Friday 7 December 2012

Like Buses - No legal action for ages then two Judicial Reviews come along together

In the last 24 hours we have seen two  Judicial Reviews launched against the deeply undemocratic One Barnet Outsourcing project. Yesterday saw a Pre Action Protocol letter served on Barnet Council on behalf of local resident Maria Nash. Today a second Pre Action Protocol was served on Barnet Council on behalf of Susan Sullivan who many people will know from her role in the film, The Billion Pound Gamble. Press releases for both actions are set out below.

Barnet Outsourcing is in deep trouble because at every step Barnet have stifled debate and refused to engage with the residents. They have also ignored the concerns of some of the most vulnerable in our community.  And it will get worse. I will be interested to see if BT or one of the other failed bidders (Serco and HCL Axon) launches a challenge against the contract award once the standstill "Alcatel" period starts in one weeks time. That really would put final nail in the coffin for this Frankenstein of a contract.

Barnet Alliance for Public Services Press Release:  6 December 2012
Pre-Action Letter - Proposed Claim for Judicial Review was served on Barnet council.
A Barnet resident, Maria Nash, has instructed lawyers to seek Judicial Review of the One Barnet Programme.   A pre-action protocol letter was sent to the Council today, prior to the Cabinet meeting tonight which plans to approve the appointment of Capita plc as preferred bidder for the first of the One Barnet contracts, worth £320 million.
The letter details the grounds on which a Judicial Review will be sought:
1.         Breach of the Council's duty to consult Barnet residents, businesses and community organisations about its plans, the result of which is that it has spent millions of pounds – the Agilisys contract alone has cost over £4m and is likely to rise to £6m – on professional consultants helping it to run the procurement process, but has not once asked local people for their views.
2.         Breach of councillors' duty to the residents in their area, to make sure that their decisions represent the best available value for public money. In order to be sure that they are getting best value out of this or any other contract the Council must compare the costs, benefits and risks of outsourcing with the costs, benefits and risks of retaining services in house but reforming the way they are provided to optimise value. Despite having been urged to do this, and despite the fact that it has been done by other local authorities, like Edinburgh, Barnet has refused to do it.
3.         Breach of the public sector equality duty: the Council must take issues of equality into account when making important decisions which affect people’s lives, like making radical changes in the way Council services are run.  The “equalities impact assessment” done in the One Barnet case was a pure paper exercise, which took no account of the views of people who would be affected by the changes.
4.         Breach of public procurement law, which requires that this contract be awarded to the company submitting the “most economically advantageous tender from the point of view of the public body”, i.e. the provider that gives the “best value for money” , taking into account the council’s responsibilities. Lack of consultation with local people, lack of consideration of equalities and lack of an in-house services comparator means the council cannot state that Capita gives the best value for money.  Such a breach of the public procurement rules leads to cases like West Coast Main Line.
5.         Breach of councillors’ duty to make up their own minds: Individual councillors must by law make up their own minds how to vote after informing themselves on the issues.  They are not allowed blindly to follow the party line.  Councillors have been starved of information and have not had the opportunity to understand the highly complex proposals for the contract, so they cannot legally vote to do anything other than defer a decision so that they can inform themselves and come to a proper view.

Notes for editors
1.                  Capita has been chosen as the preferred bidder for the New Support and Customer Services Organisation (NSCSO) contract with Barnet Council, worth at least £320 million over 10 years and advertised in the Official Journal of the European Union as worth between £600 and £750 million. A second contract covering Development and Regulatory Services (DRS) worth £275 million over 10 years is also being bid for by Capita Symonds and EC Harris; parking services were recently outsourced to NSL for £15 million (5-year contract).
2.                  Barnet Alliance for Public Services (BAPS) is a coalition of residents, trade unionists and community campaigners in the London Borough of Barnet, formed to defend and improve public services.
3.                  Maria Nash is unfortunately unable to talk to the press due to illness. She has asked BAPS representative to speak on her behalf.

Contact: Barnet Alliance tel: 07534 407703 - Vicki Morris tel: 07446 292994 – ;

Press Release – 7 DECEMBER 2012
Public Interest Lawyers, acting on behalf of Susan Sullivan, a concerned Barnet resident, has today notified Barnet Council (at 9.39am) of her intention to seek judicial review of the “One Barnet programme”. The pre-action protocol letter sets out her claim against the Council. She alleges that the Council is acting unlawfully, both as to the process it has adopted and the substance of its proposals. The One Barnet programme is unprecedented in its ambition and scale nationally, yet it has never been the subject of a consultation of Barnet residents nor an effective equalities impact assessment.
The letter seeks the immediate suspension of any further contracting decisions by the Council and the carrying out of a full and effective consultation and equalities assessment. She contends that the results of any such assessment/consultation would cause the Council to re-evaluate the ill-advised programme.
The Claimant argues that the Council has breached the following legal duties:
a) The Public Sector Equality Duty – this requires the Council to have “due regard” to equalities considerations and the impact of its decisions on protected equalities groups throughout its decision making process. The Council has failed to have regard to this duty both in relation to the timing of its equality impact assessments –postponed until too late in the contracting process; and in relation to the form of the few assessments that have been carried out. They have failed to evaluate the most important question: what is the impact of a wholesale and irreversible contracting out of the Council’s functions? High-flown contractual promises of bidders lack essential rigour and detail and are no answer to this question. There has been inadequate consideration of mitigating actions.
b) The ‘Best Value Duty’ in s3 Local Government Act 1999 – this duty requires the Council to obtain ‘best value’. This includes community as well as financial value. Statutory Guidance requires consultation to take place. This has not happened. An evaluation of value requires the consideration of maintaining in-house services. This has not happened.
c) Public law duties of consultation and information. In failing to consult, and to consider viable in-house alternatives, the Council has unlawfully closed its mind to valuable democratic considerations.
Speaking today, John Sullivan, the father of Susan Sullivan stated as follows:
“The Council has robbed Susan and her family of their democratic voice in failing to consult on what is a wholesale privatisation of local government. If this happened nationally, there would be outrage. Why should it be any different for our beloved Barnet? The national contract failure rate is 25%. When these contracts collapse, who will be left to pick up the pieces? No-one but the poor, the disabled and short-changed Barnet service users, residents and taxpayers.”
Speaking today, Daniel Carey of Public Interest Lawyers stated as follows:
“The law requires the Council to consult residents and carefully evaluate the impact of its decisions on equalities groups. Yet, in the biggest decision the Council could possibly take – to effectively cease to be a Council as we know it – it has failed to do so. I hope the Council will now listen to the legal arguments and give proper and lawful regard to residents and their concerns.”
For further information, contact:
Public Interest Lawyers
Daniel Carey, Solicitor
Telephone: 0121 515 5069
Mobile: 07815 089526

No comments:

Post a Comment