COVID-19 lowered expectations… but signposts the end of ‘pick and choose’ consultations
It was bound to happen.
Amongst the frenetic days of lockdown in March, Ministers took decisions so quickly that consultation was neglected in the race to make or amend new laws and regulations.
The case that went to Court was by Article 39, the children’s right charity. It argued that the Adoption and Children (Coronavirus) Amendment Regulations 2020 were unlawful – in part because of an inadequate consultation.
The Regulations were introduced because the Government realised that expected shortages of social workers forecast as arising from the pandemic in England, would compromise Councils’ abilities to fulfil all their statutory requirements for the care of vulnerable children. A total of 65 relaxations were made, 7 of which Article 39 claimed had potentially serious consequences for looked-after children. One example was suspending the timeframes for social care workers to visit children being supervised by an ‘unconnected person’. Mrs Justice Lieven accepted that this, and the other relaxations, amounted to a real withdrawal of safeguarding measures, and not just easing bureaucratic burdens – as portrayed by Ministers and their spin-doctors.
There HAD been consultation – albeit, informal and confidential. Selected local authorities, Ofsted and other internal stakeholders had been consulted. The Children’s Commissioner, had, however merely been ‘told’; all the well-known children’s rights bodies were wholly excluded from the dialogue.
Was this consultation lawful?
Yes, because the Court accepted the special circumstances of the pandemic had to be taken into account. The claimant had not relied upon the ‘legitimate expectation’ of consultation but had it done so, it might not have helped, as the Judge made it clear:
“A legitimate expectation that arose in normal circumstances would not give a right to consultation in the circumstances of dealing with the pandemic in Spring 2020.”
So much sounds reasonable
But the really interesting aspect of the case is whether the consultation would have been lawful had there not been a public health emergency?
One of the relevant statutory provisions required that when making changes to regulations, “…the appropriate Minister shall consult any persons he considers appropriate …” This is a time-honoured formula – long criticised by the Institute as it allows the consultor to pick and choose ‘his’ (notice the continued use of sexist assumptions) consultees. It is anachronistic; it is unfair and potentially a get-out-of-jail card for policy-makers who do not care to hear contradictory advice. It does not, however, breach the four Gunning Principles, and in The Politics of Consultation, we have noted the need for a fifth Gunning Principle – namely to consult the right people. (We also cover this in the Law of Consultation Online course – just launched).
In this instance, the Government’s focus was clearly on the providers of the service. It had not concerned itself with the recipients of the service and had assumed that Directors of Social Services within the delivery process would have had their welfare sufficiently in mind. In this respect, the Minister was perfectly in order, the statute entitled him to choose those he considered “appropriate.”
But in a string of cases including the Supreme Court in Moseley v LB of Haringey, the Courts are drifting towards a concept of fair consultation that is highly context-specific. Judges are increasingly willing to intervene to ensure that certain consultees are heard. A good example is the Blind & Shutter case in 2019, where the new post-Grenfell Towers cladding regulations had required consultation with “such other bodies as appear to him to be representative of the interests concerned.” The excluded Trade Association won its case.
Possibly the most significant sentences in Mrs Justice Lieven’s judgment read:
“In normal circumstances, there can be no possible doubt that the Defendant would have had to ensure that he was consulting a range of people in order to ensure that he was getting a full answer to the question posed.”
“In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted.”
Judicial clarification would be really welcome, but it does involve using the common law to overwrite the historic formula that enables consultors to listen only to those they chose. Sadly, one cannot always rush to Court to plead for an invitation to participate. We need some other mechanism to ensure that all the right voices are heard. This is part of the case for an Independent Office of Public Engagement – a little like the ‘Office of Budget Responsibility’ or ‘Office of National Statistics’, somewhere to provide confidence in the probity or integrity of important public functions like engagement and consultation.
That may be some time away, but despite its failure to prove this particular pandemic regulations unlawful, Article 39 may well have served the rest of us well by enabling a newly-appointed and highly regarded High Court Judge to provide a valuable steer for the Law of Consultation to respond to the all-important question of who gets consulted.
Rhion H Jones LL.B
12 August 2020
NOTE This is a new High Court case (August 2020) and is therefore not included in the Law of Consultation online e-learning course. But almost 70 cases ARE included! Order here