Background

Both cases related to the proposed reorganisation of local government emanating from the government White Paper - Strong and Prosperous Communities.

This was published in October 2006. At the same time the Secretary of State invited local authorities to submit their proposals for unitary local government. In both cases the relevant local authorities responded to the invitation by submitting proposals for the establishment of a new unitary authority in their respective areas.

Such proposals were to be judged against five criteria- one of which was affordability. After separately reviewing each proposal in question, the Secretary of State concluded that neither of them met or was likely to meet all five applicable criteria (in particular the 'affordability' criterion). In both cases, in accordance with the relevant procedures, she asked the Boundary Committee to advise and put forward an alternative proposal.

The committee duly considered and in relation to each case put forward its alternative proposal.

In each case the interested (affected) local authorities launched judicial review proceedings, which among other things, questioned the validity of the 'consultation' exercise undertaken by the committee. The arguments raised were that the committee (i) failed to comply with its duty of consultation (ii) acted irrationally in consulting on one of the five criteria (namely affordability) at a separate stage to the others, and (iii) failed to consult the public in a meaningful and timely manner.

Statutory duty to consult

Section 6 of the Local Government and Public Involvement in Health Act 2007 requires the committee to publish its proposals, take steps to inform interested parties about the draft proposals, and take account of any representations made.

The committee (and the Secretary of State) submitted that the statute was deliberately drafted using vague language in order to avoid giving rise to a statutory duty to consult.

However, the court held that it would be 'splitting hairs' to point to the absence of the word 'consult' and use this to suggest that the committee's obligation to consider the views of interested parties should therefore be somehow different from what would ordinarily arise. There could be no question that the statutory language imposed a duty to publish clear and sufficient information, seek views at an early stage, and take conscientious account of these views. This was all redolent of the public law standard of consultation.

Staged consultation

In both Breckland and East Devon, the committee's consultation was split into two stages; issues concerning affordability were separated from the main exercise and consulted on later as an independent issue. The committee reasoned that this would avoid placing an undue burden on local authorities at an early stage of the consultation process. There was also a need to collect detailed financial information.

This 'staged' approach was first approved in Breckland where it was judged that the committee has discretion as to the phasing of different aspects of its enquiry. It is sufficient that each issue is considered at some stage within the consultation period. The court held that the consultation requirements will be satisfied "as long as a judgement on affordability is reached so that the advice can be given". In other words, the consultation process should be considered as a whole.

The view was challenged in East Devon where it was argued that splitting the consultation was confusing to the public and would lead to greater apathy towards the process. It was also argued that as a matter of law, in order to be a 'draft proposal' the document issued by the committee must consider all five of the applicable criteria together. The committee's initial draft proposal did not consider affordability and should only therefore be considered as a partial proposal.

Despite these arguments, the court upheld its earlier decision. It was valid for the committee to defer consideration of affordability until after the publication of the draft proposal. This decision was considered rational because it resulted from a desire to avoid placing an undue burden on local authorities and because of the need to collate necessary financial information from them.

Public consultation

Section 6(4)(b) of the Act requires the committee to consult 'people who may be interested' in the proposal.

In Breckland, the court stated that in cases involving a significant public interest it would be appropriate for it to undertake an 'enhanced scrutiny' of the quality of the consultation process.

In East Devon the local authority reiterated this point, and the court agreed with its submission that the committee should not narrowly limit its consultation exercise or confine it to those people who somehow qualify as 'expert' but should open it to the wider public.

East Devon then argued that in order for the consultation to be truly open to the public at large, sufficient information must be published in a timely manner and that in relation to the affordability issues this had not happened.

The committee had placed the relevant information on its website without any indication as to how the public should or could respond. Also, the information had not been converted into a format which would be readily accessible to a normal member of the public. East Devon argued that this amounted to a failure to properly consult with the public.

In considering the matter the court said that the law must recognise the realities and imperfections of the democratic process and that consultation processes 'may be tangled and untidy'. It must be recognised that, in parallel with the formal consultation process, the public are provided with information and ideas through a variety of sources including local media, council leaders and so forth.

Furthermore, with complex issues such as affordability, the process of mediation and consultation will often produce a bottom line which can be readily understood and responded to by the public. For example, in this case, it was estimated that the committee's proposal would save £29 million over the first five years.

Against this backdrop and in particular the publicity attracted by the issues in the case, the court ruled that the committee had in this instance fulfilled its obligation to publish sufficient information in a timely manner.

However, it also suggested that the committee may in light of lessons learned wish to review its procedures going forward.

Conclusion

  1. When a statute imposes any obligations which are redolent of public law consultation, it should be read as creating a duty to consult. This statutory duty arises irrespective of whether the word 'consult' or its derivatives are used in the legislation.
  2. It is open to public bodies to hold consultations in stages. As long as adequate information is published in a timely fashion, this will be sufficient. Of course, this is subject to a test of rationality, but where the staging of a consultation is designed to avoid placing an undue burden on consultees, this will be usually be sufficient to indicate a rational purpose.
  3. Public bodies undertaking consultations must have regard to who is to be consulted. If the matter is one engaging the public interest, the general public should usually be consulted even if the statute gives the public body a discretion.
  4. Where the general public are being consulted, a public body must ensure that information is available in a manner and form that is understandable and meaningful. This may include distilling the information down to a 'bottom line'. However, it is legitimate to take account of the wider public debate which may occur through the other channels such as the press and public meetings.