It would seem that the days when we got practically no consultation law cases from Scotland are well and truly over. When we saw McHattie v South Ayrshire at the beginning of 2020 we noted that it was unusual to see a case in Scotland, and the case was a welcome reminder of the enforceability of consultation in the Scottish context, where much focus has been placed on other mechanisms for engagement.

Since that case however we have seen, if not a deluge of cases, at least a steady trickle. Planning came under the spotlight in Graham’s Dairy, fisheries were considered in the Scottish Creel Fishermen’s Federation (and its appeal), there were attempts to challenge the Scottish covid vaccine passport scheme on consultation grounds (though the JR application was refused). The latest in the canon is one from a month or so ago.

The case was a challenge to the Scottish Government’s assessment of funding rates set in the Milk and Healthy Snack Scheme (Scotland) Regulations 2021, in short, how were the free allocations of milk given to Scottish children to be paid for? Previously, childcare ‘settings’ could source their own milk and would be reimbursed by the Scottish Government, but new regulations changed this to a system by which local authorities would be provided with periodical advance payments for the milk, on the basis of a ‘local serving rate’ for their area.

The calculation of this rate was the source of this challenge, brought by a sectoral body who claimed that the scheme had resulted in de facto funding cuts to many areas. The consultation that had led to the regulations had only covered the basic principle of milk provision, and though assurances had been provided that there would be further consultation on the design of the scheme funding, this had not happened.

As the earlier consultation had only been on the design of the scheme and details of the rates had not been available for comment on, the petitioners (claimants, in English legal parlance!) claimed they had not had the opportunity to make meaningful representations on an issue that would be critically important to their operations, which fell foul of the legitimate expectation principle.

The Court agreed, applying the four factors that had been outlined in the Law Society v Lord Chancellor case about the disclosure of relevant information. It was sufficiently important information for the stakeholders that they should have had the opportunity to comment on it beforehand, and the respondent could give no good reason as to why they had not disclosed it. In addition, communications with the petitioners had promised further consultation on design, which was sufficient to establish a legitimate expectation of the same.

The Court also considered a challenge that the Scottish Government had not undertaken adequate inquiry into how the rates should be set. Petitioners claimed that there had been no real inquiry into the costs of non-dairy alternatives, market rates for all settings and the indirect costs of delivery refrigeration and beakers. In addition, the decision was made (so they claimed) on the basis of two material errors- that prices paid by local authorities were representative of those paid by private childcare settings, and that there would be no impact on competition in supply. These two factors were claimed to render the decision unlawful by way of irrationality. The Court agreed.

Perhaps the most interesting part of the case was the second strand to the irrationality argument- an allegation that the refusal to amend the scheme, after the difficulties with the rates had been drawn to its attention, was irrational. The respondents argued that there was scope in the regulations for post-facto adjustments, and that any difficulties would be “ironed out” in the second year of operations. Considering the objectives of the policy (in a manner which possibly strays a little close to taking policy-decisions than might be entirely comfortable), the judge determined that even were he wrong in deciding the scheme itself was irrational, the refusal to amend it in light of the problems that had been raised was irrational.

While the principle that refusal to amend decisions in light of new evidence might be irrational is not particularly novel it’s one we don’t often see in the consultation context. Although in this case it was essentially an alternative ruling, it might be interesting to wonder if any circumstances might ever arise where this was held to be the case post a legitimate consultation. Are there cases where the refusal to amend a decision that had been consulted on in a manner that ran counter to the accepted result of the consultation might be held to be irrational? Would this not frustrate the common law expectations of respondents to the consultation? An interesting question, no doubt…