Rhion Jones comments:

We asked Barry Creasy, a Senior tCI Associate, to comment on last month’s High Court Judgment in the case of Derbyshire v Sheffield Combined Authority. This is because it largely turns on the wording of the consultation question. Barry trains our members and others in Consultation surveys and questionnaires and his views will, I am sure, be of widespread interest.

Introduction and background

In November 2016, the consultation above was brought to Judicial Review on the application of Derbyshire County Council.

Although the names involved are lengthy, the case was a simple one. The Combined Authority wished to expand, and draw in other, smaller local authorities, principally Bassetlaw District Council (currently within Nottinghamshire) and Chesterfield Borough Council (currently within Derbyshire) – completely allowable under the terms of the 2009 Local Democracy, Economic Development and Construction Act and the 2016 Cities and Local Government Devolution Act. The terms of the latter Act, however, require a consultation to be undertaken by the Secretary of State before such mergers can take place; the Secretary of State need not consult provided:

1. a scheme has been prepared and published.
2. the authorities that prepared and published the scheme carried out a public consultation in connection with the proposals in the scheme and provided the Secretary of State with a summary of the consultation responses, and
3. the Secretary of State considers that no further consultation is necessary.

In this case, the Combined Authority had carried out a consultation in July and August 2016, but Derbyshire County Council felt that it had not been adequate (in particular, they believed that citizens in Chesterfield had not been consulted sufficiently) and applied for a Judicial Review on several grounds.

The Judicial Review

The grounds for review included challenges on the breadth of the consultation, on its fairness, on the means used to consult, and on the complexity of the information surrounding transfer of powers. Some of these issues will be dealt with in another tCI paper, but suffice it to say, Mr Justice Ouseley accepted only one of the grounds for challenge (albeit that, in connection with some of the others, he acknowledged that under the terms of the Act, the Secretary of State might decide that further consultation would be necessary), which I will discuss below.

Nowhere in the consultation questionnaire (aimed at ordinary citizens) was there a question that specifically asked whether Chesterfield Borough Council should be part of the Combined Authority; respondents were asked whether they agreed or disagreed “that local authorities should work together formally where there are strong economic links with neighbouring areas.”, but Chesterfield was not specifically mentioned (presumably, neither was Bassetlaw, but this was not part of the challenge). In his consideration of this, Mr Justice Ouseley made the following statement:

“For a consultation to be lawful, if questions are asked, they must be ones which can be properly understood by the general body of consultees and can therefore generate answers which the consulting body can properly understand in its decision-making process. The question is clear enough as to what it asks, but it is equally clear that some respondents thought that it must have been driving at something else. I find it difficult to see what value it had, but it was not an unlawful question. The real point to my mind is that it cannot stand for a question asking whether the Combined Authority should be extended.”

Discussion

Mr Justice Ouseley’s judgement raises several interesting points.

This is, as far as we can tell, the first time a Judicial Review has failed a consultation on the basis of the wording of a question in a public questionnaire, and it sets a significant precedent for those of us involved in writing questionnaires and ensuring that their wording is correct.

One of the areas I spend a lot of time on in my questionnaire courses is ensuring that those writing the questionnaire ‘inhabit’ the world of the respondents and not their own world. The questions asked should be framed so that the respondents can understand them – and that there is no ambiguity – but also, they should be the questions that the respondents wish to answer, and Mr Justice Ouseley’s words above strongly reinforce this point.

It is not clear (and we will probably never know) whether the Combined Authority were unaware of the disjunction between their mindset (they may have thought the wording clear enough as a prompt for those wishing to comment on Chesterfield’s inclusion) and that of their consultees, or whether the question was deliberately vague.

If it was the latter, it is understandable – in our current referendum-haunted world – why politicians might wish to avoid anything that remotely resembled a vote, but it does not excuse their actions. The Consultation Institute’s long-promulgated wisdom on this point is clear: consultation is not a vote. Consultation is a means of informing a decision, but it is not the decision itself, and numbers do not necessarily win the day. Ultimately, decision-making at this level is always a political act; decision-makers must stand by their duty to make decisions – it is what we elect them and pay them for – and it is for them to make a transparent case for the decisions they take, even if they seem to be running contrary to ‘the will of the people’. Consultation should be – as the Consultation Charter clearly states – a transparent process, and should not be used to fudge an unpalatable answer.