Barnet council claimed a very hollow victory yesterday when the judgement was handed down concerning a Judicial Review application against their massive £1bn outsourcing programme. The victory for the council was that the challenge was out of time. The hollow bit was the finding that, basically, there was a complete failure to adequately consult on such a major change in the structure and delivery of public services.
The judgement and the legal arguments were, as ever, complex and for the details and a far better understanding of the situation read Mrs Angry's excellent blogpost here. The essence of the objections were that public service improvement will not, by definition, be best met by the drive for profit of private companies, in this case Capita plc.
Take the 'out of time' argument. When is it the appropriate time to make a legal challenge against a decision? When does a twinkle in the eye of a council's corporate management team become a 'decision'? Is it when the 'principle' of whatever the proposal is, is 'adopted' for further development or when that proposal is embodied in a report to full council or, in this case, contracts are (almost) signed? The judge cites examples but the situation for the campaigner or objector, when the time limit is three months, is far from clear. A situation not helped by the jargon-filled sea of mist created by councils particularly if it is clear that the proposal is likely to be controversial.
This mist is apparent in the failure to consult. At no point through this lengthy process did Barnet council make it abundantly clear it's intentions to 'outsource' its services, in fact it seemed to deliberately avoid the word, being aware, I am sure, of the controversy that surrounds it. Promised consultations never materialised and those that did were "plainly not designed to elicit views about it" (para 66).
All sound familiar? Why am I writing about Barnet Council? No, there's no massive outsourcing plan on the scale of Barnet here in Carmarthenshire, not yet anyhow, but take a major regeneration project for instance. The first anybody really knows about it is when a council issues carefully crafted press releases about the corporate 'vision' it wishes to implement. If the proposal is flawed in some way, be it detrimental to residents or financially imprudent, it is likely that the actual process started a long time ago, definitely more than three months and obligations will have been made, appraisals commissioned and consequently, a great deal of public time and money already spent. This should never be a reason to refuse a challenge though - should the challenge be well founded, legally or morally, then that money and time will have been wasted by the council itself.
At some point the council may be obliged to actually consult with the public and at the planning permission stage, consultation is of course statutory. How does that usually pan out in Carmarthenshire? The core group of campaigners who have withstood the test of time become accused of wasting council resources by their endless objections and of standing in the way of progress and the 'improvement' the proposal will bring to the lives of residents. So, armed with their vast resources of spin, valid objections and concerns are not only ignored but those who put them forward become that 'small group of troublemakers'. Divide and conquer again.
Take the idea of 'partner' organisations, one example that springs to mind here is the Towy Community Church. The vision of the council was that this was a form of 'outsourcing' its social care responsibilities, albeit to a far lesser degree. But that was what it is. Forget the bowling alley. By the council embarking on a financial and it would appear, moral commitment to an evangelical association it also embraced its values, quite how eternal damnation upon the rejection of Christ fits into any equalities legislation or any legislation for that matter is beyond me.
And what of conflicts of interest in the decision making process? The Barnet bloggers have constantly highlighted their concerns over possible conflicts of interest between the decision makers and the companies who stand to profit, though these were not part of the legal case. Carmarthenshire Council, on agreeing the various loans and grants to the Towy Community Church over the past couple of years only records two declarations of interest, both from councillors who felt it right that, as Christians, they should at least say so. This didn't appear to be on the horizon of anyone else's conscience at all. As mainstream Christians, they would not, in reality, be personally benefiting from the 'partnership', but anyone with similar beliefs in evangelical Christianity would be promoting something which would benefit their own personal crusade. If nothing else, it's a fine line.
I am not in a position to pick apart the Barnet judgement (which can be read in full here), but the importance of this decision to other councils must be made clear. Barnet's claim to victory is false, to win on the challenge being 'out of time' is no win at all. The message to local authorities is that to deliberately cloud their intentions over controversial proposals goes directly against their basic obligations to the general public and the promotion of democracy. It doesn't really need pointing out.
Barnet's claim to victory may also be premature as the possibilities of an appeal are being considered.
(Wednesday, update; Legal Aid has been granted to take the Appeal forward)
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