When your consultation is legally challenged…
Four important steps to ensure a responsible response.
It’s called a Letter before claim or sometimes a Letter before action and will normally find its way to your in-house legal team or an external firm of solicitors. Technically it will not be challenging the consultation – but a decision taken following a consultation. In all probability it is seeking to quash that decision by whatever means are legally possible; the consultation may only be one of several points on the path to that decision, but is very vulnerable to challenge, as many Institute members and practitioners know too well.
The letter will set out the reasons why the claimants believe the decision may be unlawful. It could, for example allege that your organisation has no right to take the decision, or that statutory provisions circumscribe the discretion you have. In the recent challenge to Northamptonshire County Council’s plans to close libraries, part of the case was quite separate from consultation – and rested on an alleged failure to provide the statutory legal minimum service. Similarly, the important Bristol City Council judgment in July was not just about the consultation – but an alleged failure to provide a Special Educational Needs service as required by statute.
The claim may question the honesty of your consultation. It may allege that you had already made up your mind – pre-determination. It may assert that information you provided is either inaccurate or misleading. Or it may allege failure to observe the Equality Act’s S.149 ‘due regard’ principle. Thrown into the mix will be any and every failure that claimants believe affected stakeholders’ opportunity to express an informed view. Time may have been too short; the methods used were inaccessible; impacts may have been underestimated, or responses from consultees were not properly considered. To cap it all, claimants will describe your decision as ‘irrational’. Until recently, this would have been wishful thinking. Not any more. Three consultations fell foul of such a judgment this summer!
So, what advice can we offer?
First, don’t panic! Many letters before claim are highly speculative. Remember that many causes are pursued more for political than legal reasons – part of multi-faceted public campaigns to discredit organisations and persuade them to reverse an unpopular decision. There may have been a fundraising effort to finance a challenge, but usually solicitors will avoid a hopeless case. You may have monitored opposition and anticipated a likely legal challenge, in which case you may have talked to your legal team in advance and told them to expect the letter. Try not to be taken by surprise as the 14 days allowed for response is very short.
Secondly, conduct an immediate assessment of your vulnerability. This may well be best done by specialists in consultation rather than by lawyers who may lack the necessary expertise. Obviously work with your legal teams, who will no doubt focus on the more obvious legal issues, but experience shows that much depends upon the factual context where the operational behaviour of public bodies will influence the way in which the law is applied. Accept that sometimes a consultation that may just survive a legal challenge, may still reveal actions and attitudes that will cause reputational damage which could embarrass senior managers or elected members. An independent assessment by consultation specialists may be more likely to uncover these.
Thirdly, explore what can be done to avoid a judicial review. Going to Court is a massive cost – not just in retaining lawyers but in diversion of management effort, delays to implementing time-critical decisions and knock-on blight on other decisions and activities. If a claim highlights arguable failures that can be addressed by taking more time, reconsidering certain options, further post-consultation dialogue or even, in cases, re-consultation, it can sometimes be better than a protracted legal dispute that could possibly take six to eighteen months (if an appeal is pursued). Avoid management machismo that leads public bodies to fight marginally-defensible cases. Do not forget that some lawyers (not yours, obviously) have a vested interest in fighting cases regardless of their chances of success.
Fourthly, if the case proceeds, ensure your evidence is sound. A good assessment should have looked at the paper-trail and established whether documentation – both hard-copy and electronic – supports your case. The rules of ‘discovery’ are demanding – and there are no exemptions such as apply to Freedom of Information requests. Email correspondence between managers or with third parties can lay your organisation vulnerable, but may not be conclusive of themselves. Judicial Reviews are not like jury-determined trials. Barristers argue in front of a Judge and evidence is presented as affidavits that are time-consuming to prepare and need to be meticulously researched. Expect facts and figures to require supporting authorities and evidence.
In general, cases that reach the High Court are 50/50 situations which could go either way. One of the country’s top legal firms told us recently that they measure success by the number of times they avoid going to Court, and there is truth in this. This happens because they provide good legal advice at the outset and persuade their public body clients to meet claimants’ legitimate points constructively. In the Institute, we believe that following best practice should minimise the risk of challenge, and in a recent Court case where Dorset CCG successfully defended its consultation, the Judge said he was ‘fortified’ in his decision by that fact that the Institute had conducted a full Quality Assurance of the process.
We hope this gave the organisation comfort on the day that the Letter before claim arrived.
- The reference to Library closures is the case of R (ex parte WX) & R (ex parte Connolly) v Northamptonshire County Council  EWHC 2080 where the statutory duty was S.7 of the Public Libraries and Museums Act 1964. The Institute recently published this article about the case.
- The reference to Special Educational Needs is from the case R (ex parte KE etc) v Bristol City Council  EWHC 2103 where the statutory duty was S.27 of the Children and Families Act 2014. The Institute recently published this article about the case.
- The reference to the Judge’s comment on the Institute Quality Assurance process was from R (ex parte Hinsull) v NHS Dorset CCG. The Institute recently published this article about the case.
- These and other cases will feature in the Institute’s Law of Consultation. Whilst the 31st October course in London is full (waiting list available), there are places currently on offer for 5th December, 13th February 2019 (Bedfordshire) and also 27th March 2019 (York).
- Issues raised in this course will also be covered in the Institute’s course on Equality Law for Public Engagement and Consultation. There are a couple of places available for 1st November course in London but there are places currently on offer for 6th December, and 14th February 2019 (Bedfordshire) and also 8th March 2019 (York).
- The Law of Consultation course is available for delivery in-house. Also, there is a half-day Workshop, Latest Developments in the Law of Consultation – available for in-house delivery. Please contact Rebecca Wright for further details.
This is the 341st 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.