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