Consultation Law

There is no textbook on the

Law of Consultation!

In fact, the term only emerged following Rhion's collation of the various strands of law that impacted practitioners initiating, commissioning or undertaking public and stakeholder consultations.

Rhion teaching the law Rhion has delivered a full-day comprehensive training course of the Law of Consultation almost 100 times

However, since the well-known Greenpeace case in 2007, there has been an avalanche of High Court cases as Judges have been asked to rule on a wide range of legal challenges to the lawfulness of consultations.

Rhion has published commentaries on a large number of the 200+ judgments affecting consultations and hundreds of professionals have attended training courses he has delivered alongside Elizabeth Gammell and, on occasions, Rosa Curling. As a result, key concepts such as the doctrine of legitimate expectation, the Gunning Principles, pre-determination and intelligent consideration have become familiar to many.

But the law does not stand still, and new cases continually require analysis and best practice advice needs re-appraisal.

Whilst Rhion publishes regular blogs on the more important or interesting Court cases, these are no substitute for understanding the overall legal environment.

Rhion can cost-effectively guide teams to a basic level of understanding or help those with some familiarity to appreciate the finer points and be better equipped to counter claims by campaigners or critics who allege failures to observe the rules.

Latest Consultation Law

news

The W Midlands Police & Crime case judgment has arrived and the High Court has quashed the 'hostile takeover' of the Labour W Midlands Police & Crime Commissioner by the Conservative Mayor, Andy Street. I've just looked at Mr Justice's Swift's judgment and what is surprising is that he found the consultation unlawful because it failed to provide sufficient information about the reasons for and the consequences of the transfer of powers ( a 'Gunning Two' challenge) and NOT the alleged failure to consult at a formative stage ( 'Gunning One') or inadequate consideration ('Gunning Four'). I will need to study this closely and will publish my commentary as soon as possible.
Here is the October 27 judgment in respect of the Badger Culling case in Northern Ireland
As published on LinkedIn this eve 'Everyone's speculating as to whether this Bill will be subject to legal challenge.
My modest offering concerns the 'doctrine of legitimate expectation'
Might it be possible for a credible stakeholder - somebody like Amnesty International maybe - to argue that before the Bill was introduced - Ministers should have consulted informed experts as to whether Rwanda is indeed as safe as the Bill asserts?
A couple of years ago - one of many successful precedents (one of the Article 39 cases) ruled that the Government could not by-pass consulting the Children's Commissioner over important changes to adoption and other regulations. Now this, of course will be Primary legislation, but we need an authoritative ruling as to when pre-legislative consultation is required and when it isn't. Right now it is at the whim of Ministers. We need a better system that reinforces our representative democracy with mandatory consultation for new laws not previously given a mandate through an Election Manifesto.'
29 November. I've published a commentary on the Glasgow Low-emission zone (LEZ) case - which illustrates the Courts role in balancing the rights of winners/losers in difficult behaviour change matters.
20 November. The Environment Agency may shortly need to mount much better and more meaningful consultations on river basin management as a result of a successful judicial review, summarised here. Expect a commentary from Consultation GuRU shortly.
28th October. Just been reading an important case from Northern Ireland. Badger-culling is emotive and highly contested. No wonder that a lack of transparency has led to the cn being declared unlaewful.
14th Sept. Specialist lawyerrs Leigh Day has announced that its client, Feedback is proceeding with a claim that DEFRA acted unlwfully in rejecting mandatory food waste reporting, arguing that it has not responded properly to the 2022 consultation on the subject.
30 July. I've been studying the ULEZ judgment handed down by Mr Justice Swift on Friday. The 5 Councils challenging Sadiq Khan's plans had a weaker case than I expected and no real surprise they lost. However, as is often the case, some interesting insight on the roie of the 2022 Consultation and the standards that applied to it. See Monday's blog.
11 July The Court of Appeal (the Everleigh case) has overturned the Binder judgment of two years ago. This was the case that declared the Government's disability strategy unlawful because the survey it had organised had failed to meet the Gunning Principles. Unlike the Judge at first instance, the Court of Appeal did not regard the exercise as a 'consultation' Rhion's analysis coming soon
28 June: The Court of Appeal today hears the Government case to overturn an important judgment in the 2022 case of Binder - when the National Disability Strategy was decalared unlawful because of a consultation that wasn't properly consulted upon. Watching this!
23 June: Judgment has been handed down in an important legal challenge - R (PM) v SSHD [2023] EWHC 1551 (Admin). This seems to suggest that changes to the relevant Guidance on financial support for victims of modern slavery were unlawful on the grounds of inadequate consultation. Rhion preparing a commentary.
20 June: The tree-felling furore in Plymouth continues. STRAW (Save the Trees Armada Way) continues to pursue a judicial review alleging failure to consult, even though the Council recently changed hands and is now under Labour control. The new Council leader is considering a revised scheme but so far has failed to persuade STRAW to drop the case.
19 June: There is an interesting angle to Liberty’s legal challenge to the Home Secretary’s attempt to extend police powers to restrict public protest through Regulations. The 4^th ground of the Letter before claim alleges that Suella Braverman “consulted a narrow group of stakeholders which she knew would support the principle of her legislative amendments. She did not go on to consult any group which might reasonably be concerned by the proposal to expand the powers of the police to restrict protest activity.”

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