Welcome to the first edition of consultation latest law, our updating
service. It is primarily aimed at those over 1000 of you who have attended The
Consultation Institutes Law of Consultation course which we've been
running since 2012. For those of you who are yet to attend maybe what follows will
convince you that there is much to learn. My name is Elizabeth Gammell and I work
with Rhion Jones and the team here at the consultation institute headquarters
to monitor key developments in the ever-changing law of consultation. In
this update we will cover a significant judgment on the lack of consultation
involving the NHS and local authorities in Hertfordshire. Secondly we will review
the case of Horton Hospital in Banbury and the important issues it raises, not
just for the Health Service and that one's going to appeal. Our third featured
case is the important judgment on the politically explosive row in Haringey
over a massive redevelopment and that one's relevant to planners as well as
consultation specialists and finally we've invited Rosa Curling of Leigh Day to
discuss the issues we expect will arise in the forthcoming appeal in the case of
the Dubs amendment obliging the government to
admit young refugees. For these four cases we have approached the lawyers
involved so you will get their perspective
and at the end of this edition I will ask Rhion Jones to summarize the
implications and we will discuss what our members should consider in the
forthcoming months. In the spirit of best practice consultation we would be very
interested to hear your views on this new online service and receive
suggestions of information that you would find most useful. One of the most
significant Court decisions in recent months was in favor of campaigners
fighting to stop the closure of a respite center for disabled children in
Hartfordshire. It's called Nascot Lawn and we went to talk to Alex Rook of Irwin
Mitchell who fought the case......... the decision was taken quite some time ago
and there was an initially a legal dispute about whether or not the CCG
had a power or duty to provide these services for the purposes of this
conversation about consultations is not necessarily that relevant but what it
meant was we got all the way to literally the week before a two-day
trial when the CCG agreed that what they'd done was in fact unlawful and
that they would retake their decision and they then reached their decision and
decided to close the Nascot Lawn again and there was then a whole second
judicial review which then did go to trial at which we were successful and
the decision was quashed a second time as to whether or not the CCG had
followed a local process in order to close the service and there were a
number of grounds with which we said the CCG had not followed lawful process a
significant part of that was about consultation but that also that was
somewhat unusually was kind of hived off in two different ways one was have you
properly consulted with the local authority here and another was have you
probably consulted with my clients the parents and interested people and it was
the first of those two arguments that the court found in our favor and agreed
that the CGG had not properly consulted with the local authority before they
took the decision and therefore it was quashed. We were unsuccessful in the
second of those arguments because the court found that they had undertaken
what the court called as an engagement process as opposed with consultations
but because we won on the first one the decision was quashed.
It's also probably worth saying that Nascot Lawn is still open and still
running and that consultation between the CCG and the local authority is now
taking place and with some months down the line and the outcome of that
eventually could be that it gets referred to Jeremy Hunt the Secretary of
State who can ultimately make a decision and he'll make a merits based decision
that we as lawyers aren't able to take about whether or not in fact it's a good
idea to close Nascot Lawn....... is it the first time a court has ruled against the
NHS for breach of the duty to consult overview and scrutiny?....... I'm certainly not
aware of many cases like it I think the reason for that is the obligation
for a Health Authority to consult with a local authority is pretty clear-cut the
reason why the CCG were found to have gone wrong in this case was because the
CCG argued that Nascot Lawn wasn't a health service. Nascot Lawn is a
service which is run primarily by nurses and was funded by the CCG and so
therefore their argument was although it looks like health service effectively it
isn't. Now the court wasn't convinced by that and indeed a significant part of
our argument was that the needs of these children was very much required a high
level of care that kind of falls in in that health side of the boundary. The
court was with us on that and said Nascot Lawn is a health service, the CCG
then tried to argue well if it is a health service we have in fact complied
with the regulations but the regulations are pretty tight and the court made
that very short shrift saying you clearly haven't done and therefore the
decision needs to be quashed........ It was Alex Rook who instructed the
users of Hartley's Day Centre back in 2014
when they successfully challenged a
closure by Shropshire county council which had failed to observe the common
law duty to consult. We asked Alex if Nascot Lawn was different
one of the strange quirks of the Nascot Lawn decision is that because we
won on one ground and therefore the decision is quashed it would be academic
