Napo and Judicial Review
Thank you for your email over the weekend. Firstly, before responding to the specific points, can we say how pleased we are that you have re-joined Napo and the service after your much publicised resignation. As you will no doubt be aware, one of Napo’s top priorities is retaining, recruiting and training committed, positive branch representatives across all areas following the split. Whilst we are putting considerable energy and resource into doing so, despite NOMS best efforts to interfere and make this difficult, it is helpful to know that experienced activists like yourself can be relied upon to help out in our most challenging period.
Having been asked to respond to you on behalf of the Officers and Officials, it seems clear to us that that you have been misinformed about the actual position with JR and the wider organisational and resource issues that you have raised. Hopefully this reply can offer some clarity as these issues were covered extensively and openly at the NEC last Tuesday, but of course, this may not have filtered through to you clearly or accurately between then and the time that you drafted your e-mail to us.
The first piece of misinformation relates to the headline position on JR. As you are well aware, the legal system is a complex and sensitive area and it is never wise to put into print or expose one’s exact argument or position for the possibility of it being misrepresented by one’s opponents. Nor is it always possible to do so when legal points are balanced around a continually moving landscape, as is the case with our potential challenge to TR. The Officers and General Secretary have issued as much public information as they have been able to since the last AGM and in terms of accountability to members, the NEC have been continually briefed on the JR campaign. However, we can share the following, as we told the NEC last week:
- Napo is still considering submitting a Judicial Review against the proposed share sale.
- Our challenge would be based around legal arguments that the Secretary of State has not adequately assessed the risk of exchanging contracts when the service is not yet stable following the split. This failure to recognise and satisfy his own promise that he ‘would not proceed to share sale unless it was safe to do so’ therefore generates a continuing serious risk to public safety.
- Napo’s success if we were to secure a JR would be around the failure by the Secretary of State to demonstrate adequate consideration and assessment of the risk to public safety and the service’s sustainability – highlighted by a refusal to share with stakeholders findings from the various “Testgate” stages within the project.
Therefore, no-one is dragging their heels except NOMS, by refusing to share information about its own test results. However, it would be extremely counter -intuitive to launch a JR attempt just because it feels right to do so, until we hear from the solicitors and highly reputable QC’s to whom we are paying serious money, to provide expert advice; and it would be hugely irresponsible not to follow it. The timing of a decision is always the most difficult call to make, but suffice to say that had we gone for JR earlier this year as we were being exhorted to from some quarters, we are clear that this attempt would have failed.
- The timing and nature of any challenge will be dictated by NOMS response to our legal requests - hence we are not able to make a final decision on whether or not to seek JR at this exact point.
In relation to legal fees, you have mentioned estimates in the email and also via social media references which also appear to reflect a complete misunderstanding of the situation. It is correct we could apply for (though not be 100% guaranteed to get) a protected status limiting the costs we’d have to pay to the other side should we lose – estimated to be around £75,000. However, we’d also have to pay our legal costs on top of this. As you point out, a quick brainstorming session with a solicitor can cost about £5,000. Napo have had many such conversations to date with Slater and Gordon and two eminent QC’s and Edward Cooper has attended every NEC this year to carefully explain the process and the risks involved. Our planning strategy has involved Officers and Officials and it was no surprise to the NEC when they heard that Napo has spent a fair sum already in pursuing the three distinct avenues that we have previously reported to members on several occasions.
Clearly, you would not expect us to publicly provide a figure that could identify the total financial risk to Napo but to put this into perspective, you are looking at around ¼ of Napo’s reserves at a critical time for the union when we are under an unprecedented attack. We also need to take account of the fact that large numbers of members have quit the service. This is why we have embarked on the ‘Napo sticking together’ campaign which we are sure you will be promoting amongst local members, and this will require additional resources.
We continue to seek support from Unison and GMB towards legal costs but they will also only commit members’ money if they think there are reasonable chances of success. Of course a joint action could also jeopardise any protected limitation on meeting the other sides’ costs if we lost – a judge is unlikely to empathise with the big union’s financial position. All this highlights how we can only reasonably take a case if we have a reasonable prospect of winning and we must be guided by the legal advice we’re paying for in this regard as to how, when or if we do so. We believe that this represents sound leadership and good judgement and is in accord with the wishes of the vast majority of Napo members.
Seeking a second opinion
This leads us to your statements regarding Xxxxx Xxxxxxx. Dean has had some conversations with Xxxxxx (for free) in the last few weeks and again yesterday. As you are aware, Xxxxxx is a former colleague of Edward Coopers’ at RJW and we know that both hold each other in the highest professional regard. Xxxxxx has also expressed confidence in Helen Mountfield QC our retained Counsel. Therefore, he would be as surprised as we would be if, following those conversations, a previously unthought-of solution were to emerge from a brainstorming exercise such as the one that you have suggested. Indeed, after a long chat over the phone in August, Xxxxxx and Dean concluded that pretty much all the most likely options had been explored and he would be unlikely to disagree with Edward or Helen’s assessments, especially as they’ve worked together and think along similar lines.
We state this to hopefully reassure you, and anyone that you share this correspondence with that Napo would not hesitate to put reasonable resources into exploring any option that had promise – as shown by our response to your suggestion that we speak with Xxxxxx back in August. But we must also explain why we cannot waste time, energy and resources, when we’re fighting on so many fronts. Whilst we appreciate that your efforts are well meaning, your suggestion that you and Dean meet with a solicitor in hope rather than expectation is impractical and, as we are sure that you will appreciate, is outside your remit as you are not an elected National Officer. This is not personal against you, but we would have to treat every similar request from any member with the same respectful consideration and caution and the National Officers and General Secretary bear responsibility for policy in this respect.
