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.