[Analysis by Svetlana Kotova of Inclusion London]
There is no common law duty to consult generally and the duty to consult with people who are affected by policy is very limited. The duty to consult will only arise in specific circumstances:
- When there is a statutory duty
When there is a promise to consult leading to legitimate expectation. It is not determined by the scale or importance of a policy, it is created by express promise to consult. But even then to have a legal duty it must be shown that not consulting would create an unfairness amounting to the abuse of power.
- When there is an establish practice to consult.
- When not doing so will result in conspicuous unfairness.
None of those applied to NDS.
The claimant argued conspicuous unfairness, but the judge did not agree, because NDS is a policy framework within which specific policies will be consulted on separately. The level of engagement was sufficient for DU to comply with the duty to take reasonable steps to acquaint himself with the relevant information
UNCRDP artic le 4 cannot be of any help to interpret or read in any specific consultation duties.
In this case, the DU embarked on a voluntary consultation. The test whether public body has embarked on a voluntary consultation is a test of substance, not form. Initially no evidence when survey was published whether this is a voluntary consultation or not, but then when DU started to refer to it as informing strategy, they built a link.
The DU then presented the engagement they have done as the biggest listening exercise. So basically they lost this case because they were pretending to be consulting, when they did not and did not mean to.
Since they were consulting or at least publicising this as a consultation, they should have followed key principles of consultation:
- Enough info to comment,
- Consulting at formative stages of policy development,
- Enough time to comment
- Responses considered when policy is formulated.
None of those were followed in this exercise.
PSED, the duty is due regard duty, and from evidence it is clear that DU engaged in thinking about accessibility. The fact that they did not make the survey fully accessibly does not breach PSED. The duty is about process, not the result.
I suppose the case exposed how policy development really works, it also confirmed that the strategy in actual fact was not meant to be this ground-breaking document. For our UNCRDP report this is a very good evidence, as it shows how there was no engagement at the formative stage followed by pretending to engage exercise, which did not inform anything. “none of the engagement elicited views on detailed policy proposals, because no such proposals had been finalised or agreed within government”.
We might need to have discussion with Steve on how much we realistically can use legal process to push for engagement here.
To ensure DPOs are involved when public body really does not want to involve them, we need to secure public commitments to consult and some form of gathering views and then question how those views/data would be used. If the response is that this will inform the policy, then it open a possibility of a challenge..
In any way we need to push for public commitments to consult, possibly that way we could create some legitimate expectation. That would give us a way in to challenge. But we probably should in influencing stay away from legal arguments, more frame it in UNCRDP and this really makes sense to do arguments.
Accessibility of process probably should be challenged using substantive provisions of the Equality Act, but the outcome will be financial compensation and a declaration. I suppose if at some point we managed to get quite a few people with learning difficulties to join a claim about lack of easy read, financial damages could hurt and they could take notice.
They would have to agree orders as a result, so not sure NDS would be pronounced unlawful. I’ll check with Bindmans what they are asking for.
I think this is the first legal case where DPOs and consultation with DPOs is considered in such detail.
