Consultation considerations

With elections just around the corner, it is timely for those working in central and local government to ensure that they are familiar with the requirements for consultation with people who will be affected by the decisions of public authorities. Whatever the make-up of the government that is elected in May, it will want to make its mark with new policies and initiatives, involving requirements for consultation at a national and local level.

Add to that the potential for changes in individual local areas where new administrations are formed following mayoral and local authority elections, and the many decisions taken regularly by local authorities, and we can expect a lot of consultation over the next year. To borrow and adapt the words of Austin Mitchell MP about the government elected in 1997, we can expect the new government to hit the ground consulting.

Effective consultation can provide a local authority with information that will help it to take appropriate decisions. However, a local authority with inadequate consultation or no consultation risks alienating its community and having decisions challenged and possibly overturned. Recent cases have reminded us of the importance of effective consultation in decision making and the potential for getting it wrong.

Local authorities may have a statutory obligation to consult or have given a legitimate expectation of consultation. Where there is a statutory obligation, the statute may say how consultation should be conducted, and any such requirements must be followed rigorously. Legitimate expectation may arise if a local authority has said that there will be a consultation on a particular subject or has previously consulted in similar circumstances.

Sometimes a need for consultation will arise from the common law duty of public authorities to act fairly. Local authorities must always act reasonably in decision making and should consider whether consultation would be relevant and helpful, even without a specific legal obligation.

Consultation requirements

The elements of effective consultation have developed in case law over the years. There are now general principles that can be drawn from cases such as R v North and East Devon Health Authority, ex parte Coughlan [1999] EWCA Civ 1871 and R v Brent London Borough Council, ex parte Gunning (1985) 84 LGR 168, as follows:

• Consultation must take place at a formative stage of a decision, so that it can meaningfully inform the decision-making process.
• It must provide enough information to the persons being consulted, including sufficient reasons for proposals, to enable them to give intelligent consideration and respond to the consultation in an intelligent way.
• It must allow sufficient time for people to prepare and present replies to the consultation.
• The decision maker must take the responses into account conscientiously when taking the final decision.

Where consultation has been judged inadequate, reasons have included pre-judgement, lack of disclosure of information and insufficient time. Cases have covered a range of services, showing the importance of valid consultation across the full spectrum of a local authority’s functions.

In 2012, the government published guidance
on principles of consultation, which it updated in 2013. Although there is no equivalent guidance
for local authorities, the principles will also be applicable to them. Points made in the guidance include:

• The type and scale of the consultation must be proportionate to the potential impacts of the decision being taken.
• The objectives of any consultation should be clear.
• Engagement should begin early in policy development, when the relevant policy is still under consideration and views can genuinely be taken into account.
• Information provided in a consultation should be accessible and useful.

In some circumstances, formal consultation may not be appropriate, for example where an action is necessary as a result of a court judgment or where adequate consultation has taken place at an earlier stage for minor or technical amendments to regulation or existing policy frameworks.

The need for fair consultation does not mean that authorities must change their proposals to satisfy people who disagree with them. A local authority that takes a reasonable decision after seriously considering views expressed in an effective consultation can be confident about the legality of its decision, even if it goes against views expressed in the consultation.

Local authorities have managed to withstand challenges to controversial decisions because the courts have accepted that their decisions were reasonable. In R (on the application of T and others) v Sheffield City Council [2013] EWHC 2593, for example, a decision to stop paying subsidies
to nurseries was challenged on several grounds, including breach of the duty to hold a fair consultation. The challenge failed, with the
court finding that the consultation was taken
at a formative stage and that the local authority
gave detailed reasons for its proposals and conscientiously took into account views expressed during the consultation process. A comment was made that councils are democratically elected to make decisions and some of these are bound to be contentious and unpopular. The decisions in this case, although controversial, complied with the standards imposed by public law.

Recent cases

In October 2014, the Supreme Court considered the requirements for valid consultation in the context of a challenge to a local authority’s council tax reduction scheme. In R (on the application of Moseley) v Haringey London Borough Council
[2014] UKSC 56, the local authority conducted
a consultation on its draft council tax reduction scheme. The local authority needed to address
the shortfall caused by the abolition of council tax benefit and proposed to do so by requiring those in receipt of full benefit to pay between 18 per cent and 20 per cent of their liability. It proposed no other options, even though while the consultation was ongoing the government introduced a transitional grant scheme for authorities with schemes meeting specified criteria.

The Supreme Court found the consultation to
be unfair and therefore unlawful. Fairness required that reference be made to other ways of addressing the shortfall and why the local authority considered them unacceptable. That would not have been onerous. The court also remarked that the requirements of fairness had to be linked to
the purposes of the consultation and were likely
to be higher when an authority was considering depriving someone of an existing benefit.

Other local authority decisions have recently been judged unlawful because of consultation failures, with courts following the judgment in the Haringey case. In R (on the application of Regis) v Enfield London Borough [2014] EWHC 4173, designation of the borough for additional licensing of houses in multiple occupation and selective licensing of private sector rented properties was found to be unlawful because of a failure to take adequate steps to consult with potentially interested parties and to consult for the required time. In R (on the application of McCann) v Bridgend County Borough Council [2014] EWHC 4335, a local authority’s consultation over school closure was judged unlawful because of failure to comply with the School Organisational Code and comments about the educational benefits of school closure that were not backed by evidence. However, in R (on the application of Robson and another) v Salford City Council [2015] EWCA Civ 6, which involved the closure of a passenger transport unit, although consultation documentation was incomplete, consultees had not been misled, and overall the consultation was found to be fair.

Future consultations

Haringey confirmed long-established principles
of consultation and showed the robust approach
the courts will take. Local authorities must ensure their consultations are sufficient to keep their decisions safe from challenge. Before taking significant decisions, an authority should:

• Consider what obligations there are for consultation.
• If it concludes that consultation is necessary, provide all relevant information to consultees.
• Comply with any obligations imposing a timescale. Even if there are none, the authority must allow consultees sufficient time to respond meaningfully. A longer consultation period may save time in the long run by eliminating a risk of challenge.
• Consider conscientiously the views expressed in consultation when taking its decision.

Local authorities failing to do so will find their decisions vulnerable to challenge.

Local authorities must not underestimate the importance of effective consultation to good public administration. As Lord Justice Auld said in R (on the application of Edwards) v Environment Agency and others [2006] EWCA Civ 877 : “It is an accepted general principle of administrative law that a public body undertaking consultation must do so fairly as required by the circumstances of the case.” SJ

Huw Williams is lead partner in the public law sector at Geldards

@Geldards