We’re always interested when a consultation case comes up in the Scottish courts. It’s a rarer occurrence than it is in England and Wales, or even Northern Ireland. Partially this can be attributed to the Scottish usage of other forms of community engagement and involvement, such as the Integrated Joint Boards in the Health and care sector. But occasionally we do see a case come up. At the beginning of last year we saw McHattie v South Ayrshire, which we suggested was something of a wake-up call for public bodies in Scotland. Now we have seen another which may provide the most comprehensive statement of consultation law principles we’ve ever encountered in the Scottish Courts.

The case, Graham’s The Family Dairy and another v Scottish Ministers, emerged from the decision of the Scottish Government, after an adverse finding by the Court of Session, to ‘clarify’ planning policy which they believed had been misinterpreted by the court. In pursuit of this, they published a consultation document entitled “The Scottish Planning Policy and Housing- Technical Consultation on Proposed Policy Amendments”. This document, which the Scottish Government described as a ‘technical consultation’ to ‘clarify’ existing policy, would have removed certain presumptions, and altered the mechanisms for calculating Housing Land Supply. Ministers exempted the legislation from certain regulatory and business impact assessments, claiming that any amendments were “technical and procedural”, and would not have an influence on the outcome of planning decisions.

Several responses to the consultation, including that from Homes for Scotland, objected to the characterisation of the consultation. Homes for Scotland identified that some relevant stakeholders had concluded based on the ‘no impact’ assurances that it was of no relevance to them and not responded, and highlighted that far from having no impact, the resultant changes would have significant impacts on how planning decisions were made.

On 18^th December the Finalised Amendments were published, which summed up the changes to be made on the basis of not only the consultation, but also of a Housing Land Research paper which had not itself been consulted on and was not available at the time of the consultation. Claimants challenged the production of these finalised amendment on several grounds, including several that revolved around the consultation.

Firstly, they claimed that the consultation process had been inadequate because the consultation provided little evidence for the changes in either the consultation document or the assessments which asserted that there would be no impact. In addition, the reliance on the Housing Land Research paper in the final amendments had been improper, because although it provided supporting evidence for the changes, this information had not been available for consideration in the consultation and had not itself been consulted on- important as it contained controversial claims.

Additionally, they alleged that the claim that there would be no impact on future planning decisions was manifestly untrue and materially misleading. The changes would have a significant impact on planning decisions, indeed, this seemed to be one of the key drivers of the proposals after the preceding court case. By refusing to acknowledge this and claiming that the court had misinterpreted the policy (itself questionable as interpretation of the law is the job of courts and a court decision unless overturned by appeal is an authoritative statement of the law), Ministers had misled respondents.

Ministers responded by claiming that there was no evidence that stakeholders may not have properly been able to respond to the consultation, that it was legitimate to clarify the policy with amendments to the legislation, and that it was legitimate to conclude that there would be little to no impact. On the subject of the research paper, they suggested that it was legitimate to consider other external evidence, and claimants could identify no specific obligation to consult on the research paper.

On the consultation issues, Lord Clark found overwhelmingly for the claimants (though he rejected claimants other non-consultation arguments. He identified that the assertion of no impact had been based on a comparison between the proposed amended policy and the manner which the Government claimed applications had been approached before the court case that triggered the changes. The consultation however did not identify this and did not include consideration of the changes between the proposed amendments and future decisions- something that would certainly not have supported the ‘no impact’ assertion. Ministers should, the judge said, have highlighted the reasons for this conclusion, as without this explanation the ‘reasonable reader’ would have to take the erroneous ‘no impact’ assertion at face value.

He also levelled criticism at the lack of supporting evidence provided as part of the consultation. Although the Housing Land Research Paper laid out the evidence and reasoning that justified the proposed changes, this served to emphasise the absence of this information in the consultation. The fact that this paper had not been available at the time of the consultation did not justify proceeding with that consultation without that information being included. Although he refused to conclude that it entailed a fundamental change requiring re-consultation, he did rule that it demonstrated that the changes were far from being ‘clarification, technical or procedural’.

The case is again a salutary reminder to Scottish public bodies that the common law principles of the law of consultation will be applied to their consultations if they are challenged in court. It’s also a pointed assertion of the need to provide good and proper evidence for changes as part of the consultation, per Gunning 2, to enable respondents to give an intelligent response. Although the Government had received over 200 responses, with a wide range of perspectives, this was not in and of itself sufficient to make the consultation lawful, as it was impossible to know how they would have responded had they provided the required information.

It also provides an interesting restatement of the need for proper impact assessments, which might need to describe how you arrived at a conclusion, and no merely what that conclusion was. Here, the fact that Ministers did not outline how they arrived at the conclusion of ‘no impact’, was sufficient to render the consultation unlawful because respondents would otherwise have no way of accurately responding or may even have concluded that the consultation was not relevant to them and therefore not responded (as appeared to have happened here).

The final brief point we can take here is a reminder that the assessment that judges will always make in these cases is not merely whether a consultation under challenge is unfair, but whether it was sufficiently unfair to be unlawful. In this case, Lord Clark definitively stated that, taking the problems all together, it had been, and therefore the reduction (the Scots Law term for ‘annulment’, analogous to ‘quashing’ in English and Welsh Law) of the measures was justified.

To look at the consultation which was the subject of this legal challenge, go to the Institute’s MIDAS database or click here