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Why do they keep coming? – So far in 2014, there have been 10 significant Judicial Reviews on consultation? Why is this happening?

The way the law should work – it is a self-learning system. Once a decision has ruled effectively on a certain set of situations or arguments, everyone should follow suit, knowing that if they broke the rules, they would be taken to court, and judgment against them would follow. Simples!

Why, therefore do we still see a procession of seemingly unconnected legal challenges that turn to one extent or another on the legality of the consultation process? Is there something inherently difficult to grasp about the fundamental principles of the law of consultation that makes it difficult to predict the outcome of particular cases? Or have Judges so tied themselves in legalistic knots that anyone with a faint chance of success fancies having a go …?

For the record, it is worth cataloguing the ten 2014 cases that the Institute regards as significant since the Spring. What a diverse bunch they are:-

  • LH v Shropshire CC – a challenge to an Adult Social Care proposal to close a day centre;
  • Bancoult v The Foreign Office – claims that a consultation paper about the Chagos islanders misled consultees;
  • The Plantagenet Alliance (King Richard III) case – about the ‘legitimate expectation’ of consultation – reversed on appeal;
  • Flately v Hywel Dda Health Board – allegations that a ‘secret plan’ led to a pre-determined consultation;
  • Draper v Lincolnshire CC – where a single option Library closure plan was challenged as being pre-determined;
  • London Solicitors v Lord Chancellor – about the withholding of key assumptions from a relevant research report;
  • Whiston v Lord Chancellor – mesothelioma sufferers questioned the use of a consultation for a statutory Government review;
  • Russian Aluminium v London Metals Exchange – whether there is an obligation to publish the nearest alternative option. High Court decision reversed on appeal;
  • Robson & Barnett v Salford Council – a challenge to the withdrawal of transport service for disabled people;
  • Moseley v LB of Haringey at the Supreme Court – concerning the consultation on a local Council Tax Benefit Scheme – and whether it was okay only to consult on the options favoured by the Council.

Note how three inter-related themes predominate. They are the

  • The options offered;
  • The information provided;
  • The integrity of the consultation – by which we mean the extent to which the issue was still open to influence.

Overlaid on these are specific statutory requirements (as in Moseley) or the doctrine of ‘legitimate expectation’ (as in the Richard III case). Together they form a sufficient cocktail of uncertainty to encourage litigants to go to Court rather than settle quietly.

That uncertainty stems mainly from the context-sensitive nature of consultation. Because the fundamental principle is that of ‘fairness’, what appears to Judges to be ‘fair’ in one set of circumstances may be different in another. Only gradually are we able to piece together a new set of guidelines to supplement the well-established Gunning Principles. Two specific factors are however emerging quite strongly.

One is that the fairness requirement for each consultation is influenced by the identity of those whom it is consulting. The Courts seem to be drawing a distinction between statutory consultees or stakeholder organisations and the general public. Indeed they are suggesting that an exercise designed to elicit views from ‘economically disadvantaged’ or other seldom-heard groups may demand a higher standard of communication in order to be lawful. This could have considerable implications

The second idea that seems to be gathering currency is that the demands of fairness may be higher when a public authority is considering depriving someone of an existing benefit or advantage than in cases where the claimant is an applicant for a future benefit. At least this explains why so many judicial reviews result from service withdrawal or facility closure scenarios.

What Institute members and others have to bear in mind is that there is scarcely any controversial situation that is wholly immune from legal challenge; some organisations may be tempted to plan the exercise with that possibility in mind from the outset. But, seriously, the Courts are most unlikely to find against any body that has ensured its consultation is transparently fair. An effective independent Quality Assurance acts as a safeguard to help avoid errors or omissions that can make the consultation vulnerable.

What we must all do is keep a close eye on the changing attitudes of the judiciary and the way that the concept of fairness is being interpreted.

TRIGGER POINTS

  • Does your organisation have its own in-house legal department? If so, does it have expertise in this specialist area?
  • Have you read the Institute’s Briefing Note 12, dated 4th November and called The Supreme Court & the law of consultation options. Non-members can obtain a courtesy copy by calling Remmert Keijzer on 01767 318350
  • The Institute’s Quality Assurance scheme is now well-established and offers measurable benefits. Contact Jan Warner on janw@consultationinstitute.org for more details.
  • Consider attending the Institute’s comprehensive ‘Law of Consultation’ training course, now updated to include the 2014 cases mentioned in this Topic. Next dates.

This is the 268th 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

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