to try and appeal any of the other grounds. What the CCG said in this case
is that they didn't have an obligation to consult they had an obligation to
enter into an engagement. That was something they were absolutely explicit
about even in the meetings they had with families they were asked you know why
you're not consulting they were very clear we're not consulting with you
we're engaging with you. I have to say it was never clear to us and this is part
of what we said to the court exactly what the CGG thought the difference was
and what the consequences of that difference are but the families were
told in no uncertain terms you are not being consulted with now that the
case of you refer to LH & Shropshire was the case in mind that went to the Court
of Appeal and interestingly we lost in that case on the high court and then won
in the court of appeal as well and the Court of Appeals said in that case where
you are withdrawing a service that triggers that duty to consult. Now we say
that falls absolutely squarely within the circumstance of Nascot Lawn, this
was a service that my clients had been attending, some for over ten years it
was being closed there's no question it was being withdrawn and therefore LH &
Shropshire says absolutely squarely you must consult and that obviously is a
point that we were unsuccessful on and Mr Justice doesn't refer to
LH & Shropshire in the judgment even though it was made very clear that, that
was the the heart of our argument and that would have been a ground that we
would have appealed at in the court of appeal had we not succeeded on other
grounds....... That was a case about changes to services straddling the NHS and local
authorities. Our next case has been a long-running battle by campaigners
seeking to prevent a reorganisation of hospital services in Banbury. A judicial
review at the end of the year found for the NHS and it will now go to appeal.
We asked Rowan Smith the instructing solicitor from Leigh Day to tell us more....... so
the background to the Horton case is that we represent a group of campaigners
who for the last decade or so have been trying to protect services at a general
hospital in Bambury Oxfordshire. The most recent threats to the hospital came when
the CCG decided to consult on changes, three of which were contentious
downgrading of maternity so removing consultants from obstetrics, closing beds
and also downgrading the urgent care center. The fundamental error we say is
that the CCG splits the consultation into two phases the first on the three
areas I just mentioned opened in January last year but the CCG said don't worry
about all the other services we'll come back to you later once we've removed
these services first. Ordinarily wouldn't have been an issue but for
several crucial things, the first being that in a General Hospital like the
one in Banbury, the services are so dependent on each other, the staff,
the skills, the expertise and also the services in the second phase to do
with A&E and Pediatrics were clearly connected with maternity and urgent care
provision. The High Court judgment dismissed the grounds on the
consultation having acknowledged that the consultation was flawed but then
went on to conclude that that flaw wasn't serious enough to render the
consultation unlawful. The problem was that the CCG actually produced evidence
on the final day which seems to have swayed the judge into thinking that the
interdependencies between the two sets of services wasn't strong enough so even
if there were flaws in the consultation then consultees wouldn't have
been able to say anything
that would have changed the CCGs mind......... Now interestingly the independent
reconfiguration panel report that came out took a different view and criticized
the NHS for the proposed two-phase consultation and ordered the parties to
think again. In the meantime campaigners have lodged an appeal. We now turn from
health to a major urban regeneration scenario. There has been a long-standing
political row about the London borough of Haringey's plans to build thousands
of houses in a commercial partnership with lendlease. The Labour Party was
bitterly divided and it led to the ousting of Haringey's council leader
Clare Cober a few months ago. In the meantime Mr. Peters went to the High
Court seeking to prove that there had not been adequate consultation. He was
represented by David Wolfe, one of the top QC's in public law. The Institute asked
him how he came to be so interested in the subject and about the Peters case.
I've been working on consultation cases all my time as a barrister and indeed in
some senses it was being involved in a consultation in a previous life that got
me interested in the law in the first place so I was a councillor in local
government and we were involved in closing some care homes back in the
early 90s and it was the process of that consultation that was one of the
triggers for my interest in being a lawyer so I've carried that through and
local government consultation legality has been a theme of my work for 25 years.
We were refused judicial review permission after a several day hearing
and it's now subject to application permission to appeal to the Court of
Appeal so it's ongoing. In terms of the underlying issue in terms of
consultation, what the judge held was that the local authority should have
consulted the section three best value duty required them to consult they
argued that they didn't need to consult at all and rejected that but he then
said but that section 3 obligation had arisen two years earlier that Mr.
