Last Friday’s judgment in the case of Kohler v MOPAC has rightly prompted considerable discussion. Our Briefing Note has certainly added to the degree of interest.

A popular reaction is that Judges cannot possibly be serious in suggesting that decision-makers should read the submission of a particular consultee. Yet that is what they appeared to be saying, particularly through their concentration on whether or not the Deputy-Mayor, Sophie Linden had in fact read Mr Kohler’s response to the consultation. There has also been comment to the effect that the fact that Mr Kohler wrote his submission on behalf of Merton Liberal Democrats is either a coincidence or of no real importance. And if that is true, then maybe we are wrong to see in this the issue of whether political parties merit any greater priority in the consideration phase of a consultation.

Time will tell if the Courts will follow this precedent or whether the case will be regarded as an outlier – determined on a specific set of untypical facts. In the meantime, however, there are several points to note:-

• The issue was a very high-profile one for London. Everyone is a stakeholder and matters of crime and anti-social behaviour is high on the list of citizen concerns.
• The Metropolitan Police has a long tradition of public engagement that has waxed and waned over the years, with neighbourhood policing at one time seeming to make a real difference. Austerity cuts and Mayoral responsibility have, however, left the current approach in some confusion.
• One of their mistakes was to combine a genuine consultation on the future of pubic engagement with the withdrawal of counter services, and the latter was a mess. The weaknesses of the consultation paper were pretty obvious, and it was clear that someone somewhere would challenge it – probably on the grounds of pre-determination.
• What actually happened is that the strongest available claimant was Professor Kohler – whose challenge was NOT about the whole programme of closures – but about one specific Police Station – in Wimbledon.
• To help make his case, Kohler naturally signposted the Court towards the inadequacies of the consultation – but none of these were as powerful as the assertion that the decision had ignored a major argument in favour of delay. Failure to show that Linden had considered this ‘material point’ was enough to lose MOPAC the case.
• It is perfectly possible that the Judges would have decided similarly if the argument had been put forward to others. We have no way of knowing for no evidence was produced on that point. Instead we are left to wonder if the status of the respondent has anything to do with it.

Our case, however is that there are far too many consultations that may be technically sound, (this one wasn’t) but are politically naïve. Whoever summarised the submissions clearly failed to pick up the ‘material’ argument or that a political party had made a submission. On such a sensitive subject, decision-makers need to anticipate how the subject will play out politically. Whether the judgment is a sign that Judges are more alive to this than decision-makers, or whether this was a one-off, remains to be seen.