There’s an old stock market adage: – ‘Sell in May… and go away…”

These days we can replace it with – ‘Challenge a consultation in June/July, and hear the outcome in August…’ How else can we explain the spate of judgments handed down in the last three weeks – and holding enormous significance for anyone organising public consultations in the UK?

For the record, the Institute has monitored four key cases:-

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. This has been fully discussed in Briefing Note 21.

R (Buckingham) v NHS Corby Clinical Commissioning Group

… where the CCG’s plan to convert an Urgent Care Centre into a Same-day Access Centre was challenged on the grounds of inadequate consultation. In fact, despite repeated promises, the CCG cancelled its planned consultation, wrongly stated that NHS England agreed with its failure, and claimed that the public had been consulted. It lost a case that should never have been fought, as campaigners had every right to be consulted. See our commentary.

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. In many ways this is an extraordinary case including coruscating criticism of the Government by Judges. “It is difficult to express in language of appropriate moderation why we consider these arguments (ie by the Min of Justice) without merit ….” Wow! A full Institute commentary is under preparation.

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

… where children with special educational needs (SEN) challenged the Council’s failure to consult on significant cuts to the service. 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. A full Institute commentary will be published in due course.

There are other imminent cases where judgments are expected soon, and although it is early to draw many conclusions from this year’s cases, there are clear signals that the Courts continue to hold public bodies to account if they breach key principles of the Law of Consultation.

Two other points to note.

•  It is very rare for claimants to win an argument on ‘irrationality’. Yet in both the Law Society and the Bristol cases, this happened … both in judgments handed down on 3rd August!
•  Defendants are now regularly claiming that even if they have breached common law or statutory duties to consult, that no remedy should be offered on the grounds that such failures would probably not have made any difference to the eventual decisions. Happily, the Judges are having none of this as they rightly perceive that if a consultation was truly genuine, there would have to be conscientious consideration, and if that were to happen, who can possibly be certain of the outcome?

These and other cases will, as always, be incorporated into the Institute’s Law of Consultation course.

Watch out too for the next edition of our Latest Law video updating service – available in early September. Watch our current Latest Law here.