Isle of Man: Consultation - To Be Fairly Asked, You, First, Have To Be Fairly Told

Last Updated: 10 February 2015
Article by Hannah Skillicorn

What do you think?

The importance of a dialogue between Government and the public is well recognised in the Isle of Man. A glance at "myGov.im" under the search "Consultation" contains the following:

"Consultation is a vital part of a caring society and an essential means of two way communication between Government and the public. As such, it is very much in line with the principles of openness and community focus endorsed by the Isle of Man Government and Tynwald.

The purpose of consultation is to gather view and comment so that issues are decided, as far as possible, on consideration of all of the relevant information and arguments. It informs the decision making process, raises points to be taken into account, that might otherwise have been overlooked."

In June of 2008, the Council of Ministers produced the "Isle of Man Government Code of Practice and Consultation" document which sets out six consultation criteria which must be followed in consultation documents. The criteria are these:

  1. Consult widely throughout the process, allowing a minimum of 6 weeks for a minimum of one written consultation at least once during the development of the legislation or policy.
  2. Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.
  3. Ensure your consultation is clear, concise and widely accessible.
  4. Give feedback regarding the responses received and how the consultation process influenced the policy.
  5. Monitor your Department's effectiveness at consultation.
  6. Ensure your consultation follows best practice, including carrying out an Impact Assessment if appropriate.

What was intended by the Code is reflected within its introduction... "Ministers have discretion not to conduct a formal or written consultation exercise under the terms of the Code, for example where there is a national, international or operation lead or where the issue involved is very specialised and there is a very limited number of interested parties who have been directly involved in the policy development process. In these circumstances the general principles of the Code should still be followed as far as possible, and the Department should consider how to ensure that the public is made aware of the policy, for example through a press notice or statement on the Department's website. This should state the Minister's reason for their decision."

And further...

"The purpose of consultation is not to be a referendum but an information, views and evidence gathering exercise from which to take an informed decision on the content of proposed legislation or policy."

The current consultations section of the Isle of Man Government website shows ten ongoing consultations, in areas as diverse as inviting comments on the Equality Bill, proposals in respect of new drivers, the draft Central Douglas Master Plan, and the Merchant Shipping (Fees) Regulations.

All discussions between the elected and the electorate are not Consultations. Although not expressed as being a formal process of consultation, 'The Big Debate' was described by the Minister For Policy And Reform, Chris Robertshaw MHK, in the following terms:- "The idea of The Big Debate is to look beyond the next General Election to start talking seriously about what kind of Island we will leave to be inherited by our children and grandchildren. There is no subject more important than this."

In the Isle of Man [and in England] increasingly, both local and national, public bodies are engaging with those who elect them, or who may be affected by a decision they intend to make, by way of a consultation process. The Supreme Court, in England, has very recently in the decision of R v London Borough of Haringey (Judgment given on October 29 2014) reminded those who commence a consultation (in that case, a local authority in England), of the proper requirements for such a consultation process.

A consultation process may be obligatory or be optional because of a Statute, or may arise under the common law. Although some differing principles arise, depending on why a consultation takes place, the necessity that the process to be fair is consistent throughout.

What then, is a fair consultation?

The Background to Haringey

To put matters in context, in the particular matter before Their Lordships, a specific statutory requirement [under a scheme known as the Council Tax Reduction Scheme] required local authorities to consult interested persons, on a draft of that Scheme.

Between August and November of 2012, the London Borough of Haringey purported to consult interested persons, including the residents of Haringey, on the draft of its proposed Scheme, and thereafter, a Scheme was enacted which was in substantially the same terms as the draft that it had circulated previously.

There then followed judicial review proceedings before the High Court, the Court of Appeal, and ultimately before the Supreme Court, commenced by residents of Haringey, who sought to quash this new Scheme, criticising the consultation process that had taken place, as being unfair.

The Haringey resident who appealed to the Supreme Court had, prior to the introduction of the new Scheme, been in receipt of what in England is known as the Council Tax Benefit. In real terms this meant that she previously had been receiving benefits to a total of 100% in respect of her Council Tax, whereas following the new Scheme post the consultation process, she would have been required to pay 19.8% of the full Council Tax rate.

Although Haringey, and Council Tax, may seem a long way away, from an Isle of Man perspective, the relevance of this decision should not be lost on any public body looking to undertake meaningful public participation in any decision making process, by way of consultation, whether or not that process arises because of statutory requirement, or under the common law. It also raises a wider question of when the public is being asked to comment or debate upon proposed changes, what really amounts to an informed debate?

