Should consultors ever respond to their own consultations?
Recently, the Institute was asked a very interesting question from one of our members. The question was as follows “Is it ever OK for a councillor to respond to their own consultation?” It’s a very interesting question and one that we have struggled to definitively get an answer to. Examining the law, the first thought was that of pre-determination, whether to respond to one’s own consultation was prima facie pre-determination of the issue, or at the least gave an appearance of pre-determination that might be sufficient to sustain a challenge in the courts. Unfortunately, the law on the distinction between the two is a little vague, last having come up in one of the Heathrow challenges, and regrettably having not being settled in the Supreme Court appeal to that case.
Perhaps then it is better to think of this in terms of the position of the councillor. There is, of course, a line between which decisions are made by the full council, and which are the decision of the council executive. This arose recently in the redux of R (Williams) v Caerphilly, which we wrote about here. In this case, one of the issues at dispute was whether the decision to implement a new sports strategy for a local council was one for the executive alone (as it had been done), or for the full council (as the claimants alleged it should have been. In this case, this was important as the latter would incur a far higher consultation standard than the former. In these circumstances the issue is not so much one of pre-determination, but of identifying who is the actual decision-maker.
Even under the above circumstances, however, there is not a total separation between the Cabinet and the rest of the Council. Councillors may, under certain circumstances, use the call-in procedure which can lead to the whole council determining whether the original decision should be upheld or whether it should be referred back to the decision-maker for reconsideration. A complicated net! Here at the Institute we still have some disagreements with which interpretation should be the priority. We’ll keep working on it, but in the meantime, we’d appreciate any of your thoughts. Send them to email@example.com