Consultation: new case law a game-changer

Owl reported all these cases as the happened but it is useful to see them all in one place.

Consultation is going to have to mean consultation!

Four JR judgments in fifteen days with profound implications for public consultations! Almost every current public consultation – or those under preparation might be affected by one or more of these important judgments.

https://www.lawgazette.co.uk/practice/appeal-over-criminal-legal-aid-decision-still-on-the-cards/5067256.article

“Fears seafront consultation internet portal could stop third of town having their say”

“Concerns have been raised that plans for an online portal for consultation on the vision for Exmouth seafront could leave 30 per cent of the town unable to have their say.

Hemingway Designs has been tasked with coming up with a vision for ‘phase three’ of the Exmouth seafront regeneration scheme and it was revealed at a town council meeting the seaside specialists will soon be launching an internet consultation website.

At the council’s August meeting, concerns were raised that if this was the only form of consultation, nearly a third of residents in Exmouth would be left unable to have their say.

East Devon District Council (EDDC) has since said there will be hard copies available for those without access to computers.

Speaking at the meeting, cllr Lynne Elson said: “My concern is that the majority of comments will be through the online portal.

“More than 30 per cent of residents in Exmouth don’t have access to online and if they do as suggested by EDDC and ‘go to the library’ they will have to pay as they will exceed the time allowed.”

Cllr Tim Dumper added: “We do need other ways of consulting.

“In the past East Devon (district council) hasn’t always covered itself in glory when it comes to consultation. “This time things are going very well.

“I wouldn’t like to let those 30 per cent or so down. Particularly involving residents who feel very strongly about our seafront and I think it would be wrong not to involve them fully in any consultation.”

A spokeswoman for EDDC said: “Hemingway Design will shortly be launching their survey to hear people’s views and ideas for this piece of Devon’s seaside.

“It will be easy to complete as you can do it online through the portal that Hemingway Design is setting up.

“When the survey is launched if you need access to a computer then you will be able to use the ones that we have in Exmouth Town Hall reception for free or paper copies will, of course, be available.

“The survey is being finalised at the moment and will be available soon.

“There will be an announcement to that effect.”

http://www.exmouthjournal.co.uk/news/hemingway-designs-consultation-portal-plans-for-seafront-development-revealed-1-5653129

“Government to trial citizens juries and mass online polls in local decision-making”

Owl says: as with all these ideas, proof of the pudding is in the eating.

Remember, we are less than a year away from local elections and promises will be poured out until they are over!

And, maybe, it’s just a way of forcing us to make rationing decisions and deflecting responsibility from government policies leading to rationing in the first place

“The government is to trial ways for people to take a more direct role in decisions that affect their local area, with proposals for “Citizens’ Juries” or mass participation in decision-making on community issues via an online poll or app.

The proposal is part of the first Civil Society Strategy in 15 years, which was unveiled today by Tracey Crouch, Minister for Sport and Civil Society.
“Many people feel disenfranchised and disempowered, and the government is keen to find new ways to give people back a sense of control over their communities’ future,” the document says.

“Participatory democracy methods, such as Citizens’ Juries, can make a profound difference to people’s lives: evidence shows that enabling people to participate in the decisions that affect them improves people’s confidence in dealing with local issues, builds bridges between citizens and the government, fosters more engagement, and increases social capital. It also increases people’s understanding of how decisions are taken, and leads to authorities making better decisions and developing more effective solutions to issues as a broader range of expertise can be tapped into to solve public issues.”

The ‘Innovation in Democracy’ pilot scheme will take place in six regions across the country “to trial face-to-face deliberation (such as Citizens’ Juries) complemented by online civic tech tools to increase broad engagement and transparency”.

The publication also says the government wishes to go devolve more power to community groups and parishes. It will explore with the National Association of Local Councils and others the option for local ‘charters’ between a principal council, local councils, and community groups setting out respective responsibilities.

“This could include joint service delivery or the transfer of service delivery responsibilities to local councils, parishes or community groups, the transfer of borough council assets to local councils, or from councils to parishes, and the opportunity for councils or parishes to ‘cluster’, that is to form a consortium with sufficient scale to commission or deliver larger service functions,” it adds.

Other initiatives set out in the Civil Society Strategy include:

Revising the guidance that helps communities take ownership of local assets.

Exploring means of ensuring community-led enterprises which take over public assets or services are able to secure the funding they need.

Improving the use of the Public Services (Social Value) Act 2012 “to ensure that organisations can generate more social value for communities when spending public money on government contracts”. The government will explore the potential for the use of social value in grants as well as contracts, and the suggestion that the Act should be applied to other areas of public decision-making such as planning and community asset transfer. Also, “as announced on 25 June 2018, central government departments will be expected to apply the terms of the Act to goods and works and to ‘account for’ the social value of new procurements, rather than just ‘consider’ it as currently. The Department for Digital, Culture, Media and Sport will lead the way by applying this wider remit to major projects, to be followed by other departments in due course.

