Little did I expect that a letter protesting about the Newcastle City Council’s plan to put cycle lanes and red lines on the narrow, already congested, main arterial road through Gosforth shopping centre where there are very few cyclists would lead me to a grand tour of the defences of the UK establishment, the Local Government Ombudsman, the Legal Ombudsman and the Solicitors’ Regulatory Authority – strangely aided and abetted by well-respected human rights lawyers, Bindmans LLP, and BLM their surrogate solicitors. All of whom did their best in their own way to suppress my complaint.
One thing all had in common. They give their opinion in draft inviting comments. You provide them and, no matter how critical, the final version remains totally unaltered. It’s a bit like that with consultation, going through the motions, but ignoring opposing argument.
In this instance, the Newcastle City Council’s consultation withheld from public view the object and the agent of their proposal, namely the auto-phobic cycling lobby Sustrans, not just the bull in the china shop, the bull funded by the Department for Transport to run the place. Sustrans’ vision – 4 out of 5 of local journeys to be cycling, walking, or on public transport but not in your own car by 2020. In Newcastle read this as one car driver in 5 to abandon the car in favour of the bike for journeys under five miles. Also: “Design streets to slow down traffic to make life safer for cyclists and pedestrians”.
The arrival of the Electric Age in motoring as the world’s motor industry tools up for autonomous electric vehicles is bad news for Sustrans and their egocentric followers. This revolution, when it happens, will be much more successful in cleaning the streets of toxic fumes and heading off fatal and serious accidents than their “wouldn’t it be nice if scenario” that twice as many people will use a bicycle by 2020 if only they are given a cycle lane to cycle on.
Under their malign influence from their regional offices it’s not surprising that only five councils have so far availed themselves of the £400m the Chancellor made available in the November budget to install charging points for electric vehicles. Without them the AA calculates that 8 out of 10 drivers will not buy an electric car.
This certainly applies In Newcastle. Charging points would be a much more beneficial provision for residents in Gosforth and Jesmond than cycle lanes. Many streets are lined with cars 24/7, many houses built there before cars and without garages.
Yet in the next few years all the major car manufacturers and Tesla and Apple will be advertising their new models to get a share of the market.
There is a price to be paid for suppressing complaints to protect the incompetent and the short-sighted, and the ones who want a quick fix and the cheapest one too, if they can find it – like flammable tiles to save energy in tower block flats and modernise their appearance. For Kensington read Camden or anyone else caught in the trap of badly worded building regulations and light touch inspections.
As I have said elsewhere, complaints are an early warning system that something is wrong. Suppress them and warning lights are set permanently at green. Bad decisions are never re-examined. Taxpayers money is thrown away by those who would not spend it if it was their own and, here, very necessary change is thwarted.
A golfing friend of mine, sadly no longer, introduced me to the expression “it’s like hitting a rolled-up sock.” That is what complaining is like in the UK. The people at the top don’t want to know. The Local Government Ombudsman who heads up umpteen Assistant Ombudsmen and the chief Legal Ombudsman who heads up 17 Legal Ombudsman leave it to them to make decisions which their colleagues will endorse when challenged. They do the dirty work, while the ones at the top keep their hands clean and their pockets lined.
Those in the public service who want to do an honest job should worry about this. If you think about it, this is how democracy can degenerate into autocracy when those at the top are allowed to avoid personal responsibility for the actions of their subordinates.
I read this only last week: “The benefit of controlling a modern state is less the power to persecute the innocent, more the power to protect the guilty” David Frum “How to Build an Autocracy“. Beware Darkness at Noon.
There are two other defensive weapons. One is anonymity and the other the financial risk of losing to take them on. I have just witnessed both of them. I had already witnessed the financial risk when Bindmans went to great lengths to tell me how expensive an action for judicial review could be. That financial risk, however, would arise only after the pre-action protocol letter and the response to it. At that moment, it didn’t put me off.
If you have been following my posts you will know that I have taken the first step to recover £2,500 and damages from Bindmans LLP for negligence and breach of contract. Even though I had given them a dossier of 100 pages of evidence supporting an action for judicial review they had said that their professional protocol and mine as a (non-practising) barrister forbad writing a pre-action protocol letter because the action would be “bound to fail.” They could have said that it would be highly unlikely to succeed, and still written the letter.
I wrote to Bindmans saying that I was proposing to take them to the small claims court. The reply came back from KC, a solicitor for BLM, who described herself as a “file handler”. Essentially, she was the paid postman. She said that the case would not stay in the small claims court. It would go before a High Court judge that would be costly, by implication heavy court costs as well as BLM’s.
I replied and said I would keep it simple, one criticism of Bindmans’ Advice not thirty-three, and I sent her my pre-action protocol letter.
