Wednesday, 6 August 2014

JR - Napo Responds

The following has been published on the Napo website, I presume in response to this mornings blog post here:-

Judicial Review (JR): Questions & Answers

As members have previously been advised, Napo through solicitors has been challenging aspects of the implementation of the Transforming Rehabilitation (TR) agenda.

The purpose of this Question and Answer summary is to give members some further background to the nature of the JR process and the union’s attempts to mount a legal challenge against TR.

Q. Why has Napo not published a full account of its activity around JR?

Members should be aware that although the Officer Group and National Executive Committee (NEC) have been fully briefed on the work that has been going on since last year, it was decided that it would not be strategically sensible to provide regular comprehensive briefings to members which would obviously be seen by the Ministry of Justice who are currently being asked to answer a range of key legal issues that we have put to them in the context of us challenging the TR agenda.

Q. Is there any constraint on what the government can do in organising probation services?

A. Parliament is sovereign. Hence parliament can pass legislation to enable the government to reorganise the provision of probation services as they see fit.

That said, there can be European law constraints on government and, once legislation is in place, government need to comply with that legislation; and in exercising any powers under that legislation need to comply with public law requirements.

Q. How did the Secretary of State proceed with his rehabilitation agenda without new legislation?

A. Mr Grayling’s Transforming Rehabilitation agenda has been implemented under the Offender Management Act 2007. Whereas doubts had previously been expressed as to whether or not this Act provided appropriate authority for what he was proposing, the advice of two leading counsel instructed by Napo was that the Act gave sufficient authority. This meant that a challenge based on this aspect within the normal 3 months of the original decision would certainly have failed.

Q. What are the public law constraints?

A. The courts can through the process known as judicial review, ensure that a public body acts with appropriate legal authority, follows any particular procedural requirements that apply, and does not make any decision which is irrational, or in making a decision takes into account relevant considerations. In addition, the courts can, through judicial review, intervene if the public body fails to comply with the public sector equality duty.

Q. So is judicial review an appeal against TR?

A. No. Judicial review is not an appeal but rather it is the manner in which the courts are able to ensure that the decision reached is lawful. It is not for the court to substitute its own view for that of the public body, in this case the Ministry of Justice. The courts will not intervene where a decision is made as a matter of policy, provided that the legal framework permits the decision in question.

Q. So what is the test of rationality?

A. Napo has sought to reflect the views of its members in saying that we believe that the TR agenda is of itself misconceived. In the main, however, the agenda is a matter of policy for the government and therefore we are advised that the courts would only intervene on the basis that the agenda was irrational. In order to establish irrationality it will be necessary to show that no reasonable Secretary of State properly directed, could reasonably reach the decision challenged. The courts have confirmed that this is a very high threshold set by previous case law.

Q. So how does judicial review work?

A. Judicial review is a two-stage process. The courts require that, first, permission is granted for a judicial review to proceed. This means that a certain threshold is required to be met (with a view to excluding claims which are either misconceived or misdirected; as well as those which the courts judge not to have reasonable prospects).

If permission is granted then a full judicial review is conducted. At times the application for permission and the full hearing can be combined, particularly when a claim is urgent.

Q. How quickly should a judicial review be taken?

A. Any judicial review should be taken as soon as practicable after the decision is challenged and in any event within three months (see earlier Q&A). However, once time begins to run, it will depend on the nature of the decision that is being challenged. Since deciding that a challenge under the 2007 OMA would not have been in our members’ interests, Napo has sought to fully explore a number of issues (see below).

Courts expect that anybody wishing to take action, should first send what is known as a pre-action protocol letter (PAP) to set out the basis of their concerns and to allow the public body to respond and explain their position, before any proceedings are taken.

Q. So what are the bases of challenge raised by Napo?

A. Napo raised a number of concerns about the decision by the Secretary of State to proceed with the implementation of the TR agenda on 1 June 2014.

Those concerns were, broadly, about the failure to pilot the new structure; the rationality of proceeding in the light of continuing material safety concerns about the new structure; that proceeding with the transfer in light of this would not have been consistent with the Secretary of State meeting the statutory aims of the Probation service, and that there would a breach of the public sector equality duty as due regard was not being taken in respect of the proposed treatment of women offenders, mental health offenders and of part timers in the assignment process of staff.

Following consideration of the response from the Secretary of State, on leading counsel’s advice, no further steps were taken by way of judicial review to seek to challenge the decision to proceed on 1 June 2014.

However, particularly in light of a commitment from the Ministry of Justice that the Secretary of State “will only move to the next stage of implementation when it is safe to do so”, Napo have taken up through a third pre-action protocol letter, amongst other things, the intended decision to select successful bidders and enter contracts with them before completing a full further testing analysis of the operation of the TR arrangements put into place from 1 June 2014 over a reasonable period of time (‘Testgate’ 4). Napo is also appealing against the decision by the Secretary of State to not reveal the results of the previous testing processes (‘Testgates’ 1,2 and 3).

Q. What remedies are available if a judicial review is successful?

A. Remedies can vary and are at the discretion of the courts but upon a favourable judicial review, a process can be halted until it can lawfully proceed later, and a decision can be made requiring the original decision to be re-made lawfully (which may not preclude the same decision being made again).

