Read All About It!
LET ME REMIND YOU AGAIN THIS STARTED WITH MY COMPLAINT ABOUT WASTING MILLIONS OF £s ON CYCLE LANES FOR NON-EXISTENT CYCLISTS and THE HEALTH & SAFETY OF CYCLISTS ON UK’S NARROW AND BUSY URBAN ROADS. MEANWHILE THOUSANDS ARE DEPENDENT ON FOOD BANKS! LONDON DOES NOT ALWAYS KNOW BEST.
Let me set the stage for this post.
The English Bar has a fine tradition. It is called Pupilage. You might understand it better if I called it by the more prosaic word apprenticeship. A young, newly qualified barrister is given an opportunity for a full year to see at close quarters how a top member of the Bar works. Apart from anything else it helps someone who has just passed his exams, book clever, on the journey to be streetwise.
I commend the journey to my younger readers. Street wisdom is in short supply these days. It is every bit as valuable as a degree, maybe sometimes more so.
At all events I was very lucky, very privileged to walk in the shadow of C.N.Glidewell, father of the late Iain Glidewell, later Lord Justice Sir Iain Glidewell, also in the chambers at that time. I travelled around in my pupil master’s splendid Bristol motorcar, his pride and joy. I watched him at work in Planning Enquiries – he headed up the top Planning Chambers in Manchester. I saw him cut many a planner down to size – a very small size, I saw him arguing a case.
When I came to look at Bindmans’ Advice – I had paid them in advance to write a pre-protocol letter to initiate Judicial Review of the decision of the Local Government Ombudsman – I had a benchmark from the overall experience and, from the Planning Tribunals, I had a yardstick. Good lessons learnt early last.
When Bindmans took my 100 page dossier and said that I did not have “an arguable case” , that it would be “bound to fail”, and declined to write the pre-action protocol letter, my shock and surprise something of an understatement. I don’t think C.N.Glidewell would have reached the same conclusion. He would have been raring to go.
I set out below the criticisms of the LGO’s decision. As matters stand Ms Kim Burns, the Assistant Ombudsman, – like any one of the 17 Legal Ombudsmen – is certainly empowered to make it on her own, and be legally challenged only by an expensive judicial review. There is no provision for political accountability. The Queen appointed the Legal Ombudsman.
You will see that I fault her no fewer than 11 times. Meanwhile three of her colleagues, two more Assistant Ombudsmen, David Pollard and David Connolly, and the Executive director of operations, Colin Ellis, endorse all of this and see no reason to involve Dr. Jane Martin, the Local Government Ombudsman or Michael King her CEO.
I said at the outset of these posts that loyalty could degenerate into a mutual protection society. You might wonder whether this is an illustration of that.
One of the advantages of telling a story backwards is that you can see how the conduct of the Local Government Ombudsman and her CEO mirrors that of the Chief Legal Government Ombudsman and her CEO, none putting their signature to any letter, never mind signing off the report of their staff when challenged to do so. All “toothless tigers keeping their claws scrupulously clean and leaving it to others to scrabble about in the mud of the jungle.“ What a lost opportunity to keep the public sector on its toes!
In the court of public opinion I invite you to be the judge.
EXECUTIVE SUMMARY OF DRAFT APPLICATION FOR JUDICIAL REVIEW
– An Extract –
(This was attached to the letter I sent to the Legal Ombudsman on 28 December)
E ERRORS & OMISSIONS IN Ms KIM BURNS, ASSISTANT LGO’S DECISION
- She states “As I have seen no evidence to suggest Cabinet or the Overview and Scrutiny Committee received inaccurate information about cycling figures when making its decision to approve the scheme and there is no evidence cycling figures were the motivation for the traffic scheme I have no grounds to criticise the Council.” She ignored the “overarching aim” of the Ambitions Bid and the projections in Appendix 9 where Sustrans, the national cycling charity commissioned by the Council factored into them the exponential growth of cycling in London. Although the figures given to me by the Project Manager for the scheme as reason for the scheme – if nothing else consistent with its “overarching aim” and he actually says so in a letter that he sent to Mr. C. Thorpe on 4 December 2014 “we are tasked with growing cycling in the city to a significant proportion of all trips under five miles. On numbers this could easily mean that to be successful we will need to see up to 3,000 cyclists a day using this corridor to comply with 20% of all trips under five miles.” – she is happy to dismiss this and ignore the professional survey conducted by Duncan Young showing that only about 70 cyclists a day use the High Street. She also ignores figures in National Cycling to Work Statistics 2001 -2011 and its implications for Newcastle. This does suggest that the Cabinet received inaccurate information and were very much an important part of the motivation.
