Will legal challenge to Barnet’s outsourcing decision succeeed?

Computer Weekly has been perhaps the best mainstream source of comment around government outsourcing in recent times . One of the topics they’ve covered – as we have here -  is Barnet Council’s major outsourcing programme, known as One Barnet. That has got as far as one of the two proposed major contracts being awarded to Capita for back office services such as Finance and HR.

However, Maria Nash, a Barnet resident, is challenging that decision via a judicial review, on the basis that Barnet failed to consult widely enough on its decisions, failed to meet its statutory public sector equality obligations and because the decisions are based on 'grossly inadequate assessments of the relative merits and risks involved and hence are unreasonable and amount to a breach of its fiduciary duty’.

So Computer Weekly recently featured the views of Mark Lewis in terms of this challenge. He heads up the outsourcing practice at law firm Berwin Leighton Paisner, and it’s a fascinating piece. Lewis points out the power of precedent, and how this case could set interesting precedents in terms of the whole future of public sector outsourcing. And he sees this as driving great uncertainty in the industry. If Nash wins:

“..she and her supporters could well bring to a halt the wave of outsourcings currently going through procurement processes up and down the UK, and all those being planned. Even if those deals aren't halted, they will be delayed, pending the outcome of the Nash case. Whoever wins the first round, you can be sure it will go the next.  This one could easily go all the way to the Supreme Court”.

Lewis points out that even getting agreement to a judicial review suggests there is some merit in the case, although my personal view is that simply outsourcing services doesn’t seem to me necessarily to increase the chance of citizens getting poorer services.  Leis explains here argument like this:

“As far as we can tell, Maria Nash claims that, as a local resident, she is dependent on a range of local social services necessary to enable her to live her life decently, and that the decision to outsource on this scale and over the 10-year term would on the balance of probabilities result in those social services being withdrawn or largely curtailed, either immediately or over the foreseeable term of the outsourcing. So, she says, if that is right, she will  be unable to lead a decent life and face being treated unequally, in breach of the council's duties”. 

I do wonder whether the 10-year contract might be an issue though. It’s been pointed out before that contracts of that length run far longer than the democratic mandate we give our members of Parliament or Councillors. We could throw them out – but we’re still stuck with the supplier when we’re looking at contracts of that length. Now such lengthy contract periods may be inevitable when there is major capital cost involved, but in services-based cases like this, the justification is pretty thin in my view.

Anyway, the Lewis article is well worth reading in full. Here’s how he finishes.

“If a precedent is set, it will not be long before the decisions of ministers could be challenged on similar grounds, or at least exposed politically as causing local authorities to outsource, because that's all they have left after swingeing central government cuts. Let’s see”.

First Voice

  1. Dave Orr:

    Key democratic deficit arguments here:

    http://spendmatters.co.uk/making-outsourced-public-services-accountable/

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