Peters was too late to challenge the 2-year earlier decision and therefore
that was the end of it. To my mind that's not a right
reading of Nash and it's not what the law requires because it leaves you
with a very odd results which is that if you've got a process of decision
making which is multistage as the Haringey process was, if somebody comes
along later and says well the obligation to consult arose at this point or that
point and nobody's challenged within three months at this point at that point
then somehow the consultation obligation withers away, now I don't think that can
be right where you've got a multi-stage process like Nash because it
means that you'll get to the end of the process with a local authority not
having undertaken the consultation simply because nobody brought judicial
review at the right moment in time and I don't think that can be right. Mrs. Nash
wasn't particular concerned about the detail of the choice of particular commercial
provider or the detail of the contract and yet that was the decision she challenged.
She was really indeed concerned about the decision that had been taken at a
much earlier stage so I think the situations are very different and I
would expect different results out of the court of appeal............Even though the
scheme is politically dead in the water so to speak, we understand that there
will be an appeal and it will be based on the fact that the issues which upset people
in Haringey, things like the commercial terms and the accountability
to counselors could not possibly have been consulted on two years ago because
no one knew what the details were. We shall watch with interest. We will
discuss one more impending appeal. It concerns the help refugees charity who
failed to persuade the courts that consultation on the Dubs
amendment was inadequate. Rosa Curling, the instructing solicitor tells the story.
We were instructed by help refugees which is an organization which
provides amazing humanitarian assistance across Europe particularly to children
but also adult refugees across Europe and we were instructed by them because
when the Calais camp was being pulled down by the French, it was clear there
was going to be a huge number of particularly young children, minors left
on the streets of France. The Secretary of State had a duty on her
to specify a certain number of children to be relocated from Europe into the UK
and the number that she had to determine that could be relocated to the UK had to be
done in consultation with local authorities. So this case has changed
quite a lot during the course of the proceedings but has become now a case
which is about whether the consultation that the Secretary of State undertook
with local authorities under Section 67-2; whether that consultation process was
lawful. We took the case to the High Court
there was a divisional Court who looked at the case. We argued that the
consultation process was unlawful, sadly the divisional court disagreed
with us but we've now been granted permission by the Court of Appeal to
appeal that judgment and there will be a hearing in the summer of this year.
In our view the consultation that took place did not comply with the well-known
Gunning principles, the public law principles that determine whether a
consultation process is lawful or not. One was that she failed to give
sufficient information to consultees so that they could effectively and
intelligently respond to her consultation and two, we say that she
failed to conscientiously take into account some of the responses she
received. In relation to Scotland there was a huge confusion by Kosler who was
in essence a kind of middle person between the local authorities in
Scotland and the Secretary of State about whether they had to respond to the
consultation document about section 67 and the numbers of children that they
could basically accommodate and we say that the secretary of state perhaps
inadvertently but nonetheless did fail to make clear that actually Scotland
needed to respond to the letter that she sent out. There was a confusion to do
with a different resettlement scheme called the National transfer scheme and
there was a misunderstanding which meant that almost all local authorities in
Scotland did not respond to the consultation and we say the duty on the
Secretary of State was to properly and intelligently
and sufficiently explain to the consultees all of the information they needed
in order to respond and she failed in that regard. Similarly there is an
argument about the fact that the consultation closure date was very
unclear. It was changed by the secretary of state without notice to anybody else,
it was also a very very short period of time and she refused to take into
account the numbers offered from local authorities after the closure date that
she chose. So again we say she failed to properly tell people that they could
effectively respond to a consultation the deadline by which they had to
respond. The number that's been determined, either that number will stay
and there will be a re-consultation in any event to see if there are
additional places. We think from the evidence that our client has managed
to obtain that there are additional places which were either offered up and
not counted by the Secretary of State or in fact for various reasons weren't
offered up so we think if a consultation process was to happen now we would find
the number of 480 which is the current specified number would be increased.