- I have specifically drawn attention to the City’s Protocol to provide “an integrated and evidence based means of partners working together to determine priorities in the city.” She ignores the fact that there would not appear to have been any market research among motorists in the city confirming their willingness to use a bicycle instead of a car for all their journeys under five miles.
- I have specifically drawn attention to the City’s commitment to “open government” and in Core Value 4 making “transparent decisions.” She ignores the fact that their “overarching aim” in relation to cycles and motorists was not detailed in the consultation process and she finds no fault in the city’s consultation procedures. I pose this question: Paragraph 10.20 of the Council’s Replies to the LGO states “The changes are essential to ensure that the optimum network benefits are realised from the current programme of works to the Great North Road”. Was the whole consultation process here predetermined?
- I have also specifically drawn attention to Core Value 4’s commitment to “risk management.” She ignores the considerable anxiety being expressed by those who would know best whether the High Street is likely to suffer, namely those actually earning their living there, and accepts without question the assurance from the Council that the High Street will benefit. She ignores the health and safety risk of placing narrow cycle lanes alongside heavy traffic on a main arterial road with cyclists inhaling toxic, carcinogenic diesel fumes from the many buses, lorries and diesel-engine cars proximate to them. She also ignores the health and safety implications of allowing parking on that road in the evenings, which the City Council contemplates.
- She ignored the absence of cost/benefit analysis in relation to the road works at the Junction of Salters Road. In the circumstances there were never going to be any.
- She ignored the facts on the ground in relation to the complex reasons for the chronic congestion in Gosforth High Street <> and she declined to accept that dramatically increasing the number of cyclists to about 3,000 cyclists a day especially in rush hour providing only very narrow cycle lanes for them to ride on would add to the congestion not reduce it by virtue of there being fewer cars; and she declined to accept that this would constitute a health & safety risk for the cyclists.
- One of the most reprehensible aspects of Ms Burns decision, endorsed by all of her colleagues was her total failure to resolve the conflict between the facts on the ground as described by the Newcastle Council and evidence contradicting them, notably the number of cyclists around, the reasons for chronic congestion on the High Street, the way people get to the High Street, the availability of parking spaces in Salters Road car park in the evenings and alternative car parking spaces if the number of spaces in the car park is halved. A visit to Newcastle, not just a paperwork exercise, could have resolved that conflict one way or another. Her failure to do so is reprehensible.
- Bias here is not just an inclination. There is no neutrality here. She has deliberately loaded the scales against the citizen. The wording of her final decision is the same as the draft. She clearly paid no attention to the contents of my response to the draft. <>This is the fourth time in my life I have had to flag up in the system of government a “lousy, stinking hypocritical charade.” That is what this is.
Bindmans’ Advice, prejudging the decision of a judge, said that the case for judicial review was “unarguable” and would be “bound to fail.” It did not say simply that success was unlikely, although I would question even that. I mentioned C.N. Glidewell, my pupil master, at the outset. He would have welcomed an opportunity to cross-examine those involved.
I am sure he would have been tempted to ask Ms Burns whether she had had her eyes tested recently. I am sure he would have asked Dr. Martin whether the LGO was so short of money that they couldn’t afford the standard return rail fare from Coventry to Newcastle and an overnight stay in a Travelogue so that Ms Burns or someone from her team of investigators could check out the conflict of evidence between the local authority and the many people complaining against her decision.
I feel he also would have asked in what circumstances she and her CEO would intervene when here she did not do so, when one of her staff is accused of bias and whitewash that could bring the LGO into contempt. He would have asked her what her job actually was for which she was being paid, no doubt, a goodly salary. He might have been tempted to ask whether she saw her role and that of Kathryn Stone as a good role model for women when in position of responsibility – whether they were prepared to own it.
Bindmans’ Advice said that an application for judicial review would be unarguable and would be bound to fail. They went to quite extraordinary length to justify that. On the face of the above isn’t that total nonsense without any criticisms from me of that Advice? No wonder they refused to answer my criticisms even after the Legal Ombudsman had told them that they should do so.
In the last post I recorded that Geoffrey Bindman said that “duty of care is meaningless” and that he relied on the law contract; that I should pay for what I had asked for. I shall anticipate my next post where I detail a few of the criticisms of Bindmans’ Advice with the words I say right at the outset.
I direct your attention to case law in relation to negligent misstatement. Donogue v. Stevenson,  AC 562 House of Lords , Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 (HL), Caparo Industries Plc v Dickman and others; HL 8 Feb 1990, Henderson v Merrett Syndicates Ltd  UKHL 5 where Lord Goff said “I am of the opinion that this House should now, if necessary, develop the principle of assumption of responsibility as stated in Hedley Byrne to its logical conclusion so as to make it clear that a tortious duty of care may arise not only in cases where the relevant services are rendered gratuitously, but also where they are rendered under a contract ….”
Till next time for the rest.
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