Earlier this month, the Chancellor of the Exchequer (John Healey MP), Secretary of State (Louise Haigh MP) and the Attorney General (Ellie Reeves KC MP) issued a Letter to all ministers, setting out the Government’s proposals to reduce “administrative frictions” which have slowed decision-making and policy delivery.
Policy position
The letter confirms ministers will be “bold and ambitious” in the decisions taken and the reforms made. The letter underlines the democratic mandate that ministers hold, and sets out three key messages to enable a “confident and ambitious government”:
1. consultation should be undertaken less frequently;
2. ministers will decide how to act and may do so where the legal risk is high; and
3. scope of judicial review should be limited.
Fewer consultations
“Consultation culture has turned a sensible mechanism for sourcing external input into an industry of dither and delay.”
The letter reasserts that there is no general duty of consultation, noting that there are other ways for participation and engagement, and that ministers should ordinarily be able to make decisions and proceed with implementing them.
The letter suggests that formal consultation should be limited to those situations where there is a statutory requirement to consult, where it would be conspicuously unfair not to do so, or where ministers consider consultation to be the most appropriate way of gathering external input.
The letter explicitly emphasises that previous practices or promises to consult should not result automatically in consultation in the future and that each situation should be re-assessed on its own merits. The letter encourages that this same approach is taken across the wider public sector, not just central government.
Looking ahead, the letter includes a promise that this Parliament will review and remove “the thousands of unnecessary consultation and reporting requirements,” with the aim of reducing what is viewed as unnecessary or administrative burdens on decision-making and progress.
Legal Considerations
Whilst reaffirming that the Government will “always act within the law,” the letter emphasises that issues are often not clear cut and that the existence of legal risk should not prevent ministers from acting. Rather, the letter encourages a larger appetite for risk, confirming that “where there is a tenable legal argument,” ministers should feel empowered in deciding how to proceed, even when the legal risk is considered as high.
Guidance for central government lawyers will be updated to reflect this new approach.
Judicial Review
Whilst recognising the courts’ core constitutional role in scrutinising executive decision-making, the letter expresses the view that judicial review can operate disproportionately. The letter highlights reforms already introduced to limit judicial review challenges affecting “nationally significant infrastructure projects” and confirmed intentions to take those reforms further, with proposals to extend them to transport, water and other major infrastructure projects once the necessary legislation has been enacted.
Practical Implications
It has always been the case that there is no general legal duty for public bodies to carry out formal public consultations. Sometimes the best way to involve the public is through other means of engagement, both from the perspective of outcomes, time and cost. Public bodies seeking to embark on new projects or decisions on which public engagement or involvement may be needed should reflect on the message on consultation contained in this letter as to the best way for that participation to occur. If time permits, public bodies may also wish to await potential changes as to the removal of statutory consultation requirements by this Parliament.
It is also worth highlighting that the letter emphasises a change in risk appetite, which may be of note for both those making decisions and those with an interest in challenging them. There may follow a greater appetite to proceed to litigate, albeit it appears that there could be some limits imposed to the scope of judicial review litigation affecting certain major infrastructure projects.
Brodies advise clients across all areas of public law and can support those seeking to understand how a faster, more interventionist approach to government decision-making may affect future projects and potential challenges.
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.
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