Lady Hale’s first words last Tuesday were: 

‘It is important to emphasise that the issue in these appeals is not when and on what terms the United Kingdom is to leave the European Union.’

In other words, the case was about process – not the political issue that probably made it contentious. It did not stop Government spokespeople from blaming the whole mess on opponents hell-bent on frustrating the ‘will of the people’. And although the Judges were not attacked as they were three years ago, they still found themselves branded as part of the elite conspiracy to thwart the Prime Minister’s policy.

This reminds us of the difficulty of separating process from substance in many a judicial review. At our Law of Consultation one-day course, we try to explain how Courts must disregard the merits of any decision and instead focus solely on the process undertaken. We quote a 1995 dictum from J. Laws that states:-

‘The only question for the judge is whether the decision taken by the body under review was one which it was legally permitted to take in the way that it did’     

It is not always what is uppermost in the minds of claimants. They approach lawyers determined to overturn decisions they don’t like. No matter how. They plead with solicitors and barristers to find breaches of statutory duties or weaknesses in the process – anything that might undermine the legality of a decision. As consultation is a complex and not-very-scientific activity, it is no wonder that it frequently becomes the focus of debate. If claimants win by showing the consultation to have been unlawful, rejoicing will probably not centre around the subtleties of the Gunning Principles or another triumph for the Doctrine of Legitimate expectation. Instead, they will see a defendant public body forced to admit that it made a mistake.

In The Politics of Consultation, we argue that judicial reviews have become a tactic of choice for many campaigners, with Government departments, local authorities, the NHS and other public bodies vulnerable to challenge. Consultation is not the only aspect that is questioned; adherence to the Public Sector Equality Duty is also regularly invoked. No doubt Managers or civil servants find this irksome; they would claim that their jobs are hard enough already. Who wants busybodies crawling over administrative details on fishing expeditions for flaws or inadvertent errors?

But stay your sympathy, and reflect on the importance of being meticulous about process. In the same way, as the Supreme Court was obliged to rule about the prorogation process, the High Court is regularly called upon to consider whether consultation has been done properly. In both cases, it is the process that guarantees important democratic safeguards. For the Supreme Court, it was the guarantee of retaining a sitting Parliament without good reason to prorogue it. For more routine situations, it is the guarantee that decision-makers have given ‘conscientious consideration’ (per Gunning Four) to the views of relevant stakeholders or consultees. 

The difficulty is that consultation is ultimately about issues. So, responders will have taken time and effort to express their views about the substantive issue. Their arguments will be about hospital services, special education needs, planning proposals or whatever. The Courts are there to ensure that those views are properly sought and properly heard. No wonder it is sometimes difficult to disentangle the process from the substance.

The implications for those who work in public engagement and consultation are clear:

1. Accept that legal challenges are inevitable where people feel strongly about important issues.
2. Recognise that both sides to a judicial review will conflate the process and substance.
3. Ensure that options development/appraisal processes and other pre-consultation activities conform to best practice – so that those who feel strongly about an issue cannot argue they have been ignored.
4. Run a consultation process that fully meets legal requirements.

What Lady Hale and her fellow justices illustrated last week was that, whatever the Judges say about the scope of their judgments, there is a public view that does not distinguish between process and substance. Many see the Courtroom as the place for a gladiatorial contest between powerful public bodies and enthusiastic amateur campaigners fighting for cherished services. With a dozen QCs and an army of support staff, it did not feel like that in the Supreme Court last week. But for the myriad decisions that affect members of the public day-in, day-out, we may be grateful that the Courts – for all their faults – are there to act as a safeguard for individual liberty and the integrity of process. 

Even if, on occasion, we mix them up.