.…and get £150 million of illegal state aid returned to the public purse
What Jeremy Irons said about us in 2016 holds true today!
We urgently need your help to win a legal appeal which will allow us to overturn a £613 million waste incinerator contract in Gloucestershire. It was awarded illegally without tender and then deliberately kept secret for three years.
Simply winning this appeal will establish new legal precedent which will ensure more open Government tenders in the future throughout the UK. Councils will no longer be able to dismiss community-supported, environment-protecting solutions simply to favour big business.
Winning the appeal will also allow us to continue our legal challenge against Gloucestershire County Council to recover up to £150 million in illegal state aid from incinerator contractors Urbaser Balfour Beatty.
We have a crack legal team ready and eager to go. We will be represented by a prestigious team of specialist procurement law barristers from 39 Essex Chambers in London, comprising Parishil Patel QC and Duncan Sinclair. It speaks volumes about our prospects for success that they have agreed to work on the case pro bono. They attach even greater importance to the outcome because a successful appeal would have national as well as local impact.
This is very rare and generous offer. However, we still need funding because there will be other legal costs such as court charges and solicitors’ fees, even though the latter are being discounted to charity rates.
“The lengths to which CR4C has had to go to expose Gloucestershire County Council’s heinous abuse of the Javelin Park procurement process are unbelievable. But the truth will out, and bit by bit, it is indeed outing. Which is why it’s now so important to maintain the pressure, and why I shall be renewing my financial support to allow CR4C to uphold such a critical public interest in this new crowdfunding campaign”
Jonathon Porritt: CBE, Environmentalist. Founder, Forum for the Future
We are a Community Benefit Society run by unpaid volunteers and supported by over a hundred local community shareholder investors. We raised some £100,000 on Crowdfunder back in 2016 to fund our alternative to an incinerator, a modern recycling plant. We now know that to deliver that project we need first to overturn this contract – the financial details of which were kept secret until December 2018. You can read more about us here: Community R4C Website
Along with other environmental campaigners, we fought against the monstrous Javelin Park incinerator for years on environmental grounds. After the first, 2013, contract with Urbaser Balfour Beatty timed out, a small cabal of officials and councillors at Gloucestershire County Council awarded them a second contract in 2016 without competitive tender. Because they deliberately concealed the financial details from the public and the majority of councillors, no one knew that this new contract’s price was a whopping £613 million! It had gone up by about £150 million - more than 30%, which is a clear breach of procurement law.
By going to the Information Commissioner’s Office, we finally forced all the financial details into the open, but only after the council's various legal manouvres had delayed it by three years.
This allowed time to build Javelin Park. Sadly this huge incinerator is therefore up and running - It is burning large quantities of recyclable waste and emitting billions of invisible, toxic nanoparticles per second. You can see the toxic plume here:
- it is belching out more than 120,000 tonnes of CO2 per year more than alternatives, equivalent to an annual return flight to Paris for every person in Gloucestershire
- it is costing council taxpayers a shocking £8.5m more per year than previous waste disposal costs.
Unchallenged, this illegal contract will last 25 years - and the plant will still be burning long after this.
The only way to change this terrible environmental and financial outcome was to submit a legal challenge against Gloucestershire County Council under procurement law for nominal damages due because CR4C was denied the opportunity to bid for the contract. This was done in the public interest to prove the procurement law breach, but had there been a proper tender, our solution would have been a real contender.
GCC could not deny the facts of the contract so they raised technical objections to our challenge. We needed to win these two ‘Preliminary Issues’ to allow full trial to take place:
1) were we in time to challenge the GCC contract;
2) would our hypothetical bid for a hypothetical tender have passed the hypothetical pre-qualification criteria?
We won on the first issue and the judge ruled that we were in time to challenge what he described as “sufficiently clear and apparent factual indication that the Regulations had been breached” (para 279 of HH Judge Russen’s Ruling)
“It was only after the abandonment of the Council’s appeal (against the Information Commissioner’s ruling to disclose) that the terms of the 2016 Contract were made publicly available. Only then was CR4C able to see what had previously been masked in relation to the increased costs.”(para 354)
This is itself a landmark judgement, showing that GCC had wrongly kept information secret for nearly three years.
However we lost on the second issue. The Judge ruled that CR4C was not an economic operator that could have pre-qualified.
The good news is that our legal team believes we have firm grounds to overturn this aspect of the judgement on appeal so that we can then proceed to the main case. Barristers Parishil Patel QC and Duncan Sinclair from 39 Essex Chambers are therefore prepared to act for us pro bono. We are now applying to the Court of Appeal on the basis there has been a critical error of law in the approach taken by the High Court as to standing, the effect of which is ultimately to deprive parties (Community R4C in this case) of proper access to the courts in the event of breaches of procurement law by direct award, which has been recognised as ‘the most serious’ kind of breach.
Although our excellent Barrister/QC team will support us pro bono, we need to pay our fantastic solicitors (Shakespeare Martineau) and court costs. We therefore need to raise funds.
All Directors at Community R4C are volunteers, admin costs and overheads are very small.
If we raise more funding we will use this to progress other related actions with the aims of ensuring illegal state aid is returned to the County Council for local services, of putting an end to harmful incineration in the County and of sharing our story with other community and environmental groups around the Country.
Nationally, a successful appeal would establish new legal precedent, which will ensure more open Government tenders.
- To pre-qualify for tenders Community groups would need only to show they 'have a more than fanciful chance’ of providing an alternative
- they would not have to be large commercial organisations with massive balance sheets
- and, if they have concerns, community groups can use the new law to challenge direct award contracts of this type, even long after the event.
Locally, CommunityR4C would win significant costs - and we will be able to obtain insurance cover to bring our damages case to full trial because we will be very likely to win. A win, or even a favourable out of court settlement, at full trial will finally prove the original breach of procurement law and open the way for up £150 million of illegal state aid to be returned to Gloucestershire county taxpayers. It will also ensure that the contract is changed to incentivise, rather than discourage, recycling.
Community R4C Director Sue Oppenheimer being interviewed by ITN about the High Court Challenge, with the incinerator in the background