After a week of hard work in advance of our tCI Connect conference next week (my presentation is now ready and I hope to see as many of you there as possible! Tickets are still available…) I sat down to work out what on Earth to write about this week. The truth is, whilst the world of politics has been on fire after the mini-budget last week (it’s difficult not to think of the meme of the dog in the burning room), the world of consultation has been a little quieter. Nevertheless, I kept digging, and picked up this curious little story from the Petersfield Post, which I thought warranted a little glance.

For those of you who don’t care to click the link, this is the story of the Petersfield Post Office in Hampshire. The Post Office decided that due to the lease running out on 20^th November, they would have to move the local branch, and duly launched a consultation on the move, running from 13^th September to 25^th October. So far, so normal. Except that they have already hired a new Postmaster for the new site, and locals are up in arms over whether this renders the consultation moot. What’s the point of the consultation, they are asking, if it’s definitely going to move?

It’s an interesting question. I’ve been considering issues around predetermination quite a lot recently in the course of writing our new Introduction to the Law of Consultation training course, and on the face of it this seems like one of those things that might be an indicator of it. Why would you hire a new Postmaster unless you had already decided that the new site was a done deal? Doing so before the consultation has finished seems like it is certainly a potentially risky prospect.

Courts of course give a lot of discretion to decision-makers in how they scope and carry out their consultations, and a key determinant can be what the purpose of the specific consultation is. Are they consulting on the principle of moving the post office, or are they instead consulting on the detail of how the move is to be done? This might be important. If they are consulting on the principle, then a decision like this that would seem to confirm that the decision has already been made might be a lot riskier than if they are consulting on how the move should be done.

Looking at the consultation itself, it would seem it’s sort of a bit of both. The phrasing of the document includes a “Why are we moving?” section, which very much implies that the move is definitely happening, though the questions ask about how easy or hard it is to get to, how easy it is to get into, how easy it is to use services when inside the post office (illustrated with an example picture from a different post office), and then a selection of others, including one on “if the move were to proceed…” which might imply that it is not a done deal.

It’s all a bit confusing, and if there’s one thing consultation shouldn’t be, it’s confusing. So are the Post Office taking a risk with this consultation? They could be. If it came down to it they would probably argue that the appointment of a new Postmaster would have to be done anyway, even if they chose not to move to this particular site, so it doesn’t actually indicate predetermination of the decision. Whilst that might not in and of itself be determinative, it might succeed as a defence. In light of the fact that a move is necessary because of the expiry of the lease, it might also be one of those relatively rare cases where a court (if it ever came before one) exercised its discretion under the Senior Courts Act 1981 to refuse relief on the basis that the complained of conduct would not have changed the outcome. Either way, it’s one worthy of a little note as a precautionary tale.