The future of Napo
You also mention the need to maintain hope, and we appreciate that as a long standing trade unionist, you like all of us here recognise the value of unity in maintaining hope. While we are sure that it was never your intention, the two statements that you have made about ‘our hesitation’ on rushing into JR being ‘down to a need to save money for redundancies’ and to ‘pursue a merger with another union are unhelpful as well as inaccurate.
As was clearly stated to the NEC last week, Napo is determined to do everything we can to survive this attack on members and continue to operate as a politically independent, professional voice for the Probation and Family Court services. We are not currently exploring mergers with anyone. We have, as any organisation should, reviewed our medium and longer-term strategy – work that never stops. Our initial view, re-enforced by the TR experience, is that a small union that is closer to its members with accessible and democratically accountable structures, and which can present its industrial concerns through a professional perspective, will continue to be more effective than becoming part of one of the big, politically affiliated union “empires”.
Nor are we looking to lose our staff. As was also reported to the NEC, Napo is embarking on a review of roles in partnership with Napo Staff and their trade union representatives.The aim is to ensure that all Napo staff are working together in as focused and efficient a way as possible so as to achieve a maximum return for members. Again, any credible organisation would periodically review how it operates but it is critical when we’re facing so much uncertainty that unfounded rumours cannot be allowed to undermine this exercise.
However, in the spirit of openness and honesty which is part of Napo’s culture we recognise that we need to look at where we are and where we want to be. We are not yet in trouble but, if members’ lose sight of the value of Napo; if local representation can’t be maintained; if a message of hope is deliberately undermined by others for narrow political gain; or if those responsible for leading lose their nerve and waste what reserves and resources we have in panic - then very quickly we will be in dire straits.The tragedy then is that Napo would have lost the chance to make its own choices and control its own destiny.
In short, the leadership of the union are, despite all of the other pressures and the systemic assault being waged on us by the MoJ /NOMS establishment, taking their responsibility to protect and develop the long term future of the union seriously. We are doing so positively. We will not duck from any difficult questions and we will continue to do so openly, honestly, and as ever, in consultation with members and their elected representatives across one of the most diverse and democratic unions in the UK.
You mention a threat of a vote of “No confidence” in the union’s leadership at the AGM. Given Napo’s fairly recent history and the challenges we are now facing, then such a move would indeed be “a public relations gift for our enemies”. If members decide that a debate of this nature should occur at the AGM then we have absolutely no doubt that the leadership group will be robustly signalling their full confidence in the General Secretary.
The Officers and Officials have been hugely impressed at how well organised, motivated and committed our members and reps are across the country. It has also been remarkable how people have remained active, determined and positive despite the obvious professional distress caused by the damaging split to facilitate a dogmatically driven privatisation. This positivity was never more clearly highlighted than in the recent parliamentary lobby - union’s ten times our size would have been proud of the numbers there. That was not the scene of a desperate disengaged membership, and whilst we are never complacent we are not picking up examples of the disaffection that you claim is out there amongst the wider membership. Napo has a strong record over more than a century of representing every member and not just the few; this is because we have a tradition of respect and listening to each other.
The Napo leadership will continue to take energy from examples like this and hopefully continue to get a message of hope through to the frontline. Whilst these are hugely challenging and difficult times there is still a lot to be hopeful about and to fight for; TR isn’t a done deal and NOMS still can’t answer basic challenges around the future sustainability of the NPS let alone the CRCs. This remains the position as we enter these critical months of the battle.
Fairness and accountability
We are given to understand that your email has been posted on an anonymous social media site; unfortunately this was before Napo received it or was at least in a position to be able to respond. Given the factual inaccuracies that we have tried to answer above and the potential capacity for these exchanges to be misrepresented, we can only ask that you consider submitting this reply for publication elsewhere. In doing so we believe that you would demonstrate the value that I know you personally place on fairness and accountability, which are two of the most important values held by Napo members everywhere.
Meanwhile thank you once again for sharing your thoughts with us and for your continuing support for the campaign.
Assistant General Secretary, Napo
Obviously readers and particularly Napo members will probably want to comment on the above and will no doubt be drawing their own conclusions as to the reasoning, judgements and veracity contained therein. Unusually for me, I thought I'd kick things off with some observations.
I'm told Joanna's email sent Napo HQ into a panic of feverish activity, but the response has been both speedy and very carefully crafted, no doubt with a view to widespread publication. In fact, having in mind we were informed by Katie Lomas via Facebook last week that members would be updated on the position regarding TR 'next week', it seems as if Joanna's intervention has rather handily flushed out a rather more fulsome explanation than might have otherwise been expected.
In essence the message Napo HQ wish to convey is 'trust us - everything possible is being done on the JR and TR front'. At the end of the day, members journeying to sample the delights of Scarborough next week must decide if they are reassured by what they read, or not? My understanding is that there are indeed other angles that could be explored for a possible legal challenge and any legal challenge will throw a spanner in the contract awarding process.
Despite Joanna leaping in with absolutely no authority or mandate, and by the way she has not 'rejoined the service', people must decide if her suggestion has legs and if the offer from this lawyer is worth a punt of £5,000? If so, then members know which direction the wind is blowing from Napo HQ and they can start drafting an Emergency Motion now.
On the other hand, if members are happy that things seem to be progressing nicely with JR, they can settle down at Scarborough and devote their time and energy to debating the motions contained in the Order Paper.
Finally, and as an aside. I think the continued refusal to publicly acknowledge this blog site is beginning to make Napo HQ look a tad ridiculous:-
"We are given to understand that your email has been posted on an anonymous social media site"especially when I can't help but notice that it will in all probability have added another half million hits by the middle of October. That's an astonishing degree of interest and involvement from mostly committed Napo members in just over four months!