Just when Institute members and others left for annual leave in late July, comes a High Court judgment to worry those who have to brief Councillors, Members of public bodies, NHS decision-makers and indeed anyone who has to determine difficult issues following a public consultation.

The case is R (ex parte DAT & BNM) v West Berkshire Council and revolves around the extraordinarily difficult decisions that public bodies have to make in rationalising social services for vulnerable groups because of reductions in public expenditure. The issue in W. Berkshire concerns reducing short breaks for disabled children, but the underlying principles could apply to any one of the 47 public-facing services the Council consulted upon – or the thousands of other proposals for changing services which everyone from Fire Authorities to National Parks are having to consider. Its significance is that Mrs Justice Laing had to consider the advice given to Councillors regarding pre-determination and also the ‘due regard’ provision of the Equality Act 2010. Following a public consultation, these two factors are supremely important if decision-makers are going to take a lawful decision. So the advice given by officers, and the way it is expressed, is absolutely pivotal.

There is much to admire about the Court’s approach. The Judge said

The full council, unlike a government minister, is a collective body. It is made up of Councillors, who (apart from members of the executive) are not full-time politicians. Those who are not retired, or not in work, often have full-time jobs outside local government.

They fulfil important public duties part-time, often at meetings in the evening, often after a full day’s work. They are entitled to expect, and very often are given, excellent help by full-time expert officers to understand the policy and legal issues which will equip them to make lawful decisions. … They do a difficult and at times unpopular job under tight time constraints. Parliament has given them, and not the courts, the job of making difficult decisions such as setting the annual revenue budget for their area (Par 43)

This implies a fairly generous view of the difficulties found in this type of scenario, and in February’s Court of Appeal judgment on the Bedroom Tax case, Judges repeatedly stressed that they are not in the business of “micro-managing the policy-making process”.

However, two things went wrong. Firstly, Council officers repeatedly used a specific formula to remind Councillors of their legal obligations, and the Judge held it was too general. Exhorting elected members to have the impact on disadvantaged people might have been acceptable – but the words used could have applied to every one of the Council’s cost-saving proposals. The advice did not sufficiently direct the Council to look at the evidence produced in the consultation. Secondly, once the Court gave permission for the claimants to challenge the decision through a Judicial Review, the Council agreed to re-consider the decision.

Unfortunately, the advice given to Councillors “gave a clear impression that they were expected to apply a rubber stamp to the (original) decision.” The Judge said this was pre-determination!

Lawyers may argue about the technicalities of this decision but the underlying thinking is clear. It is not enough just to go through the motions of taking a lawful decision by briefing decision-makers on their legal obligations and then passing the agenda’s resolution or motion ‘on the nod’. Instead, it is far better to undertake some serious consideration. Everyone now accepts that the ‘due regard’ provision implies a duty of reasonable inquiry so those in authority cannot claim that they had no idea how seriously certain people would be affected by their proposals. Note, however, that there is a clear ‘proportionality’ criterion and that the failure to investigate every conceivable adverse impact on service-users will not justify a legal challenge. Knowing how much evidence is enough is part of the skills-set required of our profession.

As the list of Judicial Reviews grows longer and disappointed consultees become ever more ingenious in finding flaws in the decision-making process, it has become crystal clear that the key process is consultation. If Councils like West Berkshire can show that they have talked to and engaged positively with the most affected people, they will have to rely less on being told what the law is. In the case in question, there were 58 responses to the consultation, mostly from parents or carers and there was genuine dialogue with relevant voluntary sector organisations. But the engagement seems to have been done solely by officers, and there are few signs that any Councillors involved themselves. In a telling phrase, members were told “Feedback has not uncovered any further issues which would prevent the Council from proceeding with this proposal”

Most public engagement professionals will probably be fully aware of the pitfalls of the Gunning Principles and the ‘due regard’ obligation, but too many senior decision-makers in public bodies, including the NHS and in parts of central Government, are less familiar with them. Cases like West Berkshire should serve as a timely reminder that standards imposed by Parliament – no matter how challenging – WILL be enforced by the Courts.

TRIGGER POINTS

• The case considered in this Topic will be fully covered in the Institute’s Law of Consultation training course, and also in the in-house ‘Practical Implications’ version of the course.
• In your organisation, have you the in-house expertise to fulfil the duty of reasonable inquiry per the ‘due regard’ provision of the Equality Act 2010?
• Budget-related engagement is at the heart of this issue and Councils often need assistance to ensure they have consulted to best practice standards.
• Are relevant officers in your organisation sufficiently aware of the consultation-aspects of briefing papers that go to a decision-making body? For Councils, are Democratic Services or Member Support staff properly briefed?