Good consultation - further clarity from the High Court

Two decisions of the High Court in judicial reviews involving the Boundary Committee for England provide helpful guidance to public bodies operating under a statutory duty to consult. Of particular interest, the High Court confirmed that:

• Public bodies should comply with the usual public law standards of consultation whenever a statute imposes on them obligations that are suggestive of a requirement to consult. It is not necessary for a statute specifically to use the word 'consult' or its derivatives.
• A consultation need not consider all relevant issues in a single exercise, even if it concerns a list of decision-making criteria that are interrelated. It is possible for consultations to be staged so that issues are consulted upon at different times.
• Even where a statute permits a public body to consult only with those whom it considers to be interested, this will not allow it to limit the consultation to 'experts' in cases where the public interest is engaged. In such cases the wider public should be consulted, and the consultation written so as to be accessible to them.
• In deciding whether a consultation is accessible, the public body may take into account the wider context, such as any publicity given by the media to the issues being consulted upon.
• However, the more significant the public interest in the issues under consultation, the more a court will adopt an approach of 'enhanced scrutiny' when assessing whether the process meets public law standards.

For further details read Wragge & Co's analysis.