Introducing the Leggatt/Carr considerations

For years, consultors have known that in their documentation, they must publish enough information so that consultees know enough to give the proposals ‘intelligent consideration’.

It has always been a fine judgement. Say too much and you get pilloried for too much information. Say too little and you risk losing a legal challenge for this ‘Gunning Two’ rule.

Deliberate withholding of information is rare, but it does happen. A judge at a recent Judicial Review concerning the National Health Service could not contain his exasperation: “It is a mystery to me why that data was not supplied sooner”  he said.

Two recent cases have highlighted the need for transparency in the methods or formulae used to calculate key numbers. Both involved the Ministry of Justice and Ministerial attempts to make changes to the legal aid scheme. This August, the Law Society won a notable case when it challenged the basis upon which cuts in fees were proposed for defence lawyers. The settled formula reflected the number of documents they were required to examine, and the Government proposed to make changes because they argued that a recent Court case had widened the definition to include more electronic documents – ie emails, phone messages etc. The intention was to use a fee reduction claw-back the excess costs they believed to have resulted from that Court case. Unfortunately, it did not disclose the underlying arithmetic and when the details became visible to the Law Society – after the consultation had finished, expert evidence was presented that pointed to clear and fatal flaws in the methodology. Failure to disclose this made the decision unlawful.

Two months earlier, the Federation of Law Centres had challenged changes to another legal aid scheme. It questioned the Government’s assumption that fewer contracts would make the scheme more sustainable. This was not a failure to disclose the arithmetic for there had been very little of that. Indeed, the proposal was more anecdote-based rather than evidence-based!

In both these cases, it seems clear that consultees should have been told more, but for many organisations, this is a grey area. In the latter case, defence; lawyers argued that the target consultees were a well-informed a sophisticated group and that it was unnecessary to spell out all the details – they could be ‘inferred.’ The Judge totally rejected this argument.

More helpful is the guidance that emerged from the Law Society case. Lord Justice Leggatt sat with Mrs Justice Carr and in the judgment they outlined four ‘considerations’, which should influence the decision of whether or not a particular item of information should be disclosed. Slightly paraphrased, they are:-

1. The nature and potential impact of the proposal
2. The importance of the information to the proposal’s justification, and for the ultimate decision.
3. Whether there is a good reason for non-disclosure
4. Whether consultees were prejudiced.

We can call these the Leggatt/Carr factors and they can be loosely abbreviated as the Proposal test, the Justification test, the Legitimate withholding test and the Consultee prejudice test. Note that these are ‘considerations’. They are not therefore a list where you have to tick every box, and neither do they carry equal weight; each scenario might be different. They are, however helpful as suggesting the questions which consultors should ask themselves before finalising a consultation document.

If there is one factor that is more critical than the others, it must surely be the last one – the Consultee prejudice test. If omitting key information means that consultees might have responded differently, then that is enough to make the consultation unlawful for having been unfair.

In The Politics of Consultation, we have suggested three consultee rights, the first being the right to know. We had in mind the need to move away from the 30 years old Gunning formula of ‘intelligent consideration’, and we wanted to widen consultees’ expectations to meet modern conditions.

The Courts may be already moving in that direction, and the Leggatt/Carr factors are a step in the right direction.

TRIGGER POINTS

1. The exasperated Judge was Mr Justice Mostyn in his judgment on the Cherwell District Council v Oxfordshire CCG case (Horton hospital)
2. Cases referred to in this Topic include The Law Centres Federation v The Lord Chancellor [2018] EWHC 1588 and The Law Society v Lord Chancellor [2018] EWHC 2094. Both have recently been the subject of commentaries by the Institute. See News pages.
3. Will the Leggatt/Carr factors be helpful to your organisation in determining the extent to which you should publish information underpinning your consultation proposals.
4. The Politics of Consultation is now available at a special discount to Institute members.

This is the 340th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.