When the Supreme Court rules on an important question of law, the general expectation is that it should provide a definitive settlement of disputed arguments – the last word on the current state of the law, if we like.

So when on October 29^th, the highest Court in the land published its first-ever judgment on public consultation, we were looking for some clarity on the key issue at stake, namely whether or not a public body has to include discarded options in that consultation. The case concerned Council Tax Benefit – and the Government’s replacement of the previous nationwide arrangements with local schemes with reduced funding and upon which Councils were obliged to consult. In the London Borough of Haringey – as in other local authorities, the Council consulted on a range of options – but only on those it felt were appropriate. It did not offer a choice of using its capital reserves or sharing the financial burden more widely across local residents.

A legal challenge was mounted in 2013 and failed. The Court of Appeal also rejected the claim, maintaining a long-standing judicial reluctance to intervene or interfere with the wide discretion given to public bodies regarding their choice of options. An appeal to the Supreme Court was welcome – if only because the Courts have been wrestling with the issue of options now for some years and clarity is much needed.

The truth is that recent cases included some contradictory messages. In the Vale of Glamorgan case in 2011, the Court refused the Council’s claim that, in closing Magistrates courts, it should have included other options that might also have been possible. The following year, the Department of Health won the appeal against the original decision in the Royal Brompton Hospital largely because the NHS could show that consultees could sensibly respond on options other than those that were published.

Then earlier this year, in the Russian Aluminium case, the Court appeared to widen the range of circumstances where there was a requirement to include additional options. This was then overturned by the Court of Appeal which re-affirmed the Vale of Glamorgan thinking. In short – confusion!

So the Haringey case is definitive. Or is it?

First the good news. The Court was unanimous in saying that the Council had not provided enough information about its reasons why it had already decided to exclude some of the policy options it has discarded. This has been best practice for some time, and it is good to have clear judicial endorsement for the principle.

But now the complications.

Lord Wilson based his judgment on the search for fairness. He said this might require ‘passing reference to be made to arguable yet discarded alternative options.’ He approved a statement by Lord Underhill who had said that ‘consulting about a proposal does inevitably involve inviting and considering views about possible alternatives.’ So we may have options … and options – some approved and others not. And what would be a satisfactory ‘passing reference’? Consultors will be in a quandary as to how much detail to provide.

Even more interestingly, Lord Reid explains his rationale on a different basis. He argues that where – as in the Haringey case – there is a statutory requirement to consult, one has to look at the specific context, and in this case, he concluded that its purpose was ‘to ensure public participation in the local authority’s decision-making process.’  Not everyone will be 100% comfortable with this construction.  But it led him to an analysis full of practical implications for consultors.

“Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme.”

“That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected. …. The question will generally be whether, in this particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal.”

“In the present case … it is difficult to see how ordinary members of the public could express an intelligent view on the proposed scheme, so as to participate in a meaningful way in the decision-making process, unless they had an idea of how the loss of income by the local authority might otherwise be replaced or absorbed.”

“Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection …. Nevertheless enough must be said about realistic alternatives and the reasons for the local authority’s preferred choice, to enable the consultees to make an intelligent response …”

Far from clarifying the law, therefore, the Supreme Court may have muddied the waters further. The two different strands of thinking that emerged may take public bodies in somewhat different directions. What is clear is that consultation law continues to be very case-specific, and that public bodies have to be ultra-careful to avoid being vulnerable to legal challenge.

The Institute View

• The legal position on options remains uncertain, but best practice is far more clear-cut.
•  We advise our clients always to try hard to offer stakeholders and the public as wide a range of viable alternatives as possible. Relying on single preferred options has been shown to provoke opposition and allegations of pre-determination.
• Genuine stakeholder involvement in the processes of options identification, development and assessment is now essential and supports the idea of evidence-based policymaking. The Supreme Court has made an excellent case for disclosing this in consultation documents
• Every consultor organisation needs to take utmost care when drafting its consultation narrative – to ensure it will not be vulnerable to challenge. The Institute’s Quality Assurance service & compliance assessment process is being amended to ensure our advice is fully consistent with the Supreme Court judgment

 

Further insights

• This Briefing was written by Rhion Jones, Programme Director of the Institute, and who may be available for discussion. Telephone the Institute Centre of Excellence in Biggleswade on 01767 318350

The cases referred to in this Briefing are:

• Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1523 (Admin)
• The Royal Brompton Hospital v The Joint Committee of PCTs [2012] EWCA Civ 472
• R (ex parte RUSAL plc ) v London Metal Exchange [2014] EWCA Civ 1271
•  (ex parte Moseley) v London Borough of Haringey [2014] UKSC Civ 116
• For interesting commentaries on the Supreme Court decision, look at
• UK Human Rights blog: http://ukhumanrightsblog.com/2014/10/29/consultation-duty-gets-to-the-supreme-court/
• Irwin Mitchell Press Release

Notes are published by the Institute in good faith as a member benefit, but the information provided cannot be relied upon as constituting advice giving rise to any legal or other liability whether express or implied.

This is the 12^th Briefing Note; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement