Had Mrs Nash been quicker? - Clarifying Councils’ consultation obligations; ‘Best Value’ still lives!

Considering the sheer number of judicial reviews sought on issues of consultation and engagement in recent years, it may surprise many that there has been no Court case on the 1999 Local Government Act – and the Best Value regime it introduced for Councils in England.

Until now.

In August, the Court of Appeal published its judgment on a landmark case concerning the major programme of outsourcing proposed by the London Borough of Barnet. The trouble is that the case turned predominantly on whether Mrs Nash and her fellow-campaigners had made their claim soon enough. Frankly, the law has got into a tangle on this point, with commentators contrasting the relative leniency of the Judge in the recent case of King Richard III’s re-burial with the strict rule applied in the Barnet case. For these purposes, all that matters is that the Court has ruled against Mrs Nash. She did not make her claim within three months, and therefore lost her case.

BUT – the value of the case for practitioners is this. Back in April, Lord Justice Underhill decided to comment on the merits of Mrs Nash’s case – even though she was out of time. And his conclusion was

“if the application for judicial review had been made in time, I would have held that the Council had not complied with the obligations under Section 3(2) of the 1999 Act in respect of the decisions taken in 2010/2011 to outsource the performance of its functions and services ...”

(my underline!)

So what’s happening here? The Best Value concept requires a range of public bodies – including Councils – to consult representatives of the public about the arrangements they make to secure continuous improvements in the way they exercise their functions. Statutory Guidance spelt out the details. Eight years later, a wider ‘duty to involve’ was introduced

So when the Coalition Government scrapped the ‘duty to involve’ many people expected the Best Value consultation requirement also to be abandoned. Instead Eric Pickles strengthened the Guidance, and it is worth looking again at the words contained in the 2011 Guidance. This is the passage quoted by the Judge in the Nash v Barnet case

“To achieve the right balance – and before deciding how to fulfil their Best Value Duty –

authorities are under a Duty to Consult representatives of a wide range of local

persons; this is not optional. Authorities must consult representatives of council tax

payers, those who use or are likely to use services provided by the authority, and those

appearing to the authority to have an interest in any area within which the authority

carries out functions. Authorities should include local voluntary and community

organisations and small businesses in such consultation. This should apply at all stages

of the commissioning cycle, including when considering the decommissioning of

services.” (Par 3) (my underline again !)

In the Nash case, Barnet tried to argue that although it admitted not consulting on the outsourcing proposals themselves, their Best Value obligation had been met because, like many other Councils, they had conducted a Budget consultation and asked for residents/business views on their overall priorities. But how successful had these been?

In 2010/2011, the Council ran an ‘online budget simulator’; it offered a 59-question online survey. There were a ‘Leader Listens’ event, and even a ‘Leader Business Breakfast’ and letters sent to the business community. As a result there were 22 responses – with 53 using the simulator! In 2011/2012, there was an ‘ideas website’, a day-long Workshop with the Barnet Civic Network (where participants claimed they had inadequate information to form a view), another online survey and three planned Public Meetings that were cancelled because of a lack of public interest! It is not surprising that the Judge found this somewhat unconvincing.

But – and here is the point, the 1999 Act and the Guidance does not specify any particular form or standard of consultation. All they say is that there must be consultation. So Barnet and others argue that the duty is set at such a high level that there is no need to engage on such specifics as the actual programme of change that the Council proposed. In fact many Councils have believed they have a wide discretion about when they undertake a consultation – and in the absence of case-law, have been able to mount some fairly tokenistic exercises.

The Nash case ends this uncertainty. It may stop short of actually ruling that a small, unrepresentative sample answering an online questionnaire is insufficient, but the inference is clearly there. From now on, Councils will need to demonstrate that they have consulted properly on significant changes to the way they perform their activities.

Even then, so much of this argument is to miss the point. Who, in 2013, can possibly imagine that any difficult decision on important issues – with arguments and counter-arguments raging backwards and forwards – can be taken without some form of serious consultation? People affected, the wider public and the media have bought into the transparency principle and no longer tug their forelocks and trust that Managers and politicians always get it right. They expect a degree of involvement, and when they don’t see it, they issue a legal challenge.

The real penalty for Barnet may not just have been the embarrassment of looking unresponsive to local people. It was the delay and diversion of being dragged through the Courts. At least it is an experience that other public bodies can now avoid.

TRIGGER POINTS

• The original Underhill judgment (upheld on Appeal) is *R (ex parte Nash) v Barnet Council [2013] EWHC 1067* . http://www.bailii.org/ew/cases/EWHC/Admin/2013/1067.html
• This and other relevant cases are considered in detail at the Institute’s Law of Consultation courses, next run on 6th Nov in Birmingham & 11th Dec in Bristol. Note that the Welsh LGA & Public Health Wales are running three tailored versions of the Law of Consultation Course in September/October.
• For the Sept 2011 Best Value Statutory Guidance see https://www.gov.uk/government/publications/best-value-statutory-guidance--4
• Lord Sedley, who as the originator of the ‘Gunning Principles’ is a major figure in the Law of Consultation will be speaking at the Institute’s 10th Anniversary Conference - “A World that Listens?”

This is the 244th Tuesday Topic