The legal tests

The Supreme Court reviewed the appropriate legal tests and as a part of that process, highlighted the distinction, between a statutory duty of consultation (as existed in the specific facts of this matter) or the common law duty for a public authority to act fairly, when it consulted.

In the Haringey matter, the Court appreciated the local Council was discharging what was described as "an important function in relation to local government finance, which affects its residents generally. The statutory obligation before making a scheme is, "to consult any major precepting authority, to publish a draft scheme", and critically, to "consult such other persons as it considers are likely to have an interest in the operation of the scheme."

In this matter, all residents of the local authority's area could reasonably be regarded as falling into that latter category. In the specific context of that statutory consultation "the purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of the consultation was to "ensure public participation in the local authority's decision making process". (my emphasis added)

Identifying, under a common law duty, what can be considered fair is, as Lord Wilson identified, "not susceptible of much generalised enlargement".

Under the Common Law, a duty of consultation will exist in circumstances where there is a legitimate expectation of such consultation, usually arising from the interest which is held to be sufficient to found such an expectation, or from some promise, or practice, of consultation.

However, when considering what the Courts have called the "prescription for fairness" some headline features do emerge:-

In a matter involving the proposed closure of a home for the disabled, in 2001, Lord Woolf MR said ... "It has to be remembered that consultation is not litigation... the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. It's obligation is to let those who have a potential interest in the subject matter know in clear terms what proposal it is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

In 1995, Simon Brown LJ observed "the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit."

Again, in the English context (although not without interest in terms of Isle of Man connections with London and beyond) in the consultation process concerning airport capacity in South East England, the Government were held to have acted unlawfully in consulting upon possible developments only at Heathrow, Stansted and the Thames estuary, but not also at Gatwick.

Even in matters required by statute, where the requisite consultation is limited to a preferred option, the Courts have made it clear that "fairness may nevertheless require passing reference to the made to be arguable yet discarded alternative options."

This fairness requirement embraces all spheres of life, from air travel, to education. So, in 1988 (in the context of the closure of sixth forms in secondary schools in Gateshead and the proposition being to replace them with a sixth form college) "a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are." (my emphasis added).

Not everyone has to be asked, all the time.

Expectation to be Consulted

Arguments in respect of the right to be consulted are not unknown to the Manx Courts. In 2003 the Staff of Government Division heard the appeal of Bride Commissioners who argued that they had a legitimate expectation to be consulted by a Government Department, prior to that Department granting a sea bed lease and permission to build on the sea bed. They unsuccessfully argued, amongst other matters, that by analogy an established practice existed for on land based planning applications, and that it should extend to sea bed developments. The Manx Court, in rejecting the Commissioners arguments did recognise, however, as had been recognised in England that:-

"a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation."

Decision making has not become open to all, and every step which a local or national government takes does not require consultation. After all, politicians are elected to make decisions. Lord Reed make it clear "there is no general common law duty to consult persons who may be affected by a measure before it is adopted".

Where consultation does take place, the general approach differs from the statutory duty of consultation where much depends upon particular wording and context of the statute, and the purpose for which the consultation is to be carried out.

As the Court identified in Haringey... "the duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public. The identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or hold in public meetings; and so on and so forth."

All of this leads to the entirely sensible, suitably flexible view that "a mechanistic approach to the requirements of consultation should therefore be avoided."

It has to tell you enough

Returning to Haringey, the Supreme Court recognised the practical mechanics involved, in dealing with all other possible alternatives to any proposal, which may have been in circulation and also had regard to the changing circumstances that any particular matter may dictate...

"...... nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection. The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about realistic alternatives, and the reasons for local authorities preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought."

It's good to talk

The flaw in being invited, in any context, to make a decision in the absence of balanced choices and adequate information, is obvious. For a debate to be healthy, those participating in it must appreciate the real context, and basis of what is being proposed. The Courts, in the context of the consultation process, and countless other areas, have been recognising this reality for many years.

All public authorities that seek to engage with the public in a consultation process must appreciate how this "prescription for fairness" applies to that process, including any documents issued, if such a process is to be fair. Simply engaging, through a process labelled 'consultation' with the public, as a step, is not itself enough, in the absence of fairness.

It remains to be seen whether an increased dialogue on matters of general government policy, or specific issues couched as being of significant national or local importance, within the Isle of Man will give rise to more arguments that an increased number of decision making dialogues amounts to an established practice, or indeed, of itself amounts to a promise that if broken, will allow a challenge to any decision taken in the absence of consultation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Hannah Skillicorn
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.