An absence of consultation?

Two consultation tales in one City – raising questions about the willingness to consult ?

One City – London. And two news stories within days of each other giving rise to interesting debates that matter right across the country.

One news story is distorted by the involvement of the local MP – none other than the Leader of the Opposition, Jeremy Corbyn. According to the Islington Gazette he has jumped into the row about trampolines at the Sobell Leisure Centre. Basically, this is a decision by Greenwich Leisure Services (GLL) to build a new facility by using space currently used by about 500 five-a–side footballers, who claim that GLL – or the Council - should have consulted them before taking such a decision. Mr Corbyn is quoted as saying “ …for many years … their voices have not been sufficiently heard ..” and this is taken to suggest he agrees that consultation should have been undertaken.

Next door, at Haringey, there’s an all-out battle over regeneration plans for several council estates. In some ways, this is a re-run of the Lambeth case concerning Cressingham Gardens which led to two High Court cases on the law of consultation. In the first, the Bokrosova case, unhappy tenants won their challenge when the Council withdrew the refurbishment options mid-consultation. Despite the Council winning its case the second time around – the subsequent consultation being declared lawful, London Boroughs are left pondering about how much and what kind of consultation may be needed over major housing regeneration schemes. Haringey’s campaigners now claim that the Council wants to transfer £2bn of public assets to the ‘Haringey Development Vehicle’ without adequate consultation.

With Kensington & Chelsea still in shock over the Grenfell Towers fire and the London Mayor’s office having to defend criticism that its consultation on Police counters was well below-par, there are real questions about the state of consultation in the capital.

Clearly, as elsewhere in the country, local authorities are under immense financial and operational pressure. One can sympathise with elected members and officers needing to make changes and fearful that consultation just prolongs the agony. There is also the reality that, unlike NHS Managers, for example, Councils have democratic legitimacy and are perfectly entitled to take tough decisions on behalf of local communities.

However, the law DOES apply to them, and Courts have repeatedly ruled that people being deprived of a benefit they currently enjoy have a right to be consulted by virtue of the doctrine of legitimate expectation. There is obviously a question of proportionality, but this does not change the entitlement per se; it is rather a feature of the kind of consultation one might expect. The five-a-side footballers of Islington are probably not looking for an all-singing, all-dancing, twelve-week exercise with a comprehensive consultation paper, an online questionnaire, public meetings and the rest. What they want is the opportunity for their arguments to be heard – that is all. Broadly, Corbyn has called this one right.

In Haringey, however, the issue raises Borough-wide questions about the future provision of social housing. The list of potential stakeholders goes well beyond the residents immediately threatened with losing their homes, and signals a significant change of policy. If, as seems possible, this goes to the High Court, expect arguments as to whether anything said by consultees will be likely to make a difference. One of the reasons why Lambeth won the second case in December was that despite the Council having failed to provide some critical information, there was no evidence that consultee submissions could have made a case that might have altered the decision. Judges may be getting perilously close to adjudicating on the merits of the case when they make rulings like that, and yet again it raises concerns as to whether the Courts are the best place to solve disputes like this.

Far better to consult properly in the first place. Many London Boroughs have a reasonable track record on consultation. But note that, on these occasions, Islington’s Sobell Leisure Centre is run in partnership with Greenwich Leisure Limited. Haringey’s traumas stem from its association with the property group, Lendlease. Previous consultation with residents at Grenfell Tower seem to raise questions about the role of the Kensington & Chelsea Tenant Management Organisation (KCTMO). Is it purely coincidence that recent consultation controversies appear to centre around situations where third parties are involved?

All significant changes that affect people’s lives and which are decided in the public space should be subject to effective public engagement and consultation. The scale will vary, as between the Islington footballers on one hand and social housing tenants in Haringey on the other hand. But the fundamental premise of consultation should not be in doubt and it should not be necessary to go to Court to enforce it.

TRIGGER POINTS

1. Is your organisation vulnerable to challenge when dealing with third party partners?
2. The first Lambeth case was R (ex parte Bokrosova) v Lambeth LBC [2015] EWHC 3386, also discussed in Tuesday Topic 289 – Summing up the Options
3. The second Lambeth case was R (ex parte Plant) v Lambeth LBC [2016] EWHC 3324
4. The Islington Gazette story can be found here
5. The Stop Haringey Development Vehicle campaign can be found here
6. The issue will feature in the next Local Government Special Interest Group meeting (date/venue available soon)

This is the 325th 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.