Exploring (through the Ministry of Housing, Communities and Local Government) the potential of transfers of public land to community-led housing initiatives, such as Community Land Trusts, by which residents become members of a trust which holds land and housing on behalf of the community.

Unlocking £20m from inactive charitable trusts (those which spend less than 30% of their annual income) to support community organisations over the next two years.

Supporting charities “to make their voices heard on issues that matter to them and ensuring that charitable trustees reflect the diversity of the society they serve”.

Distributing money from dormant bank accounts to independent organisations that will (a) get disadvantaged young people into employment (£90m) and (b) tackle financial exclusion and the problem of access to affordable credit (£55m).

Jeremy Wright, Secretary of State for Digital, Culture, Media and Sport, said: “Our plans stand side-by-side with the Industrial Strategy, supporting its drive to grow the economy, while creating an environment where people and communities are at the heart of decision-making.

“These ambitious plans will harness the expertise of volunteers, charities and business to help people take a more active part in their local areas.”
Tracey Crouch said: “Civil society is the bedrock of our communities. It is made up of the volunteers, youth workers, charities and innovative businesses that work to improve lives and make areas better for all.
“Our strategy builds on this spirit of common good to help create a country that works for everyone. I want people, organisations and businesses to feel inspired to get involved and make a difference.

“Through collaboration, we will unlock the huge potential of this incredible sector, help it grow, support the next generation and create a fairer society.”

http://localgovernmentlawyer.co.uk/index.php?option=com_content&view=article&id=36313%3Agovernment-to-trial-citizens-juries-and-mass-online-polls-in-local-decision-making&catid=59&Itemid=27

Devon CCGs want to merge (but looks like they already did it!)

Owl says: anyone recallveing consulted about this? And surely, if it is for cost-sVing, all previous financial scenarios at the two CCGs must be recalculated. And shouldn’t this be rescrutinised by DCC?

“North East and West (NEW) Devon CCG is hoping to merge with South Devon and Torbay CCG in April next year. Both CCGs have expressed an interest to NHS England to merge the organisations, in what they say is the ‘next natural step’. In May last year, NEW Devon CCG refuted claims it had ‘gone bust’ – though it did have a defecit of £42million in 2016/17.

Last year (2017/18) NEW Devon CCG had a planned defecit just shy of £50million.

It is thought the merger would help both organisations face funding challenges in the years ahead; they have already made a saving of £4million working together in the last year. This has includinged merging the two executive teams and establishing a common governing body and committees.
Executive directors now sit in Devon-wide roles working across both CCGs.

Dr Sonja Manton, director of strategy at the two CCGs in Devon, said: “We have made significant progress working as a health and care system in Devon over the past two years.

“As commissioners (buyer) of health care services for our local population, our two CCGs have worked more closely together for over a year, and this has brought many improvements and benefits such as speeding up decision making and making cost savings and efficiencies of nearly £4million on running costs.

“We have achieved much more together than we would have working separately. “A merger of our two organisations is the natural next step, and we have expressed an interest to NHS England to merge our two organisations from April 2019. “We are working with staff, clinicians, partners and stakeholders to ensure that everyone is involved in the changes as they develop. “This is an important step in our journey to better integrate health and care services to benefit our local communities.

“In Devon, we have well-established joint working arrangements with our local government partners and this will be strengthened as we design a new more integrated approach.”

https://www.northdevongazette.co.uk/news/proposals-to-merge-two-devon-ccgs-1-5642433

Public consultation on public consultation closes in school holidays!

Owl says: Perhaps the first rule of public consultation should be: DON’T CLOSE IT DURING A MAJOR HOLIDAY PERIOD!

We all know EDDC’s predilection for putting in major consultations on controversial planning applications over Christmas – but to close a public consultation (on public consultation) in the middle of the major school holiday beggars belief!

“Consultation on how district council approaches community and stakeholder consultation and involvement will close on Wednesday 15 August 2018

East Devon District Council is currently consulting on its new Statement of Community Involvement (SCI). This is a document, which sets out how, where and when the council will consult on planning matters such as Policy documents, planning applications and Neighbourhood Plans. A copy of the SCI can be found on the East Devon website: http://eastdevon.gov.uk/media/2546869/2018-sci-v4.pdf

The SCI sets out East Devon’s approach to promoting community and stakeholder consultation and involvement in respect to:
• How the council produces future planning policy and engages with stakeholders.
• How the council notifies individuals and organisations that planning applications have been submitted and how the local authority encourages developers to undertake consultation.

The SCI is available for comment until Wednesday 15 August 2018. All comments will be considered by the council and will inform subsequent versions of the document.

Any comments should be marked ‘SCI’ and emailed to:

planningpolicy@eastdevon.gov.uk
or posted to

Planning Policy Team, East Devon District Council, Knowle, Sidmouth, EX10 8HL.

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