We’re all familiar with the basic principles of consultation. Public bodies, in certain circumstances, are required to consult their populations on policy changes. These consultations must be conducted lawfully, in line with statute, the Gunning principles and other common law requirements. The case law is by now very extensive, and not doing so can be a significant risk to not only the public body’s wallet, but also the trust that good consultation and engagement builds up with their communities. There’s one body however that doesn’t have the same requirements. The UK Parliament.

It’s not quite true to say that the rules entirely don’t apply. We see consultations from the Government being presented to Parliament all the time, and these often are held to be subject to the common law. But this doesn’t apply to all consultations. Recently, we’ve seen two court cases which have discussed the issue. The first was the police pensions case that we previously reported on, and subsequently did a Briefing Paper dissecting, and the second was a High Court challenge to the consultation before the Nationality and Borders Bill.

We’ve written about the second one before, both the consultation and the case, but the judgment reinforces the position taken in previous cases, that although consultations on general policy matters and secondary legislation may be challenged in the courts, challenges to consultations that directly go to primary legislation are more-or-less doomed to fail.

Why is this? It’s because of two key principles core to the British constitution. The first is the principle of parliamentary sovereignty. This principle holds that Parliament is the supreme legal authority in the UK. It can (in principle) pass, amend, or repeal any law that it sees fit. The way it’s (slightly hyperbolically) taught in jurisprudence classes is that if Parliament wanted to pass a law mandating the immediate death of all blue-eyed babies, then there is nothing that would stop it from doing so, and that law would be as valid as any other.

The second principle is that of the separation of powers. This is the principle that the chief institutions of the state (the executive, the legislature and the judiciary) should have clear divisions between them to guard against tyranny and protect civil liberties. A judge, for example, should not simultaneously serve as a parliamentarian. In the UK, we have what is sometimes termed a ‘limited’ separation of powers, in that members of the Government (the executive) also sit as members of Parliament (the legislature). Until relatively recently, the Lord Chancellor and Justice Secretary served in all three branches. He (and back then it was always a he) served as a Government Minister, a Parliamentarian and a judge. This contrasts with systems with full separation of powers like the US, where the President and his cabinet cannot serve simultaneously as judges or legislators.

So how do these two things apply in this situation? The difference is in what consultations seek to achieve, and who is acting to take action. In the case of consultations on general policy, these generally don’t have an immediate effect on any legislation, so they don’t interfere with the workings of Parliament at all, unless a Government decides to legislate, at which point we might expect a more specific consultation. As there is no interference with the parliamentary process, the Courts can examine them and make decisions on their legality.

In the case of consultations on secondary legislation, this is legislation that’s delegated to ministers. Again, there is limited parliamentary involvement here, and these orders, regulations and statutory instruments are not amendable by Parliament. If Parliament disagrees, it has to vote it down. They must conform with existing primary legislation and common law- so it’s legitimate for the Courts to opine on the procedures and processes that lead to them.

Consultations on primary legislation, or matters due to go into primary legislation is different. The form of primary legislation, its purpose and its design are solely a matter for Parliament. They are not required to comply with any other law, because by definition they are the highest form of law. The court therefore cannot rule on their lawfulness- if Parliament declares in an Act of Parliament that something is law, then it is. The principle applies also to the process that leads to a bill. In the same way a court cannot rule on the lawfulness of primary legislation (or proposed primary legislation), for them to rule that the process that led to it was unlawful would be to impugn the offending clause of the bill. That is a role that due the separation of powers principle, the Court cannot fulfil, because it would invite them to act as legislators.

It’s an interesting scenario, and one that possibly helps to explain why we don’t have an extensive tradition of pre-legislative engagement in the UK as a whole (though the devolved administrations are a different matter). It is however an interesting gap, that there is no specific obligation to consult on primary legislation, and no way to hold the Government to account in law if they chose to consult but do so badly. It’s one of the reasons it’s so important that politicians (particularly parliamentarians) should understand not only why consultation is important, but also what a good consultation or a bad one actually looks like. With the courts effectively neutered, they are the only gatekeepers between the public and a great injustice.

We’ve been becoming more interested in the process and principles of pre-legislative engagement, even having an interesting discussion with one of our Moldovan guests on our trip to Bristol on Wednesday, so we’ve already been doing some research in the area. Once we’ve finished it, keep an eye out for a briefing paper on the subject- it might prove to be very interesting.