Another Summer of consultation Court judgments?
This time last year, we had a rush of important Court judgments on the Law of Consultation. On one day alone, August 3rd, 2018 the results of three legal challenges were published, that proved highly significant in the development of the law, and in clarifying what public engagement professionals must do – and not do – as they consult the public or other stakeholders.
Claimants do not have to win their cases for the legal action to make a difference. Putting a public body’s case under the kind of forensic scrutiny involved in a Judicial Review can be a cathartic (as well as an expensive!) experience. Campaigners will often acknowledge that going to lawyers is a way to put pressure on Councillors or other decision-makers to review their actions and possibly reconsider. That is why relatively few cases ever get to Court but those that do can face long delays. Even after hearings have taken place, weeks can pass before the outcome is announced. It just happens that Judges like to clear their desks before the Summer holidays and so many judgments are ‘handed down’ (the traditional phrase!) in July and August.
Even when claimants lose their case, the judgments are important to study, for in almost every case, we learn more about the judicial mindset and how they interpret the Gunning Principles and other legal rules that affect the Law of Consultation. Their rationale for arriving at one decision or another can often suggest to public bodies how they should approach forthcoming consultation exercises, and there can be serious disagreements that can muddy the waters considerably.
One such case was the challenge to Bristol Council’s Special Educational Needs & Disability (SEND) budget-making – found for the claimants and ruling that the Council should have consulted on the extent of the expenditure reductions at a much earlier stage than it had expected. Subsequent cases in recent months went the other way (Hackney and Surrey)– admittedly on slightly different facts – but criticism of the Bristol case Judge causes real uncertainty in what advice to give councils taking similar decisions.
What Judges say is therefore important. This week, campaigners who, following a consultation, were denied the right to protest outside an abortion clinic in Ealing went to the Court of Appeal. Next week the same Court of Appeal will consider an appeal from those who complained about the consultation by NHS Dorset to merge services as between Bournemouth and Poole hospitals. We already have this month a judgment declaring unlawful, the proposed closure of a Leisure Centre by Caerphilly, and the successful defence by Buckinghamshire County Council of its consultation on closing half its children’s centres. As we write this, we expect publication of a judgment on a legal challenge to the NHS in South Tyneside any minute!
This all illustrates the extent of activity now affecting those who work in the fields of public engagement and consultation. We live at a time when the Courts are defining and re-defining the boundaries of lawful behaviour, and where the public’s view of fairness are evolving in tune with changes in societal and political expectations. Cynicism is high; trust is low. People are sceptical about all forms of formal decision-making. Complexity has blurred accountability; only Judges are seen as impartial. No wonder we have an endless procession of claimants insisting that attempts to consult them have broken one rule or another.
Making sense of all this traffic is a major objective of the Consultation Institute through written analyses and explanatory videos on our website. The one-day Law of Consultation provides a comprehensive overview of the current state of the law, but for an in-depth appreciation of the extent of judicial interventions, we now recommend the two-day Masterclass, next in London on 19/20 November. We are happy to advise members and supporters on which option might be best for them. Call Rebecca Wright for a confidential discussion.
 R (ex parte KE) v Bristol City Council  EWHC (Admin) 2103
 R (ex parte AD) v LB of Hackney and R (ex parte Hollow & others) v Surrey County Council  EWHC 618
 The original case was Dulgheriu & Orthova V LB of Ealing EWHC 1667
 R (ex parte Hinsull) v NHS Dorset  EWHC 2331