Public servants, be they local government officers, NHS Managers or departmental civil servants enter 2019 facing an even tighter set of legal rules affecting the Law of Consultation.

Decision-makers similarly need to be conscious that judicial interventions to quash or postpone their actions are at an all-time high. In short, 2018 brought a range of High Court judgments that have serious implications for those who organise and act upon public consultations.

In a rush of judicial blood, this summer saw a succession of judgments, the impact of which will require public bodies to be ultra-careful of the way the prepare for and manage public engagement. Three judgments ruled decisions as ‘irrational’ – very rarely found in recent years. The stakes are therefore high for any organisation seeking to take controversial decisions against opposition from those who believe a consultation was flawed.  We still await judgments on important cases – including a landmark planning case in Northern Ireland that may determine the minimum standards required for a pre-application consultation. But in the meantime, here are three important 2018 cases that will have an impact upon almost everybody in public engagement.

R (ex parte Kohler) v Mayor’s Office for Policing & Crime (MOPAC)

…where the Mayor’s consultation on proposals to close police counters faced a challenge and Professor Kohler won his case to quash to decision to close Wimbledon police station. The Court ruled that the decision-maker had not read or considered a material argument advanced by Prof. Kohler in his consultee response. It raises the question of how diligent data analysts should be in identifying consultee responses that need to be drawn to the attention of decision-makers – whether by reason of their status or the nature of their arguments.

R (ex parte KE,IE,CH) v Bristol City Council

…one of several cases on cuts to budgets for special educational needs (SEN). The Council argued that there was no need for consultation at the time of the overall budget allocations, but only at the point where implementation required specific service-related decisions. The claimants won, because they had a legitimate expectation for consultation, and the Council had failed in its obligation at the same time to enquire about the likely impacts re the Public Sector Equality Duty. For Councils it raises the thorny issue of how much consultation is required at the point of deciding the shape of the budget (cf its substance).

R (ex parte The Law Society) v The Lord Chancellor

…where the Law Society successfully argued that a decision to make further cuts to criminal legal aid was based upon a statistically flawed methodology which the Ministry of Justice failed to disclose to consultees. It led to a new set of criteria (the Leggatt/Carr Factors) as to when methodologies need to be disclosed. We believe the most important of these is the consultee prejudice test, and in this particular case, the Law Society could show that its ability to comment upon and respond to the Ministry’s proposals was seriously prejudiced by the non-disclosure.

For many organisations (for example, the NHS in respect of bed closures in hospital reconfigurations) it raises the question of how much detail to publish in a consultation paper.

Other cases in 2018 may appear to relax the burden on hard-pressed consultors. Highways England, for example may breathe a sigh of relief at the recent judgment in the Sefton tunnel row. The Arundel by-pass challenge fizzled out, and Christchurch Council failed to win its case that consultation on its amalgamation into a bigger local authority was flawed.  Moreover, campaigners fighting to retain services at Horton hospital are still disappointed at having lost their legal challenge this time last year.

But we also know of many other cases in the pipeline that confirm that judicial reviews are still the favoured tactic of challenge when campaigners and communities wish to challenge decisions they dislike.

Individual judgments rarely, on their own, affect practitioners directly, but taken together they can have a major impact upon best practice. That is why our Law of Consultation course seeks to place them in this wider context. For 2019, the course has been further amended (Version 26!) to take account of almost a dozen cases from this year that are of significance.