Local authorities should consider the legal issues around consultation during the Covid-19 crisis, writes Jonathan Moffett QC.
When the current Covid-19 crisis hit, many local authorities will have been engaged in, or about to start, consultation exercises; but now they might be considering conducting them in a way that is different from their usual approach, or abandoning them altogether. For example, it seems that for the foreseeable future it will not be possible to hold public consultation meetings, or even stakeholder meetings (unless they are conducted virtually). Before taking any such steps, however, local authorities will need to give some thought to the legal implications of doing so.
The starting point should usually be any statutory provisions that govern the consultation exercise. Where there is a statutory duty to consult, the legislation might prescribe who is to be consulted or how the consultation is to be carried out, and local authorities may have to give careful thought as to how they comply with any such duties in the present situation. There is nothing in the provisions of the Coronavirus Bill that directly affect those duties.
If the consultation is non-statutory, or the manner in which the consultation is to be carried out is not prescribed by legislation, then the overarching consideration is likely to be whether what is being considered would constitute a fair consultation. In this context, it is important to bear in mind that fairness is a flexible concept and its requirements vary according to the circumstances. It seems likely that the exigencies of a public health emergency would be one of the circumstances that would affect what fairness requires.
For example, in a situation where social distancing is being strongly encouraged, it is likely to fair to conduct a consultation exercise entirely on-line or by post, without having drop-in centres or face-to-face meetings. Of course, in such a situation, councils will to think about how to ensure that the exercise is still accessible to consultees.
Before abandoning a consultation entirely, or deciding not to consult a particular group at all, the starting point should again be any statutory provisions governing the consultation exercise. However, even if there is no statutory duty to consult, local authorities need to think about whether a past practice or a promise of consultation might have given rise to a legitimate expectation of consultation, and whether the circumstances justify resiling from that expectation. For example, the need to conduct a consultation exercise at speed might, depending on the circumstances, justify a council departing from its usual practice of consulting the general public and instead consulting only key stakeholders
Of course, as well as the legal implications, local authorities will want to think about how best to elicit the views of consultees, and thereby ensure that their decision-making is as well-informed as possible. This is a key purpose of consulting, and its importance cannot be underestimated, particularly in present circumstances.