If you’re involved in consultation you’ll be aware of several recent legal challenges. Sheffield’s Save Our Trees Campaigners and Derbyshire County Council’s challenge to Sheffield City Region as just two of these. Inspired by a recent workshop with the Consultation Institute, here’s a general guide to getting consultation right.
How many consultations go to judicial review?
Consultation law is quite new. There have only been around 100 cases of consultation taken to court since the 1980s. Judges tend to look back at previous cases and cite them in the case they’re hearing. So precedents are set as more cases go to court.
What prompts a legal challenge?
Challenges to consultations are more common now, often from disappointed consultees. Challenges can come from individuals, community groups other public bodies.
You need to make sure your consultation activity is strong enough to stand up in a court of law if challenged. 95% of challenges don’t make it to court, as the majority of consultations are done well. But this means that 5% do go on to be challenged under a microscope in a courtroom.
What is a judicial review?
It’s a procedure to secure court intervention on a public body’s actions. If the court finds that an organisation has consulted unlawfully, it can order a decision reversal. This means the consultation process would need to take place again. Courts may also order organisations to pay damages.
The ‘doctrine of legitimate expectation’ is where the courts expect public bodies to follow a fair process and do what they said they’d do. Consultees have the right to fair consultation, and to be consulted in a way that meets the expectations we’ve set. This means you need to stick to your word, keep your promises and make sure you’ve followed your own clear guidance.
The Gunning Principles
In 1985 Stephen Sedley QC proposed a set of principles that all consultations should follow. These apply to all public consultations.
1. Consult when proposals are still at a formative stage
You need to consult with an open mind. It’s OK to have some ideas, but not to have already made a decision.
2. Give sufficient information to permit intelligent consideration
People must have enough information to make an informed choice and contribute to the process. This includes making sure you ask the right questions and being sure you’re not leading consultees to a certain choice. Equality Assessments should be completed before the consultation and published.
3. Give adequate time for consideration and response
You need to be certain that the timing is appropriate and that people have enough time to make an informed decision and provide feedback. Give yourselves enough time to analyse results and make a decision.
4. Take responses conscientiously into account
You must be able to show that you’ve taken consultation responses into account. Being able to show meeting papers is not enough. You need to prove that decision makers have read papers or received presentations. Questions asked by decision makers should be documented.
Is there a statutory obligation?
Sometimes, even if you know you don’t need to consult, you might think it’s a good idea to begin a consultation process to be on the safe side. Then because it’s not obligatory, you might not do it robustly enough. Consultation case law shows that once any consultation is started, it must be done effectively and meet all the principles.
What does this mean?
You need to think carefully about what you’re consulting on as well as the content and timing of your consultations. If a consultation goes to court, the overall question that will be asked is ‘Was it fair?’ You need to be confident that your decision making is done fairly. We can help each other to be better at this.
Find out more
Have a look at the Consultation Institute’s website and sign up to their newsletter.
If you’d like to chat about consultation or consultation court cases, or would like more background on consultation, please comment below.