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Councils in crisis – consult more, not less

Lessons from the Northants County Libraries judicial review.

Rumour has it that there are several councils in danger of following Northamptonshire towards a similar financial plight. If so, they need to pay attention for the High Court has ruled against Northants’ decision to make cuts in its Libraries provision. A cash crisis evidently does not excuse councils of their duties under the Law of Consultation.

What happened here is that the County Council prepared options for rationalising its Libraries at the end of 2017. Its consultation was, according to the Court, perfectly acceptable, as was a decision taken by the Cabinet to support a ‘least worst’ option subject to further studies. What went wrong is that a few days afterwards there came a S. 114(3) notice under the Local Government and Finance Act 1988. It meant that the full Council meeting a week later reversed the decision and adopted a different option that might save more money.

Unfortunately, at that point the Council had no clear view of the true implications of the switch to the second option. Neither had it been able to consider the outcome of the further work that the Cabinet had identified as being necessary when it took its first decision. Part of this was because some of the Libraries were co-located with grant-aided children’s centres and closures involved potential grant claw back. Subsequently promising to hold a further consultation on those children’s centres did not correct the mistake of having been unaware of the impacts when the decision to close was actually taken.

A similar conclusion arises in respect of the challenge claimants issued in respect of Section 7 of the Public Libraries and Museums Act 1964. This prescribes the statutory requirements for the service, and councils everywhere should heed the words of Mrs Justice Yip, as follows: –

“The result was that the executive decision to close libraries appears to have been taken without balancing the statutory duty against the financial pressures. The Cabinet cannot be criticised for being motivated by financial concerns. However, finances could not be the sole consideration. The Cabinet still had to be satisfied that they were complying with their legal duties. On the evidence before me, I am not satisfied that they appreciated what they had to decide. (at Paragraph 88)

Irrespective of the legal niceties, the practical issues raised by this are serious:

  1. Under what circumstances can public bodies amend their decisions following a consultation and what are the processes they should follow when they do so?
  2. If you agree that further study is required following consideration of consultation responses, are there consequences were you not to be able to undertake those studies?
  3. During the consideration period, what steps need to be taken to demonstrate that, in addition to taking account of consultee responses, there is also a proper assessment of statutory requirements?

This is the second important case affecting local government budget consultations within days. The other is the judgment on 3rd August in the in the Bristol City Council case where the Special Educational Needs (SEN) budget reductions were ruled unlawful.

Is it maybe time for Councils everywhere to re-think their Budget consultation practices and ensure they will not fall into some of the traps which ensnared Northamptonshire and Bristol. The upshot will almost certainly be that Councils facing financial turbulence may have to consult more – not less.

As always, Institute members are welcome to call our office to discuss the potential implications…

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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