Consulting? Think carefully about which documents and reports you disclose

There will be very few readers who don't have some involvement in reconfigurations and the necessary consultation exercises. There has been a run of court cases in recent years, in healthcare and other sectors, where the fairness and lawfulness of consultations have been challenged. We have already commented on many of these. Even those cases that don't involve the NHS provide valuable lessons for how to protect your own processes from legal challenge.

The latest judgment concerns the reorganisation of criminal legal aid by the Ministry of Justice (MoJ). In the case of London Criminal Law Solicitors Association and Criminal Law Solicitors Association -v- The Lord Chancellor the High Court has ruled that an MoJ consultation was unfair and quashed the resulting decisions.

A couple of statistics serve to illustrate the controversial nature of the proposed changes:

  • an immediate fee cut of 8.75% followed by a further 8.75% cut next year;
  • a proposal to offer 525 contracts for legal aid work when currently 1600 firms provide such work.

The announcement of these changes followed a consultation process in which the criminal solicitors profession was asked to respond to a wide range of questions. The profession's representative bodies had commissioned independent research into issues relating to capability and capacity within the legal aid market. They argued that solicitors responding to the consultation would be doing so in the dark without the benefit of the research and asked for a delay in the process for that research to be completed. The MoJ refused this request. As well as this the professions did not have available to them (and were not even made aware of) a report from KPMG which was completed after the conclusion of the consultation and largely informed the MoJ's decisions. Having seen that report the claimants argued that the assumptions made in it were flawed or at least open to challenge. They argued that the opportunity should have been given to consultees to see and comment on this report.

The Court agreed with those submissions but considered with some care the degree of unfairness required before it should interfere and rule a consultation unlawful. The judge was greatly influenced by the enormous impact that the changes would have on many firms and individuals stating: The impact of a decision is a material factor in deciding what fairness demands or requires in any particular case. He approved an earlier judgment which stated: Sufficient information to enable an intelligent response requires the consultee to 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 on which the decision is likely to be taken.

The lesson of the case is this: commissioners need to consider with care the level of background detail they are required to disclose as part of any consultation exercise. You do not have to automatically disclose all of the reports and analysis you obtain but you should carefully consider if not doing so could be considered unfair. This is a judgment that needs to be made on a case by case basis and if finely balanced you should seek advice.

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