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Shut out of a consultation that mattered to YOU?

The British Blind and Shutter Association case

Imagine you are a trade association and you suddenly discover that a Government department had published Regulations that made it unlawful to sell some of your products. You might have concerns! Especially when the relevant statute had specifically instructed the Minister to consult you. Then imagine that you find that there had in fact been a public consultation, but it had been so misleadingly labelled, and the proposal so obscurely described that no-one in your organisation had realised that it posed a threat to your members’ business. So you never responded.

This is what happened in the case of R (British Blind & Shutter Association) v Secretary of State for Communities & Local Government [2019] EWHC 3162. The judgment was published in late November and maybe has not received the attention it deserves, for the Court ruled that the Department had failed to consult properly. It has lessons for Ministers and civil servants in too much of a hurry. It also serves as a timely reminder for stakeholder organisations of all kinds to be watchful in monitoring policy issues and consultations that might affect their interests.

The case arises from the aftermath of the Grenfell Towers fire, and new Building Regulations that had the effect of banning the use of external shutters, awnings and blinds in high-rise buildings. Making regulations of this kind are governed by long-standing legislation in the 1984 Building Act. It provides that

“Before making any building regulations containing substantive requirements, the Secretary of State shall consult the Building Regulations Advisory Committee for England and such other bodies as appear to him to be representative of the interests concerned.” (our underlining)

In any event, the Government’s own Consultation Principles provided Guidance as follows.

“Consider the full range of people, business and voluntary bodies affected by the policy, and whether representative groups exist. Consider targeting specific groups if appropriate. Ensure they are aware of the consultation and can access it. …”      

    (Principle F “Consultations should be targeted”)

It seems all were agreed that the BBSA was an appropriate body and that the duty to consult did, in fact, apply. The Government’s case, however, was that it had gone beyond the statutory requirement and conducted a full public consultation – and that this obviated the obligation to notify and consult the claimant individually. Mrs Justice Steyn disagreed and in so doing re-inforced an old 1972 case (The “Aylesbury Mushrooms” case) which had stressed that posting a letter inviting a consultee to participate was not enough to prove consultation. Consultors clearly must do more.

Despite this, the Association did, in fact, see the consultation. It looked at the title. It was Banning the use of combustible materials in the external walls of high-rise residential buildings. The key phrase is external walls; for this excludes the products supplied by the BBSA’s members. One of the questions posed the possibility that a ban could have extended beyond the proposed definition and cover window spandrels, balconies and brise soleil (sunshades). Nowhere did it mention shutters, blinds or awnings.

The Judge reached for the much-quoted (e.g. in Moseley v Haringey) words of Lord Wolf MR, describing the Second Gunning Principle as an obligation to let consultees know

what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.

This consultation had failed that test. It had not explained itself well enough, and the BBSA had not been unreasonable in concluding that it was not directly relevant.

The result of this case may give other stakeholder bodies some comfort that a Court may be sympathetic if they are caught out and miss a consultation that subsequently affects them. This would be unwise. The Department had clearly been negligent and failed to observe best practice in a number of ways. Yet the Association will seem to many people to have been asleep at the wheel. Surely anything relating to the post-Grenfell review of building materials might have been of interest to it?

The practical lesson of this case is that at a time when umpteen processes, regulations and standards will be re-written in a post-EU Britain, representative organisations in both the civic and commercial environments will need to have their antennae well-tuned to the rapid evolution of policy. This means anticipating consultations, participating in consultations and monitoring the impact of consultations on subsequent decisions. Those who understand consultations best and who know how to leverage them to advance their arguments will be more successful.

That is where the Institute can help!

This case will be specifically covered at the next Law of Consultation course in June.

About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

Read more about Rhion

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