Pre-determination and pre-emption: making changes before a consultation
One fairly common accusation levelled at consultors in the media and in court is that of pre-determination. “The decision was already made!” campaigners will cry. We saw an example of this last week in this story where a change to the public sector pay exit cap drew threats of a legal challenge on the grounds that the decision would come into force a mere three days before the closure of submissions to the Ministry of Housing, Communities and Local Government consultation on bringing the local government pension scheme in line with the self-same cap.
It’s not the only place we’ve seen arguments such as this appearing recently. In last week’s Week in Parliament, I highlighted concerns in the Lords that the Government was making not insubstantial changes to planning regulations without consultation, and whilst the major Planning for the Future consultation was still ongoing.
Avoiding pre-determination is a key part of ensuring that you are Gunning One compliant- the consultation must come before the decision- the proposals, to put it in Gunning One’s terms, must be at a formative stage. Pre-determination cases most often arise where there is a consultation ongoing, but the consultor does not have an open mind to responses to the consultation because the mind has already been substantively made up. The archetypal legal case here is Partingdale Lane, where a consultation on re-opening a road was successfully challenged because the Councillor who had ordered the consultation had campaigned for it’s reopening and given a firm commitment to do so in his manifesto.
The forms of pre-determination we see here however, both in the case of the public sector exit cap and the planning regulations might perhaps belong to a sub-category of pre-determination that we might call pre-emption. Both involve a decision being taken contemporaneously with, or near contemporaneously with an ongoing consultation process that could either have significant impact on the decision, or could be significantly impacted by the decision.
There is a surprising paucity of cases that deal with this, perhaps because decision-makers are aware of the risks of accusations of pre-determination. One recent case that we did see involved an education review being undertaken by Somerset County Council in Crewkerne and Ilminster. Simultaneously to the education review (which involved a two-phase consultation process on reorganisation options), one of the schools under that jurisdiction applied to the South West Regional Schools Commissioner to become an academy. When that application was granted whilst the consultation process was still ongoing, the Council went to court alleging that the Commissioner had not had regard to the prejudicial impact her decision might have on the consultation process. The judge agreed with them.
This case was a prominent example of someone else’s consultation being pre-empted, and is perhaps best as a warning to be aware of the context of your actions. To the best of our knowledge there has never been a case brought by a claimant alleging that a decision taken by a public body was sufficiently related to an unconnected ongoing consultation by that same public body as to render the decision unlawful. Perhaps the public sector exit cap might prove our first example. It’s not impossible we may also see cases of this kind when we start seeing claims about temporary changes during covid-19 becoming permanent without immediate consultation. Either way, the need to be aware of not only not pre-determining your own consultation, but also of having a prejudicial impact on other consultations should not be underestimated.