Forest Heath District Council & Ors v The Electoral Commission & Ors

At the pre-consultation stage of a statutory decision-making process, fairness may require a public body to engage in genuine dialogue about a properly formulated proposal. Dialogue involves an exchange of ideas, not merely the collection of factual information. Where the decision-maker has reservations about whether a proposal satisfies the governing criteria, it should ordinarily discuss those reservations with the proposal’s proponents and give them a fair opportunity to respond. A decision to exclude a proposal from consultation may therefore be unlawful where the decision-maker has failed properly to evaluate it or has operated under a material misunderstanding of the statutory scheme. Later opportunities to make representations do not necessarily cure an earlier procedural unfairness.

The claimants, local authorities in Suffolk, sought judicial review of the Boundary Committee’s publication of Further Draft Proposals for reorganising local government into unitary authorities. They argued that their East/West/Ipswich proposal had been unfairly excluded from consultation.

The challenge concerned the period between the Secretary of State’s request for advice under section 4 of the Local Government and Public Involvement in Health Act 2007 and publication of draft proposals under section 6(4). The central issue was whether the Committee had fairly evaluated the proposal and engaged with the claimants’ case before excluding it from consultation.

1. The claim succeeded in principle. The Boundary Committee’s decision-making process leading to the publication of the Further Draft Proposals was procedurally unfair. The precise relief was reserved for further submissions.
2. The statutory scheme required the Committee to assess whether alternative unitary arrangements were likely, in aggregate, to meet the Secretary of State’s five criteria, and separately to decide which qualifying proposals should be published for consultation. Its earlier belief that only one alternative proposal could be published was capable of affecting both stages of that assessment.
3. The Committee was required to engage in genuine dialogue with proponents of a properly articulated proposal. Dialogue meant a bilateral exchange of thoughts and ideas, rather than merely requesting factual information. It was not sufficient to receive representations, maintain that an open mind was being kept, and fail to address doubts about whether the proposal met the statutory criteria.
4. Full and proper consideration required the Committee to invite assistance through dialogue on areas where reservations existed. The claimants had advanced detailed and substantial cases, including on strategic leadership. The Committee should have discussed its reservations with them before excluding the proposal from the draft proposals published in July 2008 and March 2009.
5. The court could review preliminary stages leading to a formal consultation in order to ensure that relevant matters had been fairly included in the consultation process. The principle of fairness was flexible and depended on the statutory context. The later opportunity to make representations to the Secretary of State did not cure the procedural defect.