In March 2009, Wragge & Co's Public Law & Regulation team reported that the High Court had, in ruling on judicial reviews involving the Boundary Committee for England, provided helpful guidance on the consultation duties of public bodies.
Now the Court of Appeal – in dismissing appeals from the relevant local authorities - has endorsed certain aspects of that guidance. In particular it has confirmed the decisions of the High Court on:
A.The duty to consult - Public bodies are subject to the public law standards of consultation wherever the relevant statute imposes obligations on them that are redolent of the duty to consult. It is not necessary in describing the obligation for the applicable legislation to use the word 'consult' or its derivatives in order for the duty to arise.
B.Staged consultation – Consultation can be carried out in stages - it is the consultation process as a whole that should be considered in determining whether the public law standards are satisfied. However, where consultation is undertaken in stages, the full package needs to be sufficiently identified as part of the final stage with adequate time allowed after publication for the final part to be considered as a whole and for representations to be made. Unfortunately, as it was no longer a material factor, the court declined to give a definite ruling as to whether (in the circumstances of the individual cases) there had been adequate public consultation.
Nonetheless, it made some important and helpful observations on the process adopted by the Boundary Committee which provide a good insight into the court's thinking on the type of information that may need to be made available to the public and the manner in which it is made available.
More particularly, the court disagreed with the judge:
"that mediation by opinion makers is a proper supplement which was capable of turning inadequate consultation on affordability into adequate consultation". In other words, public bodies cannot rely on media coverage as being a means to adequate public consultation or to expect that such coverage will perfect something that was imperfect.
As to the type of information that should be provided, public bodies can help shape and determine their good practice from the following observations:
"...in a rush to get the financial information into usable shape, the Committee was more intent on covering the ground with local authorities than with the public generally".
"The need to explain the financial side of the draft proposal to the public in an understandable way was lost sight of or not understood".
"We decline to go further than to wonder whether providing, without a short synopsis, several hundred pages of dense material from which the critical summary conclusions may not leap off the page should be regarded as adequately informing the public of the bones of the financial conclusions."