Consultation

June 17th, 2011

The advent of academies, and new admission patterns which may result, could lead to school reorganisations on a considerable scale, particularly in areas which already have significant falling rolls and surplus places.  Worthwhile keeping an eye, therefore, on the Courts’ current approach to consultation obligations. 

The cases, over the last couple of days, of R ota Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1532, 16th June 2011, at paragraphs 21-26, and R ota Robin Murray & Co v Lord Chancellor [2011] EWHC 1528, 16th June 2011, at paragraph 46-47, give some useful guidance.   They were both about the closure of magistrates’ courts, but they remind us that consultation is not negotiation, so that, generally speaking, there is a definite limit on the number of options about which an authority has to consult.  

In the former, the Divisional Court explained R ota Medway Council v Secretary of State for Transport, the Gatwick expansion case, as being the exception and not the rule.  In Medway, the government consulted on the future of air transport, including the possibility of expanding existing airports by building new runways, but, as the Court explained in Vale of Glamorgan, the government:-

“expressly stated that it would not include in the consultation process any options for new runways at Gatwick Airport. One of the grounds of challenge was that at some stage the question of future runways at Gatwick would have to be considered. If that were to happen after Government policy had been formed, it would make it far more difficult in future successfully to overturn that policy whereas if that issue were considered at the stage of forming policy, it would ensure a fair and equal playing field as between competing proposals. Maurice Kay J, as he then was, accepted that submission. The issue of Gatwick would almost certainly emerge at some stage and it was unfair to structure the consultation process in a way which in practice was likely to deprive the claimants of their only realistic chance of arguing in favour of development at Gatwick. The judge thought that once government policy was formed, they would face an insurmountable hurdle in running that submission.”

 Of course, the Vale of Glamorgan and Robin Murray cases don’t affect the requirement to abide by the so called Sedley principles i.e. the requirements that (1) consultation is undertaken when the proposals are still at a formative stage; (2) adequate information is given to enable consultees to respond properly; (3) adequate time is provided in which to respond; and (4) the decision-maker gives conscientious consideration to the response to the consultation.

“Conscientious consideration” will include consideration of different options put forward by consultees in response. So if that happens, the consulting authority will have to consider the option even though it did not consult about it.  And if it decides to modify its proposals so that they are materially different from the options originally consulted about, it may have to re-consult.

Peter Oldham QC

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