2023 - We are already there in Barnet?

Amuse yourself by deciding which Barnet councillors you would send to Mars. Only room at first for 4 sadly but we can send 4 more every 2 years after that.

Why is Mr Mustard writing about Mars? It is an illustration of how much the world, and Barnet, might have changed before the NCSCO and DRS contracts with Crapita (and A N Other but probably Crapita) come to the end of their initial 10 year terms. No-one at the council, whether councillor or officer, or any of their highly paid external consultants can possibly predict what changes will have happened to local services by 2023 and so for that reason alone the Judicial Review challenges are justified. We are stopping you Richard (Cornelius) from making a big fool of yourself. Mr Mustard predicts that in 2023 people will be saying Richard who? although Mr Mustard suspects that if he asked the man or woman in the street "Who is the leader of Barnet Council?" that 99% of the populace wouldn't know the answer in 2013.

Richard has got himself a little confused. In the papers in early March before the JR took place he was reported as having said "Everyone has a right to speak to the courts" and now after the council won on a time point (which will be going to appeal as it didn't seem to follow case law) and got mullered on not having consulted he is all in a lather about the cost and delay and has said "that she (Maria Nash) should “carefully consider” an appeal that will incur more costs to the taxpayer". Did Richard consider carefully the views of residents when pressing ahead on the One Barnet transformation with evangelical zeal? Er, no.

What Mr Mustard worries about is the effect this will have on the decision making freedom of councillors to be elected in May 2014, May 2018 and May 2022. Richard is in a pretty safe ward (or so he probably thinks) and probably hopes to be elected again and also to have a majority on the council and still be in charge.

He plans now to sign up for 10 years (120 months) a contract for which Crapita are mobilising for a 1 July start and so there will be 10 months of this current administration to run. Is it right and proper that a councillor who may not be in power after a mere 8% of a contract he signs up for has run its course, which he knows is the antithesis of what his opponents believe in, can tie us all in this way to an external supplier.

We don't of course want a system where every 4 years we could jockey from having an in-house provision of everything to an outsourced supplier of everything as that way lies madness and waste but maybe limiting the contract terms that can be signed to 5 years, with a no-fault, no compensation, cancellation option on 6 months notice at any time would be a practical method?

It might be acceptable for Richard top press on if he had a mandate from the people for this policy i.e. it was what he was elected to do. Did the words "One Barnet" figure in his election literature. Mr Mustard asked Richard months ago for a copy and guess what, answer came there none (Richard has a special sub-section of his inbox for the really hard questions and most of Mr Mustard's emails end up in there). Mr Mustard surmises that this means the words "One Barnet" were not mentioned as they weren't in East Barnet where one of the (do you know Mr Mustard really doesn't know what to call the 2 cabinet members who supposedly have responsibility for One Barnet so he won't call them anything official at all except) backers of One Barnet, stood for council.

It might also be acceptable to sign up for 10 years if a massive majority of residents had been consulted and thought that One Barnet was a great idea. As we know all too well that is why there has been a judicial review and why Maria Nash is right to go to appeal. Yes she has the benefit of legal aid but who has £300,000 sloshing around down the back of the sofa to spend on legal fees?

Mr Mustard reckons he knows who does have that level of savings; a Totteridge dwelling jeweller called Richard Cornelius, who will probably be sunning himself at his French holiday home instead of sitting avidly through the Court of Appeal hearing.

Finally a little note especially for the Crapita employee who happily chatted to the Barnet Bloggers (and they were happy to chat to him) . Mr Mustard promised the nice man 10 years of hell. Have you got the idea yet Mr Crapita? everything you do will be scrutinised and more Judicial reviews will follow if you change anything to the detriment of the populace. Mr Mustard hopes that you put the cost of defending judicial reviews into your bid. The bloggers are watching you, very closely.

Usual seats in the Royal Courts of Justice? Mr Mustard will stand you a beer at lunchtime.

Yours frugally

Mr Mustard

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.

Nash v Barnet LBC

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