Consultation in court- the cases of 2020
At the beginning of December last year, the Institute hosted a Wednesday Wisdom session looking at the consultation related legal cases of 2020. As it’s the beginning of the new year we thought we’d provide a quick summary for those who couldn’t make the Wednesday Wisdom. Out of necessity this will be less detailed- for those who wish to see more detail, the WW is still available as a recording in the Member’s area of the website.
After some doubt as to how coronavirus would impact the legal treatment of consultations, guidance was delivered via a trio of cases all arguing, in various manners, lack of consultation. The first two, Shaw and Article 39 both dealt with temporary changes to regulations to ease burdens on local authorities, in Shaw relating to SEND provision, in Article 39 to youth social care and adoption regulations. The third (Rights:Community:Action) related to the introduction of new permitted development rights. The most important of the three was Article 39, which went to the Court of Appeal.
The Court of Appeal determined that although the Government could conduct a less formal or more truncated consultation than would usually do, they still had to have regard to all the usual consultation principles- if a consultation process took place, it had to take place properly. The shortened time period may have been necessary and justifiable under the circumstances, but it should still be done as far as possible in line with usual processes, and departures should be well justified.
We also saw two very important healthcare cases in the form of Nettleship and Keppel. Nettleship, a challenge to plans to move some clinical services from South Tyneside to Sunderland, gave us the first authority on s.14Z2 of the NHS Act 2006. This long-awaited judicial treatment drew distinctions between the s.14Z2 ‘duty to involve’ and a more general ‘duty to consult. Judges commented that the duty to involve required more than mere consultation and should involve stakeholders in the development of proposals.
Keppel also involved a first, with an examination of s.14T of the same Act. 14T imposes a duty on the NHS to reduce health inequalities. The situation in question involved plans to centralise stroke services in Kent, which would have closed the stroke unit in Thanet, an area with increased risk of stroke and high instances of poor health. The Court rejected the argument that the NHS should have attempted positive discrimination and found against the limited ideas of reducing health inequalities advanced by the claimant.
Another area where we saw a few cases this year was in education. Probably the most prominent case was the long and complicated Bloomsbury Institute v Office for Students. Bloomsbury challenged the decision not to register them as an education provider, a decision made on the basis of certain criteria determined using unpublished (and un-consulted upon) internal decision-making guidance. Although their challenge failed in the High Court, they succeeded at appeal, with the Court deciding that although the criterion they had failed on was not one that would affect many people, it was not just another hurdle to be jumped, and should have been consulted upon.
In the summer, we saw Somerset County Council taking the Secretary of State for Education to court, because one of their consultations had been pre-empted and prejudiced by an approval of an academy application. The judge found for the Council, reminding us of the importance of knowing the context of the decisions we take.
The other two education cases came to us from Wales and Scotland. In Perth and Kinross Council, ministers’ call-in of a school closure was challenged on grounds of the inadequacy of reasons, a challenge rejected on the basis that the consultation on closing the school had shown significant inaccuracies, and the Council could not demonstrate that they had followed their statutory duties.
Finally, in Wales, we saw Driver, a challenge to school reorganisations in Pontypridd which would have led to the closure of Welsh-medium primary schools and a lack of sixth form provision. The challenge was brought on several grounds, both consultation and language related, ultimately falling in favour of the claimants. Although very subject specific, it is a reminder to consider the possible knock-on effects of decisions. It also provided a pertinent memo to consultors in Wales to be aware of any linguistic obligations you may have.*
The two education cases were not the only cases from other UK jurisdictions. At the beginning of the year, there was a salient reminder of the enforceability of public consultation in the Scottish Courts, with McHattie, a case revolving around the closing of the Kyle Centre, an adult day centre in Ayr. Although in principle a relatively straightforward case, there were challenges, including working out when exactly the decision had been made. Ultimately, the Judge found for the claimants, reminding the Council of their obligation to perform specific equalities impact analyses for proposals.
In Northern Ireland, Patrick Lynch challenged the Boundary Commission of Northern Ireland’s review of Parliamentary constituencies. Although extensively consulted upon, Lynch claimed that the Commission had erected barriers to participation between the first and second consultations, largely by refusing to accept any major change suggestions in the second consultation. The Judge agreed. There should be, he said, no hierarchy of responses, and it was unlawful to say that no major alterations to the plans would be accepted.
The final case to look at was a curious one, not so much about the process of consultation, but illustrative of the importance and place of consultation in the policy and decision-making process. For a long time, there has been a campaign to get a ‘Sikh’ ethnicity checkbox on the census. Part of this involved responding to the ONS consultation process. When the decision was taken not to include this tickbox on the 2021 Census, Gill challenged that the ONS had failed to observe its own processes. After hearing the arguments, the judge rejected Gill’s argument, but admitted that the process had been somewhat confusing.
That was the legal year in 2020. In 2021, we’ve already seen one interesting case in Glatter that might build on Nettleship and Keppel, and we’re only in the first fortnight. Keep an eye on the website for our updates.
*Driver was subsequently appealed, but not on any of the consultation-related grounds