On 4th January – just 2 days before the 3 months allowed for the reply KC sent it to me, as before signed BLM. I wrote back saying “Every letter has an author” and asked for the name. KC replied: “The author of the letter(s) is BLM (t/a Berrymans Lace Mawer LLP) as explained in my last letter to you.” I repeat here what I wrote to KC: “Anonymity is the refuge of the coward.”
BLM’s anonymous letter-writer wrote “The claim would be inappropriate for the small claims track and so, as is common in civil litigation, you will run the risk of paying your opponent’s costs by pursuing it.”
I have a decision to take. Should I take Bindmans to court? I will answer this at the end.
First, two quotes from the letter.
“You have failed to identify within your Letter of Claim which statement you believe has been made carelessly”. Not true. On first page of my letter there was specific reference to Bindmans’ statement that the case would be “bound to fail.” This was not made carelessly, it was made deliberately. Bindmans usurped the role of the judge and, if correct, a libel on the judiciary. Like the Local Government Ombudsman, it would be a tool of the State if the action was bound to fail.
“There is no need for us comment on the background to your complaint in relation to the cycle lanes in Gosforth High Street or to the multiple allegations of impropriety, collusion and corruption you voice about local authority and Ombudsman officials as their merits have no direct relevance to the claim you propose to bring.”
When I challenged this, the unknown letter writer said: “the evidence does not show bias in the legal sense.”
This goes to the heart of the matter and I shall stay with it. There is a common-sense view of bias and Bindmans’ version of “legal sense”.
Browsing the internet, I came across following description of bias.
The 100-page dossier and, notably, the Errors & Omissions in the decision of the Assistant Local Government Ombudsman, Kim Burns, ticks all four boxes.
I like this common-sense view and go along with it.
The following is Bindmans’ “Legal Sense” – in their Advice to me justifying their view that judicial review would be “bound to fail.”
6. Public law recognises three categories of bias: actual, presumed and apparent. An allegation of bias is serious and should only be made on the basis of clear evidence. In short, we see no evidence in the papers beyond assertion and disagreement with the conclusion reached by the LGO that suggests that the LGO was biased (whether actually, presumably or apparently) in rejecting your complaint against the Council.
7. The most frequently raised category of bias is apparent bias, the test for which is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased. In our view, that test is not met here. In particular the mere fact that, at various stages throughout your lengthy correspondence with the LGO, staff within the LGO office upheld prior decisions of their colleagues would not, in our opinion, lead a ‘fair- minded and informed’ observer (or, therefore, a Judge) to conclude that there was a real possibility that those individuals were biased. To establish bias some factor outside the decision-making process itself is required to give rise to a real possibility of bias. If this were not the case, then every decision of a decision-making body would demonstrate bias against the person to whom the decision was adverse.
These are just words strung together into sentences.
It would have been much easier to write the pre-action protocol letter!
- The whole was made on the hoof, not on the basis of any quoted legal authority.
- It should never be argued that just because you don’t like it, an adverse decision is a biased one, and I didn’t. It is the way in which a decision is reached that can evidence that. That is what the dossier evidenced, why it is highly relevant and not something to be dismissed out of hand in one short paragraph as irrelevant.
- I did not base my argument on a disagreement with the conclusion reached by the LGO. I based it on their methodology and accountability. Bindmans acknowledged this elsewhere.
- Again, I repeat, Bindmans did not provide the legal authority to say that to establish bias there must be “a factor outside the decision-making process”; but there was one! I pointed it out to them, the covert and malign role of auto-phobic Sustrans, the cycling charity and lobby. They created their own Aunt Sally here, but totally ignored the coconut. The failure of Newcastle City Council to identify their “overarching aim” in their consultative procedures and the role of Sustrans in relation to it – it provided and sustained the Council’s hidden agenda.
- No wonder they led me on such a merry dance with the Legal Ombudsman as they tried to avoid having to respond to this. And shame on the Legal Ombudsman that they did not insist that Bindmans should.
I take the view that their “legal sense” is non-sense.
Let me sum this up. Bindmans did their utmost to snooker a judicial review of Local Government Ombudsman’s decision. At one and the same time they helped to keep from public view systemic weaknesses in the Ombudsman system, bureaucratic incompetence at national and local government level and, as serious as anything else, the hijacking of the UK’s urban transport system by Sustrans, the cycling lobby and charity, distorting priorities when everyone should be addressing the now urgent need for charging points for the new generation of electric vehicles and not new cycle lanes.
