The law is an ever-evolving beast. If you are planning a sensitive consultation or are already deep into a consultation, it’s wise to arm yourself with the latest case law and protect against judicial reviews or public challenges.
The list below is not exhaustive but gives a pretty comprehensive insight into the most important consultation case law of 2023. Half of the reviews involved local authorities in some way or another; the other half were mostly challenges to Government departments, several of which resulted in a few red-faced Ministers after embarrassing defeats.
The outcomes of these legal deliberations paint a mixed picture. As often happens, about half of the challenges succeeded, while the others failed. Who wins is seldom a reliable indicator of the significance of a case – much depends upon how the Judge interprets the applicable principles and the weight given to various forms of evidence.
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Consultation law cases in 2023
In approximately chronological order, these are the most relevant cases Rhion Jones examined in 2023, and why…
A late 2022 case (considered in 2023); it was significant because although the parents failed to persuade the Court that the ‘engagement’ was unlawful, the Judge assumed that the Gunning Principles applied, which effectively sets a precedent for the future interpretation of Guidance affecting school academies. Are we moving towards tougher legal requirements for ‘stakeholder engagement’?
Brought by Sarah Leadbetter, this case confirmed that the revised Guidance on inclusive mobility had not been consulted upon properly. Although the Court of Appeal refused to quash the Guidance, the initial finding regarding the consultation holds.
The Court overturned judgments that allowed the Council to grant planning permission for land which was subject to a statutory trust in favour of the local community for recreational purposes; the Council had failed to consult as required by a 1972 Act.
Poor advice was given to Councillors – that they could disregard some consultee responses relating to moral rather than site-specific objections to venue licenses. An otherwise satisfactory consultation became unlawful because key responses were not given conscientous consideration (i.e. Gunning Principle Four).
The Court overturned the Binder decision of 2022, which had ruled against the Dept of Work & Pensions over its disability strategy. Whilst preparing for it, they held a ‘consultation’ but when it failed to observe the Gunning Principles, tried to claim it was only a survey. The High Court disagreed (if it looks like a duck and quacks like a duck…) and declared the consultation unlawful. But in 2023, the Court of Appeal overruled this decision and suggested that the circumstances where the Principles apply may be more restricted than previously thought. Mixed messages on the Gunning Principles, perhaps?
The High Court quashed Regulations to enable the recruitment of strike-replacement staff without consultation. The Government had sought to rely instead on a consultation six years earlier, but the findings had never been published and the Court ruled against it.
Five Councils failed in challenging the consultation on Sadiq Khan’s ultra-low emissions zone, but the case highlighted the risk of obscure technical impact assessments and contested question drafting. Find out what made the ULEZ consultation lawful here.
The Dept of Agriculture, Environment & Rural Affairs failed to disclose the methodology it used to select the preferred option of non-selective controlled shooting of badgers.
Potentially the most significant case as DEFRA was found to have provided inadequately specific information about its plans to improve water quality on a river-by-river basis as to enable a lawful consultation to take place.
A very recent judgment that considers a Public Space Protection Order to restrain the activities of those wishing to protest around an Abortion Clinic. Campaigners failed to show that the Chief Constable had not been properly consulted in person.
Consultation law for communications professionals
There are other cases worth studying, with specific messages applicable in planning, health, and education environments. There are interesting cases on proposals for a massive solar farm, the accommodation of asylum seekers at ex-RAF sites, and levels of legal aid. The law of consultation remains an active area of litigation with no shortage of prospective challenges to decisions where the adequacy of consultation is questioned.
The Consultation Law for Communications Professionals training course is an invaluable bedrock from which to plan and deliver sensitive consultations.
This blog by Rhion H Jones LL.B was first published on 4 January 2024 on consultationguru.co.uk.
Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.
