Thursday, 2 October 2014

Napo and Judicial Review

I'm pleased to report that Joanna Hughes has received a response to the suggestion put to Napo's leadership at the weekend and it is published here, apparently at their express wish.
Dear Joanna,

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.
  • 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.
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.

Costs

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.

Leadership

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.

Yours sincerely,

Yvonne Pattison
National Vice-Chair

Dean Rogers
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!   

24 comments:

  1. I will have to admit to being seriously puzzled and confused. Much like MoJ & NOMS missives, the NAPO response is, prima facie, a credible and well argued response. But I don't know what or where the truth is. What do I believe? If I choose to be a 'loyal member', am I then vulnerable to being manipulated and hoodwinked by NAPO leadership? I felt this to be the case when the former GS was paid off after his dreadful behaviour in office - behaviour I assume wasn't unknown or unnoticed, yet it was shrouded in secrecy. That didn't help my trust in the leadership. I also feel that the TR catastrophe has been allowed to unravel, rather than have NAPO's paid Officers and officials dig in and fight their members' cause. That's why I thought they took £30 a month off me; not as subs for a shiny leaflet and some stickers & a calendar. For example, Tanya, why hasn't there been such an eloquent and carefully crafted rebuke of TR? The Guardian Open Comment would have been an excellent forum to respond to Grayling's puff-piece.

    Or do I believe what Joanna represented - a view Mr Brown holds and shares via his far-from-anonymous blogsite, and who appears to have information sources which dispute the carefully crafted words of NAPO. Its a view open to debate and challenge, which leads me to believe it has stronger foundation in fact and is more robust.

    But as an 'umble member, I haven't a clue. All I do know is that TR is a fucking nightmare, its ruined an honourable profession and has lowered the bar when it comes to quality of intervention.

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  2. Oh well said, I couldn't agree more. I just do not know what to believe but I do know my faith in the NAPO leadership is shaken. This is a truly awful time with so little faith in managers and even some colleagues, how ever did this get to be so bad? Grayling is truly despicable.

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  3. First impressions at reading NAPO's response? 'Damning with faint praise' coupled with a resounding brush-off.
    Deb

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  4. Probation Officer2 October 2014 at 09:22

    Reading between the lines it seems there will be no JR. There's no doubt Napo has been considering JR. The problem is that it is taking so long considering JR that 50% of probation will be sold by the time Napo reaches as decision. The 'we are asking other unions to chip in' bit (Unison and GMB) is a redundant approach. Other unions are not committed to fighting TR partly because probation staff are a tiny part of their membership and are so unlikely to sponsor a JR. Napo will spend the next few months "liaising" with these unions, will get past the coming conference, and will then tell us JR is too much of a risk. There will be no JR of TR, and Napo will instead ask we put our hopes in TR delays and Labour winning the election (and after DC's media hogging speech I'm not convinced they will).

    Napo's leadership doesn't support JR and is probably more interested in saving that 'quarter of it's reserves' for it's conferences, away days, trips to Cuba and future redundancy payments to self.

    The dye is has been cast and it won't be long until Napo will be swallowed up by the bigger unions. NPS staff will defect to a more effective civil service union as we'll need better against whatever cuts are coming, and CRC staff will not waste money on unions that will be useless against the big corporations that'll own us. In the meantime I aim to enjoy the conference and make my voice (and discontent) heard as I think it'll be our last.

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  5. '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.'

    This seems to me to be the crucial passage. It all depends on dictatorial NOMS. And what if they do not respond, or continue dragging their feet until TR becomes a commercial fact on the ground. I think Napo is looking more for JR exit strategy, though it would be useful to know what they will do if NOMS do not respond to their legal arguments. Do they have a D-Day?

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    1. Doesn't ring credible to me. Surely the whole point of commencing JR would force MoJ / NOMs to respond accordingly? How much "serious money" on doing nothing - and which "highly reputable QCs" (how many do they need?) are in receipt of serious money for advising the timing isn't right? At this rate they will run out of time and money altogether. There appears to be no sense of the urgency or determination as shown by JH or the contributions on this wholly necessary and valuable blog. I am feeling absolute disbelief that our CJS faces creeping privatisation and corruption by a ruthless bunch of career politicians who view the 'little people' as minor irritations to be crushed by whatever means available even if that means behaving unlawfully.

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  6. At what point does lack of info from MOJ become a reason for action rather than an excuse for inaction? Are they just trying to get past AGM without a riot?

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  7. I would laugh at this if I did not think it had a ring of truth!!

    https://www.youtube.com/watch?v=0YBumQHPAeU

    Please please watch. If only there was one for Comical Ali Grayling.

    NB, small sweary bit in it.

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    1. That's a great video. Lol made me laugh. Lol

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  8. http://www.bindmans.com/news-and-events/news-article/a-legal-challenge-to-the-lord-chancellors-guidance-on-inquest-funding-is-given-the-green-light-to-go-ahead-today-by-judge-mrs-justice-andrews-sitting-in-the-high-court#.VC2Cv3CxGGk.twitter

    Another jr going ahead, no sign of a probation one.

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    1. At a hearing for permission for Judicial Review today, Joanna Letts was granted permission to pursue her challenge that the Lord Chancellor’s Guidance on Inquest funding is flawed and unlawful.

