In The Vale of Glamorgan Council v The Lord Chancellor and Secretary of State for Justice, the Council challenged the Lord Chancellor’s decision to close a magistrates’ court in Barry and merge its operations with those in Cardiff. This case, and also the High Court’s decision in Robin Murray & Co Ltd v The Lord Chancellor and Secretary of State for Justice [2011] EWHC 1528 which concerned a challenge to the closure of Sittingbourne magistrates’ court, gives some useful guidance on the courts’ current approach to consultation in circumstances where local authorities are required to undertake a consultation procedure before implementing service changes that will affect local service users.
The obligation to consult:
There are in general two sources of the obligation to consult:
- Statute (which may express the obligation expressly or impliedly).
- The common law in circumstances where fairness requires that parties with an interest in the decision must be consulted.
It is therefore important for an authority to be clear whether it is carrying out a formal consultation process that has to comply with specific statutory requirements (such as consulting specific bodies) or whether it is a voluntary consultation on specific proposal changes.
Background to the consultation
On 23 June 2010, as part of the government’s intention to close 103 magistrates’ courts and 54 county courts, a written Ministerial statement announced that a consultation exercise would be undertaken throughout England and Wales. Following that statement, sixteen consultation papers were published for the fifteen areas of England and for Wales to which some 2,500 responses were received. Various responses were submitted stating why a decision to merge Barry magistrates’ court with the Cardiff magistrates’ court should not go ahead including that:
- The Cardiff magistrates’ court did not have capacity to receive all the work from Barry.
- Barry magistrates’ court could be utilised more fully by introducing tribunal work.
- The magistrates’ court at Barry was modern and had been recently refurbished at significant public expense.
- Closure of Barry magistrates’ court would leave the largest town in Wales without a court.
Despite the various consultation responses received, an announcement in Parliament on 14 December 2010 as to which courts would close included Barry magistrates’ court. The Vale of Glamorgan Council therefore issued a High Court challenge to the decision, arguing that the Lord Chancellor:
- Failed to consider alternative means of achieving the increased utilisation of the courts at Cardiff and to consult about any such alternative scheme, therefore predetermining the consultation outcome.
- Failed to give proper weight to a range of considerations, including the fact that the Barry magistrates’ court was highly successful and that considerable expense had been incurred in its recent refurbishment.
- Failed properly to give proper consideration to the aggregate cost on the public purse.
- Gave inadequate reasons for his decision.
The High Court rejected the council’s submissions on the basis there was no general principle that a minister entering into a consultation must consult on all the possible ways in which a specific objective might arguably be achieved. To impose such an obligation would result in the consultation process becoming inordinately complex and time-consuming. As stated in R (Medway Council and others) v Secretary of State for Transport (a case about the government’s consultation on the future development of air transport) it was permissible for the Secretary of State to narrow the range of options within which he would consult and eventually decide. What has to be remembered is that consultation is not a negotiation, but a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action.
What is clear from the judgments is that the Lord Chancellor was entitled to identify the issues for consultation in the way that he did. There was no express statutory duty to consult and, subject to considerations of fairness, it was for the Lord Chancellor himself to determine the scope of any consultation. In a context where he was rationalising the court estate, he was perfectly entitled to conclude that he would consult only about proposed closures. There was nothing irrational or unfair about that, particularly given that this was part of a wider process of national consultation in which urgent steps to make costs savings were being implemented. Alternative schemes could have been suggested in relation to most, if not all, of the 110 courts originally proposed for closure, which would impose:
“An impossible duty on the Lord Chancellor if he had to consult on all the alternatives identified with respect to each court or even if he had to consider each proposed alternative to indicate why he thought that further consultation would be inappropriate” (paragraph 25, Vale of Glamorgan judgment).
The cases are a reminder that in general there is a limit on the number of options about which an authority has to consult. However, the decisions do not affect the requirement to abide by the Sedley principles when consulting. These are that:
- Consultation must be made at a time when the proposals are at a formative stage.
- Sufficient reasons for the proposal must be given to allow intelligent consideration and response.
- Adequate time must be given for a response.
- The product of the consultation must be conscientiously taken into account in finalising proposals.
PLC Public Sector will shortly be publishing a practice note by Sam Grodzinski QC and Tessa Hetherington of Matrix Chambers on the duty to consult. In order to provide some guidance as to the likely approach the courts take in dealing with consultation challenges, the note considers relevant cases and extracts the key factors of fairness that a public authority should have in mind when determining whether fairness requires consultation and the form that such consultation should take.
More information on consultations can be found in our Practice note, Decision-making by public bodies and avoiding legal challenge. For information on the judicial review procedure, see our quick guide.