We noted with some interest and, dare we say it, even some excitement the rights contained within the Localism Act 2011 known as “the community right to challenge”. The principle was a radical one – any organisation or consortium of organisations which considered that it could run a public service better had the right to challenge, with the right to put forward its case as to how it could be done differently and better.
We knew already that the Government had watered down the potential of this power by explaining that, even if the expression of interest was accepted by the public body, the effect in many cases would be that the services in question would go out to a procurement exercise. Those initiating the procedure may or may not win this process.
Draft regulations have now been published which list the reasons a public body can give for rejecting an expression of interest under the right to challenge. Our initial optimism, such as it was, has now been severely dampened by this downpour which makes the recent torrential rain look like April showers.
If enacted as set out in the draft, there are ten widely drafted reasons an authority can use to reject an expression of interest. Examples include that “the authority considers … that the relevant body or, where applicable, any member of the consortium of which it is a part, or any sub-contractor referred to in the expression of interest is not suitable,” the authority considers that any information provided is inadequate or inaccurate in a material respect, or that the service is already the subject of a procurement exercise, or the subject of negotiations, or the subject of a possible ‘spin out’ run by at least two employees.
To our mind, the upshot of this is that any authority which wants to reject an expression of interest can do so fairly easily by relying on one or more of the grounds in the legislation. How easy will it be, for example, for a community-based organisation or consortium which is not currently running the service, to submit an expression of interest which contains no material inaccuracies or inadequacies whatsoever? How easy will it be for an organisation to prove in sufficient detail that it, and any sub-contractors or consortium partners are able to take on the service in question? This is in the expression of interest, after all, not in a full tender submission. It looks increasingly like the community has the right to challenge, but an unsympathetic authority has the scope to reject any challenge it wants to.
To succeed, the expression of interest document therfore needs to be clear and focused. From the outset, groups will also need to do their homework as to what will be involved and whether or not they are really prepared to deliver the service in question. This will mean an investment of time to understand the service properly before expressing an interest, as well as in preparation of the expression of interest itself.
So, is this going to be a case of primary legislation promising much and secondary legislation undermining it entirely? Trying to find the positives, at least community groups wanting to express an interest now have a very clear checklist set out in the draft regulations of ‘things to avoid’, and an awareness that the process of the community right to challenge is itself very challenging. Understanding what you need to get where you want is, at least, a good start in getting there.