To what extent should decision-makers be obliged to explain their thinking – especially if it’s in defiance of consultation responses?

One of the persistent criticisms of public consultations is that they are not sufficiently transparent. And even if critics accept that the dialogue phase is becoming more open, they will insist that after the closing date, the decision-making process itself becomes very opaque and impenetrable. In general, there is no duty to provide a rationale for decisions taken after a consultation – and certainly no legal sanction if no attempt is made to explain.

In practice, the common sense and good governance habits of many organisations lead them to offer adequate explanations. Those observing good communications practice also see the advantages of responding to the opinions of the community – especially if the decision goes against the grain of public sentiment. Alas, this is not universal and it is time to consider whether we need a stronger incentive to stimulate a more transparent approach to the latter stages of the consultative process.

One approach is to look at long-established practice in the field of Town and Country Planning, where it is customary (and in some cases a legal requirement) to publish explanations. It is not a precedent one can recommend unreservedly as they tend to be formulaic and not terribly helpful. But it means that, over the years, some standards have evolved as to what constitutes satisfactory explanations.

Back in 1984, at the Scottish Court of Session, Lord President Emslie said: –

“The decision must… leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it”. Wordie Property Company Ltd v Secretary of State for Scotland, 1984 SLT 345

More recently in 2013, Lord Reed indicated that: –

“in considering the adequacy of reasons, it is necessary to take account of matters such as the nature of the decision in question, the context in which it has been made, the purpose for which the reasons are provided and the context in which they are given.  Reasons must be proper, adequate and intelligible, and must deal with the substantive points that have been raised” Uprichard v Scottish Ministers, [2013] UKSC 21

Even more recently, in 2016, Lord Lewison remarked that: –

“There is,… a corpus of authority that suggests that fuller reasons are required where the decision maker is disagreeing with a considered and recent recommendation” Horada v Secretary of State for Communities and Local Government, [2016] EWCA Civ 169

All this will make sense and chime with consultation professionals who are much aware of the need to provide feedback to participants and consultees not just on the opinions gathered in the listening exercise, but also on the subsequent decision-making. It also chimes with the Consultation Institute, as Transparency is one of the seven principles – one that is growing in importance.

In England, Government Ministers seem to agree, for in 2014 we had the Openness in Local Government Bodies Regulations obliging Councils to record their decisions – and some decisions of officers. It specifically requires the reasons for the decision and details of any alternative options, if any, and the reasons why they were rejected. Regulation 7 prescribes three ‘guiding principles’ that will be of interest to those involved with consultations:-

• reasons should be produced as soon as reasonably practicable after making the delegated decision
• it is a reasonable inference in the absence of contrary evidence that the delegated officer accepted the reasoning and recommendations in any officer’s report to them (albeit it is best practice for such acceptance to be recorded);
• the reasons may be briefly stated but must be proper adequate and intelligible and deal with the main issues and substantial points raised (including objections).

Note that these rules apply only to Councils. They do not cover the National Health Service, Police or central Government departments. Neither is it completely clear that decisions following public consultations are necessarily covered. Indeed, the 2015 version of the Local Government Transparency Code makes no specific reference to these situations. Yet it is difficult to imagine decisions where the duty to explain would be more helpful in building public confidence in community engagement.

So what of enforcement? Let’s return to Planning and observe a case which arose in Scotland. In 2015, the Court heard an appeal by North Lanarkshire against a decision of Scottish Ministers to approve an unpopular project for an International Freight Terminal at Mossend. The Council had initially refused, but Ministers commissioned a Reporter (similar to a Planning Inspector) to investigate. He recommended rejection. However, Ministers still went ahead to approve the project, and had to comply with a legal requirement to publish their reasons. The Court had to determine whether the reasons were lawful and came to the devastating conclusion “that the reasoning in Scottish Ministers’ decision letter does not meet the standard of intelligibility required for a decision overturning the clear and reasoned recommendations of the reporter.” (per Lord Drummond Young) North Lanarkshire Council v Scottish Ministers [2015] CSIH 69

Fast forward five years. May we find judicial reviews against actions by public bodies where Judges are asked to comment on the ‘intelligibility’ of post-consultation decisions? Who knows?

TRIGGER POINTS

• The Openness in Local Government Bodies Regulations 2014 can be viewed here
• If you are a body bound by these Regulations, have you had to amend your practices on explaining post-consultation decisions?
• The Local Government Transparency Code can be found here
• The Institute’s Consultation Charter can be found here
• These cases and many others are discussed in detail in the Institute’s Law of Consultation course on 26 April in York and on 27 June in London
• Join us on 7 June in Birmingham for our conference on Public Engagement in the Post-Truth Age: Where Next for Public Engagement?

This is the 318^th 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.