Bournemouth case highlights the need for ‘conscientious consideration’ of consultation responses.

This is Blog No 20

When the sexual entertainment venues

policy in Bournemouth was recently challenged, the High Court ruled that some ‘morality-based objections’ could not be disregarded.

For connoisseurs of consultation law, there is much to mull over in Mr Justice Choudhury’s judgment in the case of R (re CDE) v Bournemouth, Christchurch and Poole council [2023] EWHC 194 (Admin). It arose from the adoption by Councillors of a relatively liberal policy on sexual entertainment venues (SEVs) despite a majority of consultees expressing strong opposition in two public consultations.

Such decisions pose real difficulties for local authorities. This week it was reported that Edinburgh Council faces legal fees close to £120k on a legal challenge to  its policy. The Court of Session found in favour of those who objected to its attempt to ban SEVs. In Bournemouth, where several such venues operate lawfully on or near the Old Christchurch Road (see photo), the judicial review put the Council’s licensing policy under the microscope and this involved scrutiny of the public consultations and their adherence to the well-known Gunning Principles

The case turned on what we call Gunning Four – the requirement that decision-makers give conscientious consideration to the product of the consultation. In this case, had they considered all that they should?

For years, public bodies have struggled to demonstrate that they have done so. In 2011, opponents of fluoridation in Hampshire alleged that those taking the decision hadn’t seen and considered their views. And in 2016, the powerful Tobacco lobby tried to persuade the Courts that its ‘expert evidence’ had been disregarded by the Department of Health over the packaging of cigarette products. They lost because there are circumstances when it is acceptable for some consultee views to be given less weight, and in Bournemouth the question was whether the Council had been right to advise elected members that they could disregard objections on ‘moralistic grounds.’

SEVs are legally permitted but Councils have the right to determine where, under the terms of their Licensing process. What this means in practice is that it is reasonable to consider objections to the siting of SEVs in a particular locality and its likely impact on the local neighbourhood, but not their existence per se, Parliament having expressly allowed them.

In Bournemouth, many consultees raised sexual equality-based concerns (SEBs). They mentioned negative effects on male attitudes towards women and girls due to a culture in which women and girls are objectified, commodified, exploited, harassed, discriminated against, and possibly subjected to sex-based violence. On the facts of this case, the Judge concluded that such concerns went beyond purely 'moral' objections. Although the Council had referenced these responses, they were not themselves ‘the subject of conscientious consideration by it and were instead treated as largely irrelevant to its decision.’

What are the lessons for public bodies and lawyers advising them?

• Be very careful in the treatment of consultation responses that may be – or appear to be - only just ‘in scope’; avoid issuing advice that “you are allowed to disregard ..”
• Pay attention to the ‘scope’ of the consultation. Remember that consultees may often misunderstand the exact extent of the discretion that is available to decision-makers, so precision in describing what is open for consideration is important.
• Understand the Politics of Consultation, and how societal values and priorities change faster than legislation. Plan consultations by better anticipating the content and context of the likely debate.

Right now, I have found at least ten Councils that face similar issues, and many are aware that those who respond to formal consultations are not necessarily representative of their entire electorates. They should therefore consider additional methods of engagement and probably reach out to the many stakeholders and interest groups who have an interest in this controversial policy area.

In the meantime, Bournemouth’s experience is a case study in the perils of organising a good consultation but failing to consider its responses well enough.

In the words of Mr Justice Choudhury,

“ I reach this conclusion with some reluctance because the Defendant has undertaken an otherwise diligent and extensive consultation. Regrettably, however, and possibly as a result of construing … (another) ….decision too broadly, the Defendant has consistently downplayed and/or side-lined SEB concerns which ought to have been the subject of conscientious consideration before reaching a final decision.” 

Happy to discuss with colleagues, clients and ConsultationGuRU subscribers.

Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion Jones LL.B has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary.           

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