Martin Smith, partner, Field Fisher Waterhouse LLP:
NOTRAG (the No Third Runway Action Group) called it a “Con”sultation. The Liberal Democrat Shadow Transport Secretary called it a “sham”.
The Government’s consultation on adding capacity at Heathrow airport is now over and the Secretary of State has concluded that a third runway is needed. Much as everyone ‘knew’ he would. Does this make the consultation a pointless process, a fig leaf to cover the inadequacies of a Minister determined to get his way? Was the consultation so inadequate as to be unlawful? This is a matter that may ultimately be determined by the Administrative Court, as legal challenge has been threatened.
The success of any such case will ultimately depend on the intricacies of the consultation process. But in the meantime the saga raises an interesting issue: When does a firm statement of policy amount to a closed mind?
The Government’s consultation paper made clear that it supported further development of Heathrow. This led to allegations that the then Transport Secretary had made up her mind already. Whether that is the case may remain to be seen, but the allegation is not fair if it is based solely on the consultation document itself.
The whole point of a consultation process is to seek views on a proposal. The leading authority on this (ex parte Coughlan) makes clear that a consultation document must include “sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response”. The Cabinet Office Code of Practice on Consultation, widely regarded as the template for fair consultation process, also makes clear that consultation papers must “set out proposals and issues clearly…”.
Despite the carping, isn’t this in fact what we expect of our political masters: that they come up with ideas and formulate answers to difficult questions – providing always of course that they listen to and take account of contrary views and evidence?
It remains to be seen whether the detail of the consultation process will withstand any legal challenge, but it’s a cheap insult to say the Government had made up its mind because it set out a firm proposal in its consultation document. That is exactly what it should do. Those who oppose the Government’s proposal had their chance to make a case in response to the published consultation.
Also, it has been criticised for working with BAA to develop its proposal. Perception may be that it is too close to the airports operator to make an objective decision, but wouldn’t it be more worrying if it had failed to try to understand the detail of BAA’s plans? Doesn’t rational evidence-based decision-making require that Government engages with stakeholders so it has, and is able to analyse, the best information available?
Of course, the Government’s consultation on nuclear new build was roundly overturned by Sullivan J in 2007 and it was forced to commence the process anew. On the face of it, though, the Government seems to have learned lessons from that case. It received 70,000 responses to the Heathrow consultation and the conclusion of the process was delayed so it would have time to consider these. That certainly makes it look as if it was taking time to consider objections carefully and that its mind genuinely was open.
Whatever your view on whether Heathrow needs a new runway, wouldn’t it be worrying if sniping about “unfair” consultations became so common that we ended up with unintended results. With an executive that was afraid to set out its stall and ask for comment, for example. Or, perhaps worse, with an executive that dodged making decisions on the key issues of the day because it had been cowed by repeated accusations that each time it presented its policy proposals, it had closed its mind to the opposite view.