The ‘pause’ to LGR decisions in the wake of legal advice is a wake-up call for consultation and engagement professionals. Attacking the process as a result of an undesirable outcome is not uncommon but in this case there might be some meat on the bone.
Ironically we already called out the quality of some LGR public consultations at the outset – that argument seems to carry forward to the challenge – that the government failed to properly disclose vital information prior to making determinations. Initial disclosure about anything that could ‘make a difference’ to how stakeholders respond is vital – and that’s why it’s always a good idea to talk about impacts and publish an early impact assessment.
But it seems there is a more obvious, second challenge. Gunning principle four requires decision-makers to give conscientious consideration to what they have heard in the consultation. This can often become a debate about the information provided to those who have to decide and may turn on the evidence available on the way in which those decisions were taken. Complainants at judicial reviews often argue that a public body’s processes might have been acceptable in respect of gathering people’s view, but that somehow those who took the eventual decision were not sufficiently briefed about what was said, and by whom.
The Courts have confirmed that officers may summarise the views of consultees but they must do so in a fair and unbiased way; a Report going to a Council committee need not cover everything but must include the “points of substance”. A failure to report the views of consultees to decision-makers can make the process unlawful.
If Ministers have ignored official (civil service) advice on the resulting configurations and chosen alternative solutions then there must be good reasons. Consultation is not a vote but clearly this signals that something clumsy might have happened, especially if the decision making process was rushed or not well documented.
Whatever has happened the situation is clearly very serious and it will have ramifications for both the courts, the public purse and the planned vesting dates. The quickest fix might be to consult again but with much better clarity and transparency. Perhaps, even, Ministers taken out of the loop and for a committee to debate and decide on the outputs.