A tale of two cases - Two High Court judgments on the pre-determination of consultation – within a week

Court cases are very seldom lost on the mechanics of a public consultation.

But increasingly, dissatisfied consultees are challenging public bodies by alleging that the consultation is a sham and that decisions have effectively already been taken. It’s called pre-determination, and the advent of two quite separate cases – one on NHS service changes and another on Library closures - is an opportunity to reflect upon the state of the law … especially as they produced quite different results.

They are both classic scenarios, in the sense that there are many other public bodies wrestling with identical issues right now. The Hywel Dda Health Board may be operating in the Welsh rather than the English NHS system, but the problem it seeks to solve has parallels throughout the United Kingdom. To address long-standing financial and service quality issues, it finds itself having to consolidate some service or treatments in fewer centres; in rural areas with lengthy journeys to hospital, they are hugely controversial. When the Board decided to reduce the extent of clinical cover at the Prince Philip Hospital, Llanelli, campaigners argued that a leaked document from 2010 revealed that there had been a secret plan all along, and that a failure to disclose this in the consultation made it unlawful.

For Lincolnshire County Council, the problem was to implement a £2m budget reduction for its Libraries service. The Council had worked on a detailed re-configuration of its service, involving a large reduction in the number of static Libraries from 44 to 15, and the offer to develop a number of ‘community hubs’ for smaller communities. It made clear that the consultation could not influence the number and definition of the proposed ‘static’ Libraries, but invited views on the criteria it had used for the exercise. In the event, this case turned mostly on the alleged failure of the Council to consider an Expression of interest (per the ‘right to challenge’ under the Localism Act 2011) by a charity, and the consultation issue became somewhat secondary.

What have these in common? Both challenges were essentially motivated by a desire to set aside the substantive changes to public services, but in both, campaigners thought they had been cheated in the consultation process. Their sense of grievance stemmed from a feeling that no matter what was said in the consultation – it would have no impact upon an organisation whose mind, they claimed, was made up.

Courts can be unpredictable, and cases often turn on the quality of the detailed evidence – or even the choice of arguments advanced by lawyers. What happened here is that the Welsh

campaigners failed in their legal challenge, but the Lincolnshire Library protesters won their case. So what led to the different outcomes? There appear to be three key factors:

1. In the Hywel Dda case, there had been extensive pre-consultation, enabling the Board to take public views fully into account in formulating its options. Because it could point to a visible options development process, it could rebut any suggestion by the claimants that the ‘secret plan’ amounted to a preferred option all along. In contrast, the Lincolnshire proposals had no comparable pre-consultation, and strengthened campaigners’ case that they had less opportunity to influence.
2. The Hywel Dda consultation document offered options, albeit that these were unattractive to the claimants. Lincolnshire, in contrast, produced a single plan, and even stated in the document that the “number and definition of Tier 1 libraries” had been decided and could not be influenced.
3. The Hywel Dda Board were able to demonstrate a consistent approach to the problem and used the consultation to inform its decisions. Lincolnshire tried to argue that – despite what the consultation document said – it was open to alternative proposals, but then found its rejection of the Expression of Interest difficult to reconcile with having an open mind.

The Consultation Institute worked with both these organisations, and offered help with quality assurance. But the Lincolnshire result (unless it goes to appeal) will oblige us to take a much stronger stance with clients who insist on a ‘single preferred option’. In the past the Courts have taken a sympathetic line with public services who conclude that there is only one way forward, but recent decisions suggest that it is becoming more difficult to produce convincing evidence that no alternatives exist. (See the recent Rusal v London Metals Exchange case)

But in reality, this all just reflects a wider issue. Trust in public bodies and decision-makers has declined. If there ever was a time when senior figures could say “Trust me; there is no alternative”, those days have long gone by now. The onus is firmly on those running a consultation to demonstrate how various approaches to a problem have been considered, and preferably to show that public involvement in charting the way forward has informed its options. We can expect more High Court challenges on pre-determination if the public suspects that such a process is not properly undertaken. And, as last week shows, they can go either way.

TRIGGER POINTS

• The two cases considered in this Topic are:
• – R (ex parte Flatley) v Hywel Dda University Local Health Board [2014] EWHA 2258 (Admin)
• – Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin)
• Both cases will be covered in the Institute’s Law of Consultation training courses. Next dates are:- 9th September (Belfast), 25th September (London), and 19th November (York)
• The Institute’s Quality Assurance Scheme helps organisations ensure that consultations meet best practice standards. For information please contact Jan Warner

This is the 263rd Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement