Traver's talks

There is a museum dedicated to Magritte in Brussels which friends of Mr Mustard have just been to & he would like to visit. He hasn't seen Andrew Travers in a bowler hat but it is what senior civil servants used to wear years ago. Now to what Andrew has just sent to the staff (do they all know who he is?) about the JR along with, in red, Mr Mustard's comments.

From: First Team
Sent: 10 June 2013 10:55
To: AllStaff
Subject: Judicial Review update

The First Team update on Tuesday set out the provisional dates set for the Appeal Court hearings of 7 and 8 October. True.

Since then we have continued to explore with the Court whether those dates could be brought forward, but so far to no avail. What I haven't told you is that Maria Nash's lawyers have been available since they submitted the appeal and it is the council's QC Monica Carrs-Frisk who is busy on another trial so the delay is entirely down to the council's decision to stick with her. 

We are looking at the possibility of instructing a new QC in the hope that could lead to an earlier date for a hearing, although this is still dependent on the Court listing. A new QC won't lead to any consultations being found as they don't exist.

We remain confident that permission to appeal will not be allowed and that the benefits to our residents will be delivered. Is it possible to read the mind of appeal Court judges with their superior brain power and extensive legal knowledge? This is guesswork or possibly based upon the advice of Trowers & Hamlins who would say that wouldn't they.

When this is confirmed we will sign the NSCSO contract. A.s.a.p.

The transfer of staff to Capita would take place shortly after. We can't get rid of staff quickly enough. Contrast with "continuing commitment" below.

The One Barnet programme is designed to protect and enhance our ability to serve our residents through an unprecedented period of austerity. The words "to protect" are not needed as they are followed by "to enhance" which aren't true anyway as One Barnet includes service cuts. We are not "our residents". You on the other hand represent "our council" except it has gone rogue on us. Mr Mustard thinks that some reading about the Great Depression is in order to question the use of "unprecedented".

The NSCSO contract will improve the quality of our services and will save an average of £12.5m per annum. Ask Mr Mustard if this is true in 2023.
 
This is £12.5m which would otherwise come largely from front-line service reductions. Well that is one choice. Getting every consultant & interim out of the North London Business Park, reducing the number of councillors from 63 to 21, not paying anyone more than £100,000 p.a., flattening the management structure and starting again with zero based budgets and becoming a boringly efficient organisation would be another way.

The DRS contract will improve the quality of our services, will save an average of £3.9m per annum which would otherwise largely come from front-line service reductions, and will create a growing Barnet-based business. Will other boroughs really agree to let Barnet make a profit out of providing services for them which would otherwise represent a saving in their own budget? For every winner there will be a loser. If having a Barnet based business is such a good thing why did you let NSL transfer the parking back office to Croydon?

Cabinet has carefully considered and approved these arrangements at all stages. So carefully that they haven't all read some or all of the NSCSO contract. Mr Mustard emailed all of the Cabinet as to how many pages they had each read. We know Richard Cornelius didn't read it as he said so and so his cabinet team are unlikely to have bothered; none responded to Mr Mustard's email (hello Cabinet member, it isn't too late to tell Mr Mustard you have read it all - what is that, oh an empty inbox).

The legal action pursued by the claimant is designed to delay or prevent these arrangements coming into place. It is designed to seek justice.
 
The initial application for Judicial Review was not allowed by the High Court and permission to appeal was refused. The claimant has, nevertheless, sought permission direct from the Appeal Court. This is called following due process, unlike the missing consultations.
 
The council deeply regrets this. Officers are not the council, they are its servants even if that doesn't appear to be the case. Is this remark on behalf of councillors? Richard Cornelius said "everyone has a right to speak to the Courts" (except when it buggers our cunning plans up of course).

I am acutely aware of the challenges of continuing effective service delivery during this period of uncertainty which is not of our making. Who started this pig in a poke that is One Barnet then, as it wasn't the residents?

I remain very grateful for the continuing commitment of all staff affected by these projects. Why would anyone want to TUPE transfer out such a committed workforce? If this is the case why has £167,000 been committed to Capita to cover for holes in the staffing? see Mr Reasonable's blog here.

We will be putting additional measures in place to support the continued delivery of services during this period, and more information will be available shortly for the affected areas. Can't wait. Crisis, what crisis?

Andrew no longer a Town Hall Tax Dodger Travers

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