Tomorrow the case Maria Nash versus Barnet Council will be heard at the Court of Appeal in Court 71 before The Master of the Rolls, Lord Justice Davis and Lady Justice Gloster it is a 10.30 start.
Two days have been set aside to hear the case.
The case was brought by Barnet resident and disability rights campaigner Maria Nash in response to the One Barnet mass outsourcing council.
If the Court of Appeal finds against Maria Nash what sort of message does it send to public bodies across the UK? That it is all right to breach your statutory obligations because there are no serious implications for doing so.
This is why the judgment delivered at the Court of Appeal on the Maria Nash case will have wide-ranging implications for the future of local government and the NHS. As more and more councils and Clinical Commissioning Groups are placed 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.
Outsourcing failures are becoming all the more common, most recently the G4S & Serco overcharging scandal which once again demonstrates the failure of public bodies to monitor the private sector.
Outsourcing is big business, recent reports indicate the current cost of outsourcings public services which were once delivered in house are now worth £88billion.
The Maria Nash case is all about whether the Council should have consulted residents which 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)
Whatever the outcome of the decision, I know the workforce (almost 600 jobs) at risk of losing their jobs as a result of the privatisation of council services are hoping the Judges decide in favour of Maria Nash.
Follow the court case on twitter on #BarnetJR
