Post-election consultations - Beware the newly-elected waving their ‘Mandates’; there are legal pitfalls!

This week Local Councillors and those who aspire to become ones will stand for election, and despite genuine concern about the state of our democracy, millions of us will exercise our right to vote. What happens afterwards? It has become fashionable to lament that power is illusive in a mature system such as ours. From Parish Councillors up to Cabinet Ministers, there is probably a shared experience that the ability to do things and achieve change is far more difficult in practice than they had hoped before office was attained. With the trappings of power comes the responsibilities of ‘due process’ and, in this, Governments of all shades have shackled their successors with demanding processes that stand in the way of implementing policies for which they may well have a mandate. Consultation is such a process.

The Courts are also heavily complicit in this. Let us take just two examples.

Back in 2003, the residents of Partingdale Lane took their local Council in Barnet to Court for seeking to re-open their road to through traffic. Some years ago the Council had closed it as part of a set of traffic improvements. A new Conservative administration replaced the previous Labour/LibDem control of the Council – and Councillor C, who had argued for a reversal of this decision, put it in his Manifesto and been elected. When he became the Portfolio-holder for the Environment, he took the decision to instruct officers to prepare and advertise the necessary traffic orders, and also carry out the necessary consultations. The Council lost its case, and this has become an established legal precedent on the subject of pre-determination – meaning that the consultation was unlawful because the decision had already been taken.

Around the same time, there had been a change of control in Leicester City Council. The new administration changed the policy on supporting certain voluntary and community bodies, wishing to focus their budgets on ‘core’ activities. When six charities who were to lose their funding sought a judicial review of its decision, the Judge ruled against the Council for having done too little to explain to the affected organisations exactly what it meant by ‘core’ activities (it emerged that this was the difference between meeting ‘statutory’ and ‘strategic’ objectives). The consultation was not lawful because Leicester hadn’t squared with those affected what exactly they had to do to avoid losing their funding.

What these cases show is that having a mandate is not enough.

In the first case, there was a legal requirement to consult, but in the second, it was just a common law right to fairness when public bodies take important decisions. In both cases, however, having a political mandate was insufficient to spare politicians from the worry of organising a valid public consultation. Judges have been consistent and strong – and they have said that Ministers must stick to the rules. When Michael Gove cancelled the Building Schools for the Future programme without adequate consultation with Councils, he lost his case. When the Department of Climate Change tried to implement reduced feed-in tariffs for solar panels without waiting for the consultation to finish, it also lost (three times!).

Of course we want political leaders with clear views and the ability to implement them, but we don’t do enough – at local levels at any rate – to help them understand the limitations of their roles. It may not be enough for the Head of Legal Services to scare them with stories such as those above. Someone who understands the political process needs to point out that consultation is not just a bureaucratic encumbrance – it is an effective mechanism that prevents public bodies from making serious mistakes. It enhances decision-making; it ensures that proposals are properly thought-through; and it shows them in a ‘listening’ mode – something citizens always say they want.

All newly-elected Councillors need training, and no doubt officers in most Councils are already planning a range of familiarisation sessions. They should also include Briefings on public engagement, covering (for England at any rate) • the changing dynamics of Localism, • the changes in accountability for Police and Health • the law of consultation, • the techniques of citizen dialogues • the impact of social media Without careful guidance, elected politicians run the risk of relying too much on a popular mandate, and counter-intuitive as this may be, they will do better to recognise the modern truth – that we live in a transparent consultative culture, and it is better to become good at it!

Trigger Points

• If you are a local authority, how comprehensively will you be training new and re-elected Councillors?
• Does your Councillor training deal adequately with public engagement?
• he cases mentioned above are:- • R (ex parte Partingdale Lane Residents Association) v Barnet London Borough Council [2003] EWHC 947 • R (ex parte Capenhurst) v Leicester City Council [2004] EWHC 2124 • R (ex parte Luton BC & Nottingham CC, Waltham Forest LB, Newham LB, Kent, Sandwell) v Secretary of State for Education [2011] EWHC 217

This is the 211th 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