Judicial Review Judgment: BAPS’ View

 There have been a lot of questions about this Judgment and the amount of spin Barnet Council has put on the decision. This judgment has wide-ranging implications for the future of local government and the NHS in that more and more councils and Clinical Commissioning Groups will be under increased pressure to try to outsource their problems away. The stark reality is that if this decision is not challenged, it will leave the door open for mass outsourcing of public services on an unprecedented scale across the country.

What message does it send to public bodies across the UK?

It is all right to breach your statutory obligations because there are no serious implications for doing so.

This is why it is worth considering what Lord Justice Underhill had to say about the claim of failing to consult. Below are a number of key extracts from the judgment.

Judgment (extract)

60. Not withstanding that conclusion, I believe that I should give my conclusions on the substantive questions. I do so partly in case the matter goes further but also because, so far as the issues under section 3 of the 1999 Act are concerned, I am told that there is no case-law, and in view of the thorough and expert submissions made to me it may be of some wider value if I expressed my views….” (2013.04.29 Lord Justice Underhill)

Rejecting the Barnet Council’s response to ‘Failing to consult’

73. I do not accept Ms Carss-Frisk’s submissions. In the first place I do not think that the use of the formulation “for the purpose of deciding how to fulfil” as opposed to, say, “about how to fulfil” will bear the weight that Ms Carss-Frisk puts on it. Of course it is important to pay close attention to the statutory language, but I do not see how you can consult “for the purpose of” making a decision without inviting views on the substance of the decision itself. And even if that is theoretically possible, I do not see how it is possible to consult for the purpose of deciding whether to undertake a major outsourcing programme without inviting views on the proposal to undertake that programme. Consultation only about “priorities”, or about other general matters that might “assist” the authority in deciding whether to outsource, is not the same thing and is not what is required.” (2013.04.29 Lord Justice Underhill)

Barnet Council seeking to avoid consulting

74. That seems to me not only the natural reading of the statutory language but what I would expect Parliament to have intended. It is hard to see why authorities should be entitled to fulfil their duty to consult in a way which avoided seeking views on the central issues raised by the substantive duty. Ms Carss-Frisk was of course obliged to put her case in the way that she did because it is clear that 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. (Indeed if what Mr Dix was told, as quoted at para. 52 (1) above, is to be taken at face value, the Council had taken the view that it would not consult on “the principles of the Future Shape programme”.)”(2013.04.29 Lord Justice Underhill)

No intention to consult residents

Because here the Council never set out to consult about its outsourcing programme at all,” (2013.04.29 Lord Justice Underhill)

Failed to comply with obligations under section 3 (2) of the 1999 Act

76. 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 1999 Act in respect of the decisions taken in 2010/11 to outsource the performance of its functions and services, covered by the proposed NSCSO and DRS contracts.” (2013.04.29 Lord Justice Underhill)

BAPS’ view on the response of the Council’s Leader

In light of this very clear condemnation of the Council it is hard to understand why Cllr Cornelius, the Leader of Barnet Council, thinks that the judgement is a victory for his Cabinet. It is clear that the judge thinks the Council deliberately did not inform residents of their plans to mass outsource, let alone did not consult with residents on these plans. It is also quite insulting for those of us, residents, who also work in the Council, that the Leader rejoices at the prospect of 400 jobs being lost.

Whilst the Council did its best to conceal its plans, as the judge noted, informing residents is precisely what Maria Nash intends to do through the court (having been left with no alternative as the council refused to listen), as she said to the Ham&High:

“I think the judge has actually done me a great favour in giving me the opportunity to go to appeal because we can go further and address the issue properly. The more time I have the better to tell people around the UK that if we privatise things democracy suffers and everything becomes about profit.”

The local Times‘ newspaper’s response

The local Times chose to quote only part of what Maria said, leaving out her intention to inform people, presenting the matter as if Maria is seeking to appeal the JR ruling just to indulge herself at the expense of the tax payer, when in fact she will be saving the tax payer’s money.

Furthermore, the Times headline to the article looks like it was meant to incite anger against Maria Nash as a disabled woman:

“One Barnet campaigner Maria Nash handed more taxpayer funding to continue High Court fight.”

BAPS’ response to the Times‘ article

At a time when disabled people are portrayed negatively to the public in order to justify the Government’s cruel war on disability rights and benefits, as a result of which hate crime against disabled people is on the rise, such incitement is not only wrong – it is dangerous.

BAPS is shocked and horrified by such irresponsible behaviour on the part of one of our local newspapers, and it strongly objects to the attempt to present Maria Nash as anything other than a responsible, concerned citizen who has put her head above the parapet for the sake of us all.

In conclusion: Maria Nash is setting out to save our borough’s local economy, its local democracy, its services and jobs and the Council’s financial resources from the current administration, which seems determined to damage all these. The Legal Aid Maria was granted (no doubt out of recognition of the truth in her arguments, as follows from Judge Underhill’s ruling quoted above), is peanuts in comparison to the huge sums that Barnet Council, led by Richard Cornelius, had already wasted, and in comparison to the billions it is risking to waste if the One Barnet Programme is allowed to go ahead.

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