Q. What happens next?

Napo awaits a detailed response from the Secretary of State’s legal team to our last PAP letter. When this is received it will be considered by Counsel and a further report will be provided to the Napo Officer Group and NEC. They will consider the situation pertaining and will also take account of the merits assessment from Counsel.

Napo is also in contact with Unison and GMB to alert them to the possibility of a JR application, in which case they would be invited to consider whether they would be prepared to join with any action which inevitably carries the risk of significant financial liability if it were not to succeed.

More news will be made available to members as soon as we are able to update you

Ian Lawrence General Secretary and the Napo Officer Group
6th August 2014

7 comments:

  1. All this info has been put out previously and is there and has been communicated to NAPO members previously. What i would like to know is who is leaking info to you Jim? because a lot of what you and Joanna keep using as justification is quoting 'sources'. As per Joanna's quote below to paraphrase (cause i can't scroll down) money is being kept back for redundancies. Whoever is feeding you this stuff, i have to ask why are they not challenging this through NAPO and either whistleblowing or coming out in public and saying it? you have to wonder about the agenda they have, it is not Stalinist Russia ffs. The below blog is just again feeding and creating stupid rumours, by the end of the comments it looks like people have decided that we are morphing into the PCS!! Joanna, any barrister would say there is cause for JR, but deciding how and what avenue to go down will cost a lot of time and money before you even get started. if the best counsel going, states that certain avenues are unlikely to be succesfull, do you go against that advice or stick with the course of action that counsel advises is the best route!

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  2. Sorry to go off topic but its still relevant, at our office everyone is flat, there is no energy and all this stuff about waiting for this that and the other is frustrating and sadly people look like they have been beaten. Unions have done nothing to fight, there members have been demoralised and humiliated with the shafting process and are now working under appalling conditions without the Unions bringing this to any ones attention.

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    1. This is absolutely not true to say Napo has done nothing to fight or that Napo is not bringing working conditions to anyones attention. Hope you consider going to House of Commons on Sept 3rd and telling MPs of uour situayion.Your Branch should fund travel costs.

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  3. I agree. I am now at a point where I really don't care about j r etc. It seems like it won't roll back t r which is full steam ahead. However there is silence about how my working conditions are changing, how I am writing more reports, how we can't even meet the same demands for reports and how this means we can barely tend to our cases. It's a mess.

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  4. Press Statement

    For immediate release

    Probation union challenges rationale of payment-by-results reoffending pilots

    Napo, the Trade Union and Professional Association for Probation and Family Court Staff has today again challenged Chris Grayling to pilot his plans to privatise the Probation Service in England and Wales. The Secretary of State split the Probation service on the 1st June to facilitate the intended sell off of 70% of the services work to bidders representing the third and private sectors. The union says Ministers have told Parliament that the rationale behind the ‘Transforming Rehabilitation’ agenda has been based on the two prison based ‘Payment by Results’ pilots operating in HMP Peterborough and HMP Doncaster. The final results for cohorts 1 for these pilots are expected to be published by the MoJ in a press notice at 09:30 on Thursday 7th August 2014. (Napo will also be available for further comment thereafter.)

    Napo General Secretary Ian Lawrence said: 'Whilst we await these figures and the spurious claims of success that will no doubt follow, it’s worth remembering that the Secretary of State has misled parliament about a number of issues in connection with his reckless social experiment known as TR, and that the early results from these schemes could not possibly justify the wholesale fragmentation of the probation service and the massive operational chaos that has followed it.’

    He added: ‘It’s worth remembering that Chris Grayling has so far resisted all attempts to elicit information about the discontinued ‘Payment by Results’ pilots in Wales and West Midlands Probation, which our members tell me would have demonstrated the limitations of such schemes as opposed to the continued use of publically managed local interventions involving commissioned partnerships. These have been the basis of Probations track record in reducing reoffending to its lowest level since 2007.’

    The Union says that Ministers have previously tried to use the initial but hugely inconclusive results from the two Prison pilots to justify the proposed Probation sell off, but have failed to recognise the fact that these schemes are voluntary and will therefore be more likely to attract willing participants. This would not be the case where contracts would be handed over to the owners of the 21 Community Rehabilitation Companies (CRC’s). Napo is also currently challenging the Secretary of State to reveal the Risk Assessment of the Transforming Rehabilitation Project, and to publish the results of the testing processes which the government claims will prove that it is safe to proceed with the sale of contracts in advance the next general election.

    Editors note: The Ministry of Justice has been publishing quarterly interim reconviction figures for the HMP Peterborough and Doncaster reoffending pilots since June 2013. We expect that the final results for each of these pilots will be based on a 12 month re-conviction rate: offences committed in the 12 months following release from prison, and resulting in conviction at court either in those 12 months, or in a further 6 month period (allowing time for cases to progress through the courts).

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    1. Tee hee. I like it!

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  5. they should have piloted TR in two working probation offices in a metropolitan city. That would have been a more credible litmus test.
    We are all knackered in our office - I've had offenders telling me i'm looking tired and asking if i'm ok. This is not a good situation to be in. I am still working 9 - 5 as near as possible and I never volunteer to cover duties or anything over and above.

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