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Consultation flaws in a School amalgamation case – important lessons for phased projects

Earlier this summer Denbighshire County Council faced a legal challenge on its plan to merge two schools in the Ruthin area in North Wales. One of the interesting features of the case – which was partly argued in the Welsh language – was that it emerged that the Welsh translation of the consultation paper differed in some important respects from the English version – to the extent of confusing the issue sufficiently as to render the exercise unlawful!  We wonder whether there may be lessons here for our Brexit negotiators, who will, no doubt wish to ensure that a French translation of their proposals will be quite the same as the English one!

However, we digress. The heart of the case was that in merging a Welsh language medium school with a nearby dual stream school (where teaching in the Welsh language and English exist side-by-side), there were fears by language campaigners that the use of Welsh would diminish – particularly outside the classroom (eg in the playground). Impact Assessments were needed under the Welsh Government’s regulations, but had only been conducted for the first phase of a two-stage plan.

Under the first phase, the two schools would merge to become one school with common leadership and staff, but remain on their existing sites until a new greenfield site became available for the erection of a new replacement, amalgamated school. That would be Phase Two, and the case turned upon whether the scope of the public consultation extended to the full plan, or was confined to the First phase – which happened to be the only phase for which the Impact assessment had been prepared. The Council had tied itself in knots and published a consultation paper which confused many people; the translation issue compounded the problem. The lack of clarity was undeniable and the claimants succeeded in the Judicial Review.

The case raises a classical problem faced regularly by the NHS, local authorities and many other public bodies. When they are pursuing a long-term multi-phase programme of service changes, they are often obliged to consult piecemeal – one stage at a time and any uncertainties surrounding the subsequent phases makes it difficult to give consultees the clarity that might enable them to exercise ‘intelligent consideration’  – Per GUNNING 2.

The Institute advises consultors to take great care that statements made in the consultation are not misleading and always to paint as truthful and realistic picture of what is likely to happen in later phases of the same programme of change. If there are doubts and uncertainties, it is always best to come clean about those issues. If over-optimistic assumptions are made, for example on funding which then fails to materialise, and if consultees respond having believed the assertions in the consultation paper, disillusion and mistrust will surely follow. Phased consultations need serious thought!

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