The essential is simply that the representatives should have been given the opportunity to express views or concerns about outsourcing the functions or services in question..."

"It follows that if the application for judicial review had been made in time I would have held that the Council had not complied with its obligations under section 3(2) of the 199 Act in respect of the decisions taken in 2010/11 to outsource the performance of its functions and services, covered by the NSCSO and DRS contracts."

and now contrast what the judge had to say with what Amardeep Gill of Trowers & Hamlins had to say at the Business Management Overview & Scrutiny Committee of 13 December 2012. Mr Mustard has learnt how to fast forward to 07:45 as that is where it gets interesting.

Supposedly all statutory requirements have been adhered to. If Mr Mustard was buying legal advice for a local authority he would start looking around for a choice of legal advisors.

Round 2 is yet to come if leave to appeal is granted. We'll see.

Yours frugally

Mr Mustard

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