Very important case law on consultation

This has great relevance to NHS consultations, the wording of consultation comments, the treatment of those comments and the duties and respinsibility of the DCC Health and Wellbeing Scrutiny Committee to scrutinise evidence presented.

It is going to be much easier to challenge flawed consultations.

Those involved in these matters MUST read the full document (see source at end of post. Only a couple of the relevant sections are published here but should be read with the whole document.

“… “Commentary on
R (ex parte Kohler) v The Mayor’s Office for Policing and Crime
[2018] EWHC 1881

This Briefing Note considers the judgment handed down by Lord Justice Lindblom and Mr Justice Lewis on 20th July 2018. It details the circumstances of the case, its wider context and, in particular discusses practical issues which will be of concern to consultation practitioners.

Background

In common with other police forces, the Metropolitan Police has needed to make huge savings in its budget. Unsurprisingly it has led to a review of what premises they occupy and whether they still need over-the-counter services at their police stations.

In July 2017, the Mayor’s Office for Policing and Crime (MOPAC) published a Public Access and Engagement Strategy, a dual-purpose document simultaneously consulting the public about the future direction of public engagement on policing and seeking views on proposals to close or ‘swap’ 37 police counters.

The consultation was heavily criticised, and at the Institute, we published a detailed critique under the provocative title Is this the worst consultation of 2017?

https://www.consultationinstitute.org/worst-consultation-2017/

Some of the complaints were heeded and a revised set of questions emerged three weeks after its original launch.

The legal challenge

Professor Paul Kohler lives in Wimbledon and in 2014, was subjected to a serious assault. He believes his life was possibly saved only thanks to the prompt response by police from Wimbledon Police Station.

The MOPAC proposal included a provision for that facility to be transferred elsewhere in the London Borough of Merton – to Mitcham, so that the site at Wimbledon could be sold and generate capital receipts. These in turn, according to the consultation document, would help the Met Police fund technology improvements needed to support the case for changing public access and reduce the traditional reliance on police counters. …

The Kohler case spells an end to the practice of sending decision-makers a summary report (or an unreadable tome) with a message ‘Don’t worry, there’s nothing here to stop you from going ahead!’. If a failure to consider a specific argument can spell illegality following a consultation, someone somewhere has to decide what might constitute such an argument. Who can be trusted to decide?

The Consultation Institute View [on the case]

• The Kohler case is a game-changer, placing the Gunning Four Principle of ‘conscientious consideration ‘ at centre stage. There have been few comparable cases, as flawed consultations have, in the past failed the pre-determination or the sufficient information tests. It remains to be seen if the judgment opens the door to more claims that decision-makers never properly studied consultee submissions. It could happen!

• One consequence is that campaigners and other smart stakeholders will structure their comments to ensure that they cannot easily be summarised, and may specifically seek assurances that their submissions will have been read by decision-makers.

• To respond to such pressures and to safeguard themselves, consultors will need to look again at their data analysis practices, possibly strengthening the independent element both in analysis and in reporting to decision-makers. They will also need to be better at political risk assessments. Independent Quality Assurance becomes even more attractive for controversial consultations.

• The case for Public consultation hearings is further strengthened, as decision-makers will be able to prove that they heard and understood particular arguments. …”

Full document here:

http://files-eu.clickdimensions.com/consultationinstituteorg-alksu/files/briefingnote21-mopac.pdf

One thought on “Very important case law on consultation

  1. Sorry Owl, but I fear you are living in a fantasy world if you think that EDDC, DCC or the CCG will take ANY notice of this.

    They only need to worry about being criticised for failed consultations if someone starts a judicial review, and due to the extreme costs of these that is highly unlikely.

    So we should expect them to continue to ignore the laws – after all, in many recent examples, Tories apparently believe that laws are intended only to apply to others and not themselves – and do exactly what they like in the sure and certain knowledge that all the other checks and balances and ways for the public to hold them accountable (like the Audit Commission and that Local Government Standards Body and the neutering of Ombudsmen) have been steadily dismantled over the last few decades precisely in order to allow this to happen.

    Democracy? What democracy?

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