Consultation in the Spotlight

The government has recently published a revised set of consultation principles for government departments conducting consultations. The revised principles follow a number of successful judicial review challenges concerning the fairness of consultation processes.

Locally consultation has hit the headlines with the Application for Judicial Review against the early closure of the Northern Ireland Renewables Obligations Certificate Scheme. The Ulster Farmers’ Union (UFU) and Simple Power lodged papers with the High’ Court in Belfast seeking leave for a judicial review of consultation proposals published by the Department of Enterprise, Trade and Investment (DETI). The legal action focused on DETI’s handling of the consultation process and follows substantial industry-wide complaints about the impact the proposals will have on farmers and businesses across Northern Ireland.

DETI have since re-issued a revised consultation document the closure of NIRO to small scale renewables. For more information please see:  https://www.tughans.com/latest-news/consultation-closure-small-scale-wind/

As our local councils begin a consultation process on area plans and other planning policies there is sure to be a greater focus on consultation.

General Consultation Principles

Councils and other public authorities need to watch their footing when consulting the public – particularly on unpopular budget cut proposals. Sometimes there will be a statutory duty to consult, sometimes not.

But, statutory or otherwise, if a public authority embarks on a consultation it must do so properly. And this means complying with the well-known Gunning principles – identified in R v Brent London Borough Council, ex parte Gunning, (1985) 84 LGR 168.

These are that:

• Consultation must be at a time when proposals are still at a formative stage;
• The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response;
• Adequate time must be given for consideration and response; and
• The product of consultation must be conscientiously taken into account in finalising any statutory proposals.

The High Water Mark of Public Consultation?

The Gunning principles were roundly endorsed by the Supreme Court in R (Moseley) v London Borough of Haringey [2014] UKSC 56. There the council was found to have acted unfairly and so as to have prevented meaningful public participation in its decision-making process when consulting on its council tax reduction scheme. This was because (in a context with which the general public could not be expected to be familiar) the consultation document should have contained a brief outline of the alternative options and reasons for their rejection.

The key question in that case was said to be ‘whether such reference or information is necessary in order for the consultees to express meaningful views on the proposal’.

Lord Wilson went on to set out certain other important principles of a fair consultation, namely that:

the public body is under a duty to act fairly regardless of whether the consultation is a statutory requirement or not;
the “democratic principle at the heart of our society” means that there is constitutional value in itself in involving, and hearing the views of, members of the public in the decision-making process;
potentially affected members of the public, who are economically disadvantaged, should be given more specific information about the consultation by the public body; and
the demands of fairness will be stricter where the outcome of the consultation may be to deprive someone of a benefit that they previously enjoyed.

Following Moseley there has been a number of further decisions which have clarified and elaborated the principles of consultation. A recent decision highlights that it may be necessary to consult on assumptions to be adopted prior to commissioning research which is later relied upon to justify a proposal. A failure to consult on assumptions made in key research in relation to criminal legal aid reforms was found to be unfair, particularly in the context of the potential for the decision being consulted on to have a profound effect on the market and livelihood of those being consulted (R(LCCSA) v Lord Chancellor [2014] EWHC 3020).

The case of BDA v GDC [2014] EWHC 4311  found that a public commitment to being transparent in providing financial information to consultees gave rise to a legitimate expectation of a transparent consultation. Consultees should have been provided with sufficient information to test assumptions underlying the proposal, understand why alternatives had been rejected, and be able to make an informed response

Rowing back from Moseley?

However, since that decision there has been a number of refinements by the lower courts which could be seen as “rowing back” from the high water mark of Moseley.

In the case of R. (Angharad Morris and Donna Thomas) v Rhondda Cynon Taf County Borough Council [2015] EWHC 1403 (Admin), the Administrative Court concluded that there was no inviolable rule established by Moseley that alternatives had to be consulted upon in every consultation exercise. The Administrative Court took a fact-sensitive approach to hold that sometimes fairness may require consultation on alternatives, only so far as the alternatives were realistic. In this case the Administrative Court was of the opinion that the option of the status quo, namely funding for full-time nursery education, was deemed to be a sufficiently realistic alternative to the preferred option, despite the public body having stated in the consultation material that such an option was “considered to be unaffordable going forward.” Thus, the demands of fairness as established by Moseley were met on the facts.

R. (on the application of Hall) v Leicestershire County Council [2015] (unreported) is an interesting case in that it held that it had been open for the public to submit alternative proposals, whereas it had been for the public body to decide how, and about what to, consult on. This reasoning appears to say that the public body need only consider alternative proposals as part of the consultation response, rather than beforehand as part of the list of options to be consulted upon. In this case, the public body was entitled to have a preferred option, provided that it had not closed its mind to other options. On these facts, it had not. Therefore, the consultation had not been unfair.

However, this might be a risky approach for a public to adopt as it may be difficult for a member of the public, without all of the technical information available or without the necessary professional skills to realistically formulate an alternative capable of serious consideration.  We would therefore caution that this might be a very fact specific decision. Our analysis is supported by the decision in R (Rusal) v London Metal Exchange[2014] EWCA Civ 1271) which held that when assessing whether the inclusion of information on alternatives is necessary, the level of general knowledge of the participants will be taken into account – including their knowledge of the available alternative options and the consequences of those options.

In R (T) v Trafford Metropolitan Borough Council [2015] EWHC 369 (Admin), Stewart J rejected a challenge to Trafford Council’s consultation on proposed cuts to its adult care budget. The claimant was a disabled man (acting through his mother as litigation friend) who challenged the council’s consultation on proposals to cut its adult social care budget for 2015/16. The claimant contended that the council had failed to provide adequate information on alternatives to its proposal, which would result in a smaller funding reduction for adult social care services. The court concluded that the public body had not misled the public by suggesting that there was no alternative to the cuts. On the contrary, before the consultation, it had considered increasing council tax or using its reserves, and it had provided some information about why it had rejected those options. The court considered that it was lawful, and fair, for the public body to consult on a preferred option, and to arrive at a position before the consultation that increasing council tax or using reserves were not realistic alternatives that necessitated separate consultation.  A key element of this case was that substantial information was publicly available in Council budget documents and this information was referred to in the consultation documents.

Government Guidance

The government says that the revised consultation principles will improve the way it consults by adopting ‘a more proportionate and targeted approach.’ The revised principles place emphasis on the consultation being accessible, for example, in terms of the language used, the process of engagement and length of consultation. The consultation should also be targeted and tailored to the needs of particular groups. The revised consultation principles can be found here:

https://www.gov.uk/government/publications/consultation-principles-guidance

The cases referred to above concern the sufficiency of the information provided to consultees. In this respect, the principles say that consultations should “give enough information to ensure that those consulted understand the issues and can give informed responses” and that they should include “validated assessments of the costs and benefits of the options being considered when possible”.

It is clear that the adequacy of consultation will continue to be a fertile ground for challenge. In the Northern Ireland context where on occasion we are required to rapidly follow in the footsteps of the rest of GB, as recent proposals in respect of renewable energy demonstrate, mean that there are inherent risks with truncated consultation processes that appear to present a foregone conclusion.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.

 

While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.