GUIDANCE 5.2 - LEGAL ISSUES

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5.2.1 INTRODUCTION

Consultation exercises will generally fall within one of the following categories:

• Consultation which is expressly required by law (eg proposals for traffic orders such as speed restrictions, or proposals to close schools)
• Consultation which is implicitly required by law (eg proposed closure of residential care homes, or where members of the public have a legitimate expectation that they will be consulted before decision is taken)
• Consultation which the Council volunteers to undertake in order to inform its actions and become a better organisation, but is under no legal duty to undertake.

It is worth bearing in mind that the vast majority of legal challenges to local authorities are based on faults in procedure. If the procedure is fair, then courts (believe it or not) are highly reluctant to interfere with the decisions of an accountable local body such as the County Council. Click here for our advice on how to avoid legal challenges in consultation  (18.79 KB)

In the case of the first 2 categories, a failure to carry out consultation properly can leave any consequent decision open to legal challenge. In the last category, a poor consultation process is unlikely to lead to legal challenge, but could amount to maladministration and be referred to the Ombudsman.

5.2.2 GENERAL PRINCIPLES

Where the law sets out the procedure to be used, then the nuts and bolts are fairly straightforward. If you are required to consult the public (e.g. by way of publishing your proposals in the local press giving people 21 days to make representations on the proposal) then breach of this requirement is clearly going to bring legal trouble.

Where consultation is required, implicitly or expressly, there are various principles to bear in mind.

In coming to decisions, local authorities are required (in brilliantly circular legalese) to take into account all relevant matters and disregard all irrelevant matters. Similarly, although local authorities have wide discretion, decisions cannot be so out of line that no reasonable local authority would come to that decision. A decent consultation exercise can help to demonstrate that where the views of the public are relevant factors, they have been sought and taken into account when coming to a decision.

The general principles are not rocket science. The fundamental point is that the consultation process should be fair, you should genuinely seek advice or comments and genuinely consider what comes back. Sham consultations can lead to challenge.

Use the Toolkit:

1. Be clear about who is being consulted, about what, when and why.

2. Sufficient information must be supplied to consultees in order for them to be able to consider and respond. It follows that consultation documents should set out the main information and competing arguments relevant to whatever options are possible, but in an accessible form.

3.Sufficient time should be allowed for considered responses to come back. For statutory consultations, this is a minimum of 12 weeks.

4.Responses should then be analysed with an open mind. This will allow evaluation of the responses before coming to a final decision. If responses are considered with an insufficiently open mind, and the consultation merely an exercise to validate a previously held view, the process will be open to legal challenge.

5.In some circumstances, new alternatives will come to light, which may themselves call for further consultation.

6.Consultation is not a referendum. A decision is not taken just because the majority want it. Public views are a relevant consideration in consultation cases and must be taken into account but not necessarily followed. Evidence your evaluation of responses and the reasons for a decision in the light of those responses.

You may also like to refer to the Cabinet Office Code of Practice on Consultation.

5.2.3 HUMAN RIGHTS ISSUES

Local Authorities must not contravene the human rights protected by the Human Rights Act 1998. Where human rights are engaged, local authorities must generally balance the rights of the individual against the wider public interests of a democratic society.  

This can have specific application eg to the potential closure of residential care homes. The Human Rights Act gives individuals the "right to respect for his private and family life, his home and his correspondence". Caselaw has set out a refinement of the above principles of consultation which should strike a fair balance between residents’ human rights and public interest.

5.2.4 FURTHER ADVICE

Should you need any further guidance on legal issues surrounding consultation, then contact the appropriate person in Legal Services

Simon Mallinson

Head of Legal Services
March 2004