Lack of evidence-base meant a decision was irrational.

We have been looking again at a little noticed High Court judgment from late June (R (ex parte Law Centres Federation) v The Lord Chancellor) where the Ministry of Justice was successfully challenged on decisions to reduce the number of contractors participating in the Housing Possession Court Duty Scheme for Legal Aid. It has far more serious implications for public consultation practitioners than has been recognised.

What happened is that the Ministry of Justice consulted on proposals form the Legal Aid Agency – the effect of which would have been to reduce the number of community-based Law Centres able to participate in the work, and further undermine their viability. They responded to the consultation by questioning many of the underlying assumptions behind the proposals. For example, it was asserted that having fewer but bigger contracts would make the service more sustainable, but the claimants successfully pointed out that there had been no robust research to verify this and that officials at the Ministry had relied on ‘anecdotal evidence from a handful of un-named providers.’

It emerged that civil servants had misled Ministers by telling them that key stakeholders including the Law Society and the Legal Aid Practitioners Group had agreed to the policy change. This, along with other assertions in the Ministerial submission, was untrue. Worse, the consultation paper stated that an Impact Assessment had been undertaken – and even stated that it “indicates that those seeking advice and assistance … are not likely to be particularly affected…” In fact, there was no such document.

Unsurprisingly, consultees objected to the proposals, but officials took no action to address their concerns. The Response document merely asserted that the Ministry “remained convinced that moving to larger service delivery areas was the appropriate course of action.”  Mrs Justice Andrews found that this was a failure to have taken reasonable steps to become informed of relevant information before taking a decision (the so-called Tameside test) and promptly declared the decision irrational.

One of the other grounds of challenge was a breach of the Public Sector Equality Duty (PSED) During the consultation, several consultees expressed concerns around the potential damage to persons within protected categories – especially if Law Centres became less viable. The Ministry did not consider these arguments, and given the S.149 duty to have ‘due regard’, lost its case. The relevant passages in the Ministerial submission were described by the Judge as brief and superficial. In her own words “they are woefully inadequate to bring home to the decision-maker all the information necessary to enable him to discharge the duty.”

IMPLICATIONS

In many ways this is really a case about evidence-based decision-making. Here we have the Court intervening to quash a decision because it is being made without reasonably relevant information having been gathered.

Consultation is supposed to stop this happening. The rationale of having a public consultation is to ensure that relevant arguments are not overlooked, and it is rare for public officials at local or national levels to fall into the trap of ignoring consultees’ submissions and just telling those above them what they want to hear.

This case highlights starkly how important it is for consultation responses to be analysed skilfully and taken seriously. They should either prompt further enquiries and maybe research, or presented to decision-makers in a way that facilitates their proper consideration of how to deal with matters raised by those who participated in the exercise. That is why it is no longer acceptable to wait till decision-day and then advise decision-makers that The consultation has been done, and there is nothing in it to suggest you should change your minds about your preferred option …

 This is but one of a series of cases this summer that have strengthened the legal remedies for those who concede that the consultation itself may have been okay, but that the views of those who responded were largely ignored. In The Politics of Consultation, Elizabeth Gammell and I argue for an innovative set of ‘consultee rights’. One of these is the right to influence, and it is looking increasingly as if the Courts are becoming similarly convinced.

Doing a consultation is no longer enough; You now have to act upon it as well.