We wonder if she is right, time will tell. So if that is the evidence what are the
Institute's views and for this I've invited Rhion Jones, our founder director
to guide us in the interpretation of these cases.......Rhion ,we've had some
fascinating insights from the lawyer's but why does the Institute find these
cases so important? Well they're all different. The Nascot Lawn
case is really quite interesting because it's a case where it establishes once
and for all that you're going to lose a judicial review if you haven't consulted
the health overview and scrutiny, that's a very important principle. I think Alex
Rook needs to be congratulated, he has an amazing track record in consultation
cases. He was the instructing solicitor behind the Supreme Court case of Haringey
a few years ago but of course the case have stopped short of saying that
you've got a consult whenever you're closing something which
is what his previous case with Shropshire had established. A little
question mark there and we are interested to see which way the common
law goes on that duty to consult. Moving to Horton Hospital, we find ourselves in a very
familiar world where the NHS is facing case for change after case for change,
they are lengthy, they are complex so what's happening in Horton? The point about
Horton is that there is going to be a further consultation and further
reorganization down the road but this particular consultation was about part
of it. So it's really a timeline issue. Can you split two consultations without
the one compromising the other and the court said yes you can. Actually the
independent reconfiguration panel came out and said no you can't so you have
this problem that campaigners now have two choices, do they pursue a legal
judgment saying the consultation was unlawful or do they go to the Secretary
of State to see if the independent reconfiguration panel thought it was
unwise. Now in this case the court said it's okay which is why it's up for
appeal and the IRP said it wasn't okay and referred it
back. Now in a strange way if I can move on to the Peters case because that's a
different case that's about planning a suburban regeneration but actually it's
the same issue of when do you consult on a particular issue and Mr. Peters lost
his case because it was ruled that by the time they came to challenge the
plans with Lendlease, controversial as they were, political as they were. By that
time the decision was taken years ago and if you're gonna challenge it, you should have
challenged it earlier ......and that echos the Nash/Barnet case that is always a centerpiece of our law
of consultation course.......Precisely, that was about local authority budgets and the
decision to outsource having been taken two or three years earlier than Mrs.
Nash bought her case in 2013 so both of these are about the same thing. At what
stage is it appropriate for you to be able to launch a successful challenge........ No
one can be failed to be moved by the plight of those children in Calais, the
refugees but isn't this actually somewhere in the world of politics?
well bear in mind Windrush and all the other issues. Amber Rudd having lost her job
over it but when she organized the consultation about the number of
children being taken in. The problems I think were at official administrative
level .I mean there was a big screw-up with the Scottish Council's I think most
English councils didn't realize they were supposed to answer the consultation
either so when that goes on appeal there could well be a lot of scope for
the Court of Appeal to take a different view and I suspect Rosa Curling's
case will be quite a powerful one but you're right it's really in that
twilight zone between politics and consultation which you and I know well.
Well we've just spent three years writing about it and the book is coming
out in July so the politics of consultation has many stories like this
and this would be were we to do a second edition definitely another one in
it .........the point of course being that the most politically charged issues often go
to law and it's very often the consultation that is
one of the weakest part of the decision-making process as I think the
health refugee case will show. You're quite right, we have a lot of that in the book don't we.
So let's move forward to where we're going to go next
this has been our first update. We know we've got a summer which is going to be
full of new cases to look at. I suppose the highest profile simply
down in the southeast will be the London case of the Mayor of London having done
a consultation on closing police counters, the Institute having said it
was one of the worst consultations of the year that goes to the High Court in
the next couple of months, that's going to be high profile. There is a case about
an academy school called the Eko Trust which people probably haven't heard of
yet but it will echo around the courts in a few weeks time. Then we have some
planning cases coming up, one is in Liverpool with the Ringrose Park.
should they, shouldn' they, have expected highways England to build a tunnel that that's
gonna be interesting one and in Northern Ireland and we declare an interest
because I think we've been advising on this in Northern Ireland there is a gold
mine being proposed that is fiercely opposed to by some of the residents and
that's going to go to judicial review in June. In Sunderland we've heard of one
In Dorset we've heard of one and of course in the news was Calderdale
because there's been another IRP report that has bounced that one back as
between the respective merits of Halifax and Huddersfield and the very
controversial plans they've had there......... so I think our next update is going to be a
full one and please watch out for it because we hope you've enjoyed this one
but there will be subsequent ones for you to have and find of interest Thank You Rhion.
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