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Consultations
Basic stuff this but councils up and down the country are continually getting the basics wrong and so are being forced to go through so may time-consuming and money-consuming judicial reviews.
- * Consultation must be carried out fairly and, although extent and method will depend on circumstances, it should generally follow the formulation set out in R-v- Brent LBC ex p. Gunning (1985) 84 LGR 168: (1) it must be conducted when the proposals are at a formative stage; (2) the decision-maker must give sufficient reasons for its proposals to permit of intelligent consideration and response*; (3) adequate time** must be given for consideration and response, and (4) the product of consultation must be conscientiously taken into account before making the relevant decision***.
- * “[A consulting authority’s] obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal 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.” – R –v- N Devon HA ex p. Coughlan (2000) 3 All ER 850 (Lord Woolf).
- * “[*Consultees should] know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision or the basis upon which the decision is likely to be taken.” – Devon CC –v- SoSfCLG (2010) EWHC 1456 (Admin).
- **Time to be allowed depends in each case on own facts, but if there is a local compact in force, a 12-week period will be required unless there is a good reason to depart from this.
- ***The consultation responses should be before the decision-makers in good time for them realistically to be able to consider them properly. Where reports to members contain only a summary of the responses, this may well not be adequate, because summaries may not always reflect the nuances of particular responses or may fail to reflect the particular emphasis of each response; decision-makers should have access to all the material, albeit with a guide to pertinent matters for ease of reference. [NB: this should be linked with the requirement, spelled out in R (W,M, G & H) –v- Birmingham City Council (2011) EWHC 1147 (Admin) (the care homes case) that, where a decision may affect substantial numbers of vulnerable persons, the statutory duties as to promoting equality will mean that decision-makers will need rigorous and accurate advice from officers and, of course, this requirement will have to be reflected in the consultation process.]
- The manner in which the Equality Impact Assessment is to be/has been carried out should be rigorously analysed to ensure compliance with statutory duties (e.g. s.149 of the Equality Act 2010) and the amplification of those duties by the courts (e.g. the ‘Brown Principles’, as to which see R (Brown) –v- SoSfW&P [2008] EWHC 3158).
- In cases involving a substantial reorganization, the authority must give proper consideration to adopting the enhanced consultation process referred to in s.3A of the Local Government Act 1999, which entails involvement of the affected community and its representatives and, if this is not thought to be necessary, reasons should be provided.
With thanks to suggestions from Lauren Smith and NMac.
See also What are the the general legal requirements for consultation? – Can of Worms.
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From 1st April 2018 to March 2019, CIPFA reported 35 libraries closed cf 2017/2018 127 libraries lost. 2016/17 105 closed. 121 closed 2015/116, 106 2014/15, 29 2013/14, 201 2011/12 and 33 2010/11.
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