Originally published 6 November 2007. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
Make no mistake; this High Court judgment will have a major impact upon the conduct of public debate in the United Kingdom.
It’s not that this is the first time that the Courts have intervened when public consultation has been flawed - there have been previous cases - but until now, these were thought to be idiosyncratic situations from which only limited conclusions could be drawn. Or else, such as the important case last November, where the Consumer Council in Northern Ireland succeeded against the Northern Ireland Office over Water Charges, they received little publicity, and were largely unknown outside specialist legal circles.
But this time, Mr Justice Sullivan’s quashing order became headline news, and although Greenpeace naturally want this to be a story about nuclear power, we think the implications for public bodies everywhere are immense; as a story for consultation professionals, they don’t come any bigger! It will be necessary to look in detail at the Greenpeace decision when it is published in the coming weeks, but taken alongside the recent Northern Ireland case and the NE Derbyshire NHS case last summer, we can already be confident about five key implications:
1. It is possible to win. Three precedents have now been set, and this will encourage all those consultees who believe the consultation, in which they participated, to have been flawed. Not all have the resources to go to court, but expect action from environmental pressure groups opposed to roads, airports, and other infrastructure projects.
2. Win or lose - the political damage can be high. Notice how difficult it was for the Government to dismiss the judgment as a technicality. More importantly, notice how allegations of fiddling a consultation impugn the integrity of the consultor, and how a little mud sticks even when unjustified.
3. Statutory consultations become particularly significant. Parliament has inserted a duty to consult into many recent Acts of Parliament, and the chickens may now be coming home to roost. If you work in a Council or public agency with a legal duty to consult, you may need to take special measures to ensure you are free from likely criticism.
4. Otherwise …….consult only when it’s appropriate. Best practice it may be but there was no legal duty on the Government to consult over nuclear power. It was just a commitment it had volunteered at an earlier stage of policy-making. Clearly events overtook this Government, but this is a risk in many fields. In future, public bodies will need to avoid such hostages to fortune unless they can be sure that they can enter into a future consultation with a truly open mind.
5. Consultors now need to be meticulous as never before. The process must be as foolproof as possible, but also the Greenpeace case shows that Courts may also look at content. The Judge was critical of the consultation paper and declared that information given to consultees was, “wholly insufficient for them to make an intelligent response”
Consultation is notoriously fault-intolerant. 95% compliance with best practice standards may well not be good enough. Consultation co-ordinators and project managers will clearly need to get to know their Legal advisers better, but no-one wants the kind of litigious culture where genuine attempts at public dialogue inevitably result in court cases.
Instead, let’s learn from recent cases and treat this as a wake-up call to everyone organising public consultations - the stakes are suddenly higher
Trigger points
- Try to understand the true impact of recent decisions. Consider the Institute’s Seminar - on Legal Challenges to Public Consultations.
- Assess your vulnerability. Do you have issues over which disappointed consultees may seek judicial intervention?
- Overhaul your processes; ensure adequate budgets and management priority to avoid mistakes
This is the 79th 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