Consultation: don't ignore alternatives to your proposals
Published 30 October 2014
The Supreme Court has considered, for the first time, what needs to be included in a lawful consultation.
Judgment in R (Moseley) v London Borough of Haringey  UKSC 56 was handed down yesterday, 29 October 2014.
The Supreme Court found that the local authority's consultation documents should have referred to alternative options that it had considered and proposed to discard, and should have explained why those options were not proposed.
That duty might not always arise, but in the light of this decision, it would be a brave public authority that decided not to mention alternative options in its consultation documents. Public bodies with consultations coming up - or open now - should consider carefully whether they would withstand challenge in the light of this decision.
The case concerned London Borough of Haringey's implementation of Central Government changes to the way in which council tax relief was granted. Before 1 April 2013, there was a single scheme, paid for by Central Government and administered by local authorities. Since 1 April 2013, local authorities have been required to operate their own scheme. Local authorities were informed that the funding available to them for their new schemes would be lower than that payable under the old scheme. A local authority was under a statutory duty to consult "such … persons as it considers are likely to have an interest in the operation of the scheme".
Haringey proposed to implement a scheme that imposed cuts on the level of relief available that were in line with the reduction in funding provided to the council by Central Government. The consultation documents on Haringey's draft scheme assumed that a reduction of this level in the available relief was an inevitable consequence of the Central Government funding cut, and focussed on whether particular groups should be protected from the cuts, to the detriment of other groups that received relief.
The consultation documents did not acknowledge that the council could have decided to absorb the funding cuts in other ways, e.g. by cutting services, raising council tax, or using capital reserves. The Supreme Court held that not referring to these other options was unlawful.
Readers with a particular interest in administrative law or judicial wordsmithery, may enjoy the different routes their Lordships travelled to reach their decisions. Lord Wilson, with whom Lord Kerr agreed, based his decision on the requirements of fairness. Lord Reed reached the same view by asking himself whether the provision of the information is necessary in order for consultees to express meaningful views on the proposals. Lady Hale and Lord Clarke appear to have thought there was a distinction but no difference between the two judgments and agreed with both.
All judges agreed that there will be circumstances when the discussion of alternatives is not required, for example when that is made clear by the relevant statute, as in the 2011 case R(Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts  EWCA Civ 472. Lord Wilson also expressly held that the requirements of consultation are stricter when a reduction in services or the withdrawal of a benefit is under consideration. However, as noted at the beginning of this note, it would be a brave authority that decides not to refer to alternative options, in the absence of very clear statutory authority that it does not have to do so.
The judgment includes two other key findings.
First, their Lordships judgment expressly endorsed the four classic principles for lawful consultation set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168, (known as the 'Gunning principles' or the 'Sedley principles') namely that:
Consultation must be at a time when proposals are still at a formative stage.
The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
Adequate time must be given for consideration and response.
The product of consultation must be conscientiously taken into account in finalising any statutory proposals
Second, Lord Wilson considered Haringey's approach to reaching potential respondents to the consultation. He considered that all Haringey residents were affected by the proposal, but that those who were entitled to council tax relief (and so would be adversely affected by the proposed changes) 'most obviously had an interest in the operation of the scheme'. That being the case, he endorsed Haringey's approach of sending a hard copy of the consultation documents to those people (36,000 households) and making the consultation available on its website for anyone else who wished to respond.
Finally, the case may well be of interest beyond the scope of consultation exercises, and in particular may have an impact on what must be done to discharge the public sector equality duty. Here too choosing between alternative approaches is a common situation, and there is often a live issue where a spending cut must be made. As long ago as Domb (R ota Domb v LB Hammersmith and Fulham  EWCA Civ 9410 the court was expressing disquiet at being asked to accept a budget cut as a fait accompli, with the only decision to be considered being where but not whether the axe must fall. The entire court were concerned at this, with Sedley LJ in particular posing the question as "there is ...a major question of public law: can a local authority, by tying its own fiscal hands for electoral ends, rely on the consequent budgetary deficit to modify its performance of its statutory duties?" (It might be thought from the terms of the question that he had a provisional answer already in mind.) Although the precise legal context of Moseley is different, it represents a similar scepticism towards public authorities being allowed to limit the scope of their deliberations, and highlights the need to design decision making processes with care from the outset.
This case sets out an important component of a lawful decision-making process, and as the first Supreme Court pronouncement on consultation, will undoubtedly be of interest to senior managers and lawyers in your organisation. It will resonate over the coming months and years, as further budget cuts bite. It is possible to navigate all these considerations, but this case emphasises again the great care that must be taken.