      Joanna Letts is a single mother, with four young children and she lives in Lambeth. Her brother, Christopher Letts was aged 29 when on 19.8.2013 he threw himself under a train at Tooting Bec station whilst mentally unwell.

      In preparation for an Inquest, now listed in January 2015 for 4 days, Joanna Letts applied for Legal Aid in order to be represented at this hearing. Legal Aid was refused to her on grounds that she could represent herself even though she has no legal experience and is responsible for looking after her four children and even though SLAM and Kewstoke Cygnet were to be represented by Lawyers at the hearing, and there are other Interested Parties in the case. The Inquest will consider how Christopher came to his death only four days after he was allowed to leave hospital.

      Only after Judicial review proceedings were issued against the Legal Aid Agency and the Lord Chancellor as an Interested Party, did the Legal Aid Agency review its decision and agree to grant funding.

      Joanna Letts had by that time suffered huge stress and anxiety that she decided that although funding had been agreed in her case, other families who were being denied Legal Aid should not be denied justice owing to the very high threshold set by the Lord Chancellor’s guidance.

      Inquest and the Inquest Lawyers Steering group have been supporting the case arguing that bereaved families deserve representation if they are to have justice and that their involvement with representation is vital so that the full facts can come to light about how their loved one died.

      The Judge found that the denial of legal aid raised issues of wider public importance and granted permission.

      Joanna Letts said:

      “I am so pleased that the judge granted permission - I have been through hell with my brother’s death. The thought that I would not have the help of my lawyer at the inquest and be able to uncover what happened has caused me grief. It would have been a David & Goliath situation - and that would have been so unfair. I also don’t want other families to go through what I have been through and that is why I am fighting this case.”

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    2. A thought - Joanna Hughes, fancy a lone pop at JR with crowd funding for anything that can't be achieved pro bono? Forget napo & follow in the courageous footsteps of Ms Letts, perhaps? I'll pledge £50 now towards it. I'll dig up your email address and make contact over this weekend.

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  9. I guess this is now tipping point for NAPO, JR or die !

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  10. I would find all of this criticism of Napo laughable if not so worrying. Members are part of a democratic orrganisation where we can debate issues and every one of us can have our voices heard whether through Branch meetings, NEC, AGM or a ballot. Napo members are not constrained by gagging orders from senior figures, concealment of essential information about our profession and our futures or subjected to complete lies about the current state of affairs (as we are in the workplace). Yet our union receives nowhere near the respect and compliance that our employers do. Everyone seems to forget that a union is only as strong as it's members. Really we should be striking with the other public sector unions next week but with our weak membership, many of who cross picket lines and work extra hours despite the work to rule campaign, Napo leaders don't stand a chance!!

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    1. What weak membership?! Its lmembers who were there in Epsom,members who went to Birmingham,members who have picketed MofJ,local offices,visited local MPs in their constituencies and in HofC,written to press,appeared on local radio and tv news....don't write us all off

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    2. Respect is earnt. Taking the piss out of the members by talking about fighting while in practise ignoring the wishes of the members and doing fuck all is not going to earn that respect. You think our criticisms of NAPO 'laughable'? As opposed to what? A campaign that has so far consisted of 'write to your MP' and baseless claims that 'The campaign continues' is hardly something to be taken seriously. Calling the members 'weak' is an insult to all of us. The union leadership have failed to build the fight and have been more concerned to discourage members from taking effective action. Your comments here are just more of the same.

      Simon Garden

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    3. Obviously there are active, passionate members who do fight for the cause - my comments were not writing everyone off - it is inspiring to be in the company of determined and passionate members who strive to save the Probation Service. Unfortunately, we are few.

      How many members actually send back a ballot form?
      How many are interested in the motions submitted for AGM?

      I have been involved in setting up rallies/marches where the Napo leaders have attended to address members - no one turns up!!!

      How can they build the fight when no one is listening?

      If you want effective action ask for it, submit Motions for it, campaign for it and mostly adhere to it when it happens.

      Stating we have a weak membership is not insulting - it's the reality!

      TW

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  11. Just to pick up your last point I suspect if we were balloted on pay we eould vote for a dtrike but at time of summer PCS strike Ian Lawrence sdvised we couldn't ballot on sttike because of where we were in pay negotiations and I've not seen any updates since other than the news the last NNC was generally difficult. I suspect there would be more respect if we hadnt had the JL debacle and the further losses of the last co-chairs who both stood down.

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  12. Face facts NAPO have zero intent in pursuing a JR, they already have their excuses not to. Message to national
    NAPO and thanks for nothing!!!

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  13. We may well have had a vote for strike but would all members honour it? And as for the JL debacle - it is JL and the other party who should take responsibility for that.

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  14. couldn't agree more!

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  15. I have today resigned as PO who was mercilessly based in a CRC.

    NPS is over staffed compared to CRCs. Cases are deliberately left at medium risk in some cases because increasing the risk involves way too much bureaucracy and decision ultimately rests with NPS. CRC managers have therefore become disillusioned and perhaps unmotivated to continued repeating the exercise when having to increase risk with cases.

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    1. Soo sad to hear that you are leaving the service. :-(
      TW

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  16. To anon 21.53 this is desperately sad news-I hope you are not alone and have support from family,friends and colleagues.

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