On the occasion of launching our latest edition of Latest Law this week, we have sought to respond to a question posed by an Institute member.

The individual was fully aware of the Gunning Principles, the doctrine of legitimate expectation, Equality legislation and the rest. But she was wondering whether the string of High Court cases was actually introducing higher standards or tougher barriers for consultation organisers to meet? Or were they merely ruling on the application of well-established standards to a wider range of practical situations?

It is a very good question. After all, the way in which the system works is that when Judges are asked a question that has not been asked before, it effectively invites barristers to reference analogous or similar questions from past cases and seek to apply principles considered in those precedents as a framework within which to assess what is fair and appropriate in the latest claim. So in a sense the evolution of the law of consultation depends on the extent to which the questions before the Court are new.

So what of the more significant cases in the last two years?

The Buckingham v Corby CCG case attracted much attention because the NHS was found to have broken a promise to consult. But it added little new to the law – merely confirmed that the Courts will enforce what the statute prescribed and what common law had many times reaffirmed – namely that a promise gave rise to a legitimate expectation. No great change there, then.

In November, in Sefton Council v Highways England, the Courts rejected claims that an additional, more expensive option of a tunnel  should have been included in the consultation for a proposed new road. Had the decision gone the other way, it would have been an onerous new imposition on consultors, and an extension of Judges’ influence on the choice of options. The most dramatic shift change was the Supreme Court judgment in Moseley v LB Haringey in 2014, suggesting that a single-option consultation might, under some circumstances be unlawful. Since then, however, claimants have struggled to persuade Judges to overrule a consultor’s options, but organisations have been naturally nervous about excluding non-preferred solutions from their consultations. Sefton might just strengthen their resolve.

Operationally, the case that may be causing consultation practitioners most headaches right now is the decision in the Kohler v Mayor of London case. This is the one where the claimant won because the consultor could not show that it had conscientiously considered one (admittedly important) submission. It makes many experienced organisers of consultations worry about the quality of data analysis and whether those undertaking this task have the political ‘nous’ to identify significant responses. Now it is perfectly possible to argue that the Court was merely applying the Gunning Four principle – an established rule. But on the other hand, there is a world of difference between conscientiously considering a report with the full analysis of all responses and a specific individual submission. For practitioners, it appears like a big extension of the right of consultees to have particular arguments properly examined.

The KE v Bristol CC case on Special Educational Needs and Disability services (SEND) must also be causing problems – especially for local authorities. By suggesting that consultation is required at the time when the initial SHAPE of the next Budget is agreed, the Judge may have obliged Councils to re-think their consultation practices. But then, unsuccessful challenges against Surrey and LB of Hackney may have limited the influence of the Bristol case.

Finally, there is a worry for those involved in technical consultations, or exercises based upon technical issues. In the Law Society v Lord Chancellor case last year, the Government was forced to divulge its methodology for calculating new proposed fees for criminal legal aid, and when this was demonstrated to be manifestly inadequate, the consultation was declared unlawful. The case gave us the Leggatt-Carr principles which the Institute uses to illustrate when the underlying maths most need to be transparent. If you work in the NHS, for example, and are planning the reconfiguration of hospitals, you need to satisfy Simon Stevens’ Bed closure test. Similarly, predictions of air pollution, noise, traffic or countless others impact assessments now require you to be sure that your calculations withstand the sternest scrutiny. No extension of principle, but a more demanding standard of accountability.

Crab-like, the Courts are moving goalposts intermittently, though not with great consistency. The attendant publicity, however, persuades stakeholders, campaigners and claimant lawyers that maybe there is a decisive move towards strengthening Consultee rights, leading to a steady increase in the number of legal challenges. In reality, the position is more complicated, and the changes, such as they are, appear to the Institute to be more nuanced than is commonly thought.

It is one of the reasons why we have announced our new two-day Law of Consultation Masterclass because we need the time and space to debate the implications of recent decisions and help reach conclusions about their application to different real-life situations.