I need to draw this to a close. I shortly celebrate my 85th birthday and I have health issues to attend to. I have travelled the road as far as it will safely go. Ten years younger I would have had my day in court. Now I use the court of public opinion. I do not withdraw a single word of my criticism of Bindmans and, if they wish to take action for defamation that they threaten, so be it. Likewise, as I have said, I will assign all my rights to claim from them for a peppercorn to anyone would like to exercise them.
The purpose of my grand tour should now be clear, to add my experiences to a better understanding of the anatomy of the political cock-up.
Isn’t it time Bindmans LLP stopped the pretence?
Didn’t they actually NOT want to write the pre-action protocol letter in the first place? Isn’t that why they looked for reasons to justify not writing it? For them, if not for me, a can of worms was best left unopened? Lawyers have leanings, sympathies, instinctive reactions, Bindmans’ were not mine.They failed to see that the right to be heard is an integral part of my freedom of speech.
Human rights are not all equal, they are different
Along with other human rights lawyers, they assert the equality of human rights, but focus on those of the disadvantaged for which they are properly admired, but ignore the rights of others, here mine, that conflict with them. This is a major fault line that I also witnessed in relation to the homogenising of State education – Special schools and Grammar Schools stigmatised, technical education closed down, size 7 shoes for everyone.
They hide from public view bureaucratic incompetence to preserve the naïve belief that the public sector is beyond criticism and reproach, always committed to serve the public, while the private sector with its profit motive is there to exploit them. That is a gross political distortion of reality. When will Karl Marx finally die?
I worked in the private sector for thirty years. I certainly witnessed naughties there, but nothing compared to the obscenity of the sting orchestrated against a special school and its parents – best left in my archives – that I witnessed in the public sector. In the last two centuries, human greed for power and human fallibility have a lot to answer for in all walks of life.
I need to flag up the fact that both the public sector and the private sector are there to serve the public. Competition keeps the private sector on its toes, accountability should do so in the public sector but, in the top jobs, it is significant by its absence. They protect their own in NSMSP – the National Society for Mutual Self-Protection. Instinctively they watch each other’s backs.
Both the Local Government Ombudsman and the Legal Ombudsman serve the State not the public with the staff working to that remit while those who bear the name Ombudsman keep their hands clean and their pockets lined. Their Scandinavian title suggests the exact opposite.
Thus, complaints that should act as an early warning system are suppressed, and warning lights are permanently set at green. I have seen this with special educational needs as well as cycle lanes, and more recently with the flammable tiles on tower blocks to improve their insulation and appearance, Camden no different from Kensington.
This ought to be a matter of great concern to all those working in the public sector who would like to do an honest job of work but can’t. Student debt has to be repaid. Jobs precious. And a very greasy pole there to climb. Standards of conduct? Forget it.
Sustrans, the auto-phobic cycling charity and lobby
Sustrans has been allowed to hijack transport planning in the UK. Millions of £s are wasted placing cycle lanes for non-existent cyclists as in Newcastle or gridlocking traffic in London; the health & safety aspect of cycling on UK’s narrow and already congested streets with cost to the NHS, subordinated to their dream: “By 2020 4 out of 5 local journeys to be made by bike, foot or public transport. That’s double the current figure.”
Get ready for Electric Cars
Charging points not cycle lanes should now be the urban planning priority. Times 13 January 2018 p.4 “Electric Car Revolution is stalled by councils… only 5 councils had taken advantage of government funding to increase charging points.” And “Jack Cousens of the AA said ‘Eight out of ten drivers say a lack of charging points is reason why they will not buy an electric car’”
Their narcissistic love of the bicycle totally blinds them to the next IT revolution; electric autonomous vehicles will at one and the same time reduce accidents and air pollution.
Please note also in the Times “First mass produced driverless car …by General Motors … on US roads next year.”
The UK’s car industry surely expects action not words, still less obstruction.
It is total self-deception – in a world where money does so much of the talking. Lawyers, like those I have met in Bindmans, should look themselves in the mirror. “O wad some Power the giftie gie ‘em To see themsels as ithers see ‘em!” They preach Equality. Ho Ho.
Green for Danger when Complaints suppressed and Warning Lights flash Green
Lawyers, whether they make laws, create rights as legislators, or administer them in the courts, they need to have 360-degree vision not 30-degree vision. They should acknowledge the rights of the “haves” in society as well as the “have nots” recognising that rights are not equal, and sometimes may differ and conflict. And they have a special responsibility to maintain the checks and balances that prevent democracy degenerating into autocracy – all this without fear or favour. Bindmans fail this test.
This is my reply to Bindmans’ response to my Pre-action Protocol Letter. I shall include it in the next edition of my book Death of a Nightingale along with edited down versions of the twenty-five posts that provide the background detail. Future generations in my old college Merton may find it more helpful than the present one does.