Power hungry

The recent successful challenge by Greenpeace to the government's consultation on new nuclear power stations is the latest case in the developing area of law on the legality of consultation processes.

In R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] ECHC 311, Greenpeace argued that the Government made an express promise in a 2003 White Paper to carry out 'the fullest public consultation' before it decided whether or not to change its declared policy position not to support nuclear new build. This promise gave Greenpeace (and others) a legitimate expectation that they would be consulted. However, the consultation process was inadequate and incomplete.

Sullivan J in the High Court upheld Greenpeace's challenge. The consultation exercise had been 'very seriously flawed' and 'something has gone clearly and radically wrong.' The purpose of the consultation document had been unclear. It contained no proposals as such. Even if it had, the information provided was wholly insufficient to allow an intelligent response. There was no information of substance on the two critical issues of economics and nuclear waste. The information on waste was seriously misleading. All the information of substance on these two issues emerged after the consultation process ended.

Justiciability

As a general rule, when the exercise of the power of a minister or a policy decision is subject to scrutiny by Parliament, it is not for the courts to subject the decision in question to a test of reasonableness or otherwise impugn the substance of the decision.

However the courts have steadfastly rejected the argument that they cannot involve themselves at all in high-level strategic government decisions like a decision on new nuclear power stations, the future of air transport in the UK or the building or a new motorway network. Nonetheless, there are limits to their role. In the Greenpeace decision, Sullivan J noted that it will be difficult to challenge the substantive decision arrived at unless there is bad faith or manifest absurdity.

The courts are prepared to consider challenges to the procedures adopted during a consultation, provided the public authority is under an obligation to consult or chooses to consult. In the latter case, the courts take the view that once a consultation is embarked upon, it must be done properly.

Broad discretion

Although the courts are prepared to review the conduct of a consultation, they are clear that the decision maker has a broad discretion in how to conduct the consultation. The test laid down by Sullivan J in the Greenpeace case sets a high threshold for judicial interference '“ the courts will only intervene if something has gone 'clearly and radically wrong.

'With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon. That is most emphatically not the test... In reality a conclusion that a consultation exercise was unlawful on the ground of unfairness will be based upon a finding by the Court, not merely that something went wrong but that it went clearly and radically wrong'.

Underlying principle of fairness

The precise demands of consultation will depend on the circumstances but the underlying principle is that the consultation process must be fair. The precise requirements of fairness may also depend upon who is being consulted. In Greenpeace the judge drew a distinction between an individual consultee, a closed group of consultees, for example the residents of a particular care home or, as in the case of the nuclear new build consultation, the entire population of the UK.

Requirements of a consultation

The classic statement of the requirements of consultation was laid down in R v Brent London Borough Council ex p Gunning (1985) 46 LGR 168 and confirmed in R v North & East Devon Health Authority, ex p Coughlan [2001] QB 213:

a) Consultation must be at a time when proposals are still at a formative stage.

b) The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.

c) Adequate time must be given for consideration and response; and

d) The product of consultation must be conscientiously taken into account in finalising any proposals.

Sufficient reasons

In Greenpeace, the judge found that the consultation document gave every appearance of being an issues paper, rather than the full blown consultation document. As such it was manifestly inadequate, containing no proposals and no information of any substance on the two critical issues of economics and disposal of nuclear waste. The information on waste was misleading. Virtually all, the information of any substance emerged only after the consultation period had concluded.

Reports and new information

The Greenpeace decision, together with the Court of Appeal decision in Edwards v Environment Agency [2006] EWCA Civ 877 have refined the earlier legal position in this respect. As a general rule, there is nothing unusual in the decision maker commissioning reports in parallel with a consultation exercise, and fairness will not necessarily require the disclosure of each and every report. The internal workings of a decision maker do not, in the usual course of events, need to be disclosed as part of the consultation. However these general rules are not to be treated as absolute and cannot override the requirement of fairness. Thus, if in the course of decision making, a decision maker becomes aware of a new factor of some internal material of potential significance to the decision to be made, fairness may demand that the party or parties concerned should be given an opportunity to deal with it.

In Edwards, the undisclosed reports were highly specialised material reports on air emissions which broke new ground. Were they not to be disclosed, others would not know either that they existed or that either of them were to be taken into account by the agency.

In Greenpeace, Sullivan J linked the question of whether new material not available during the consultation period should be made available to consultees with whether the information in the consultation document was enough to enable consultees to make an intelligent response on the issues of principle. He took the view that the disparity between the amount of information on the economics provided in the consultation document and not merely the quantity, but the quality in terms of the technical detail and the information taken into account, after the close of the consultation was 'very stark indeed'.

A similar issue arose with the government's 2003 White Paper on the future of air travel. However in this case the amount of information provided to consultees as part of the consultation exercise on air travel was 'truly immense'. The overall consultation process was described by the judge in the case as an 'impressive attempt to grapple with a difficult and complex issue' (R (London Borough of Wandsworth) v Secretary of State for Transport [2005] EWHC 20 (Admin).

Adequate time

The consultation period for the energy review and nuclear new build was the minimum period of 12 weeks, as required by the Cabinet Office Code of Practice on Consultations. In Greenpeace, the judge took the view that whilst the 12-week period was not conclusive, it was part of the overall picture being presented to consultees that the consultation document was an issues' paper rather than the full blown consultation paper.

The timing and duration of the consultation process was part of the judicial criticism of the nuclear new build consultation. Sullivan J posed the rhetorical question: 'How could it possibly be fair for a public body consulting on an important proposal to say little more to consultees than 'we have appointed a committee to address one of the two major obstacles to the proposal and it will report in X months' and then to reach a decision on the proposal without inviting consultees comments on the Committees conclusions as to how the obstacle might be overcome.'

Policy making in the environmental field

The Greenpeace decision has particular implications for policy making in the environmental field. In commenting on the ability of the courts to review the consultation on new nuclear build, the judge said: 'Whatever the position may be in other policy areas, in the development of policy in the environmental field consultation is no longer a privilege to be granted or withheld at will by the executive. The United Kingdom government is a signatory to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention)... Given the importance of the decision under challenge '“ whether new nuclear build should now be supported '“ it is difficult to see how a promise of anything less than 'the fullest public consultation' would have been consistent with the government's obligations under the Aarhus Convention.'

One of the implications of the decision is that in environmental policy making there may be an obligation to consult (with all the consequent requirements outlined above), even in the absence of a statutory requirement, previous practice or a government promise to do so. The more environmentally significant the decision, the fuller the consultation must be.

The other element of environmental and planning decisions relates to the government's proposition that national policy guidance should be issued in respect of major projects to reduce the length of planning inquiries into proposals for such development. The approach of the court in Greenpeace and the earlier 'airports case' has been to the effect that if the government is to remove debate about 'need' from the public inquiry process to a national statement of policy then the process of compiling that policy statement must be conducted in a fair manner.

What then are the implications for government consultation in the environmental and planning field in these areas? The judge in Greenpeace referred to the response to the consultation from the Sustainable Development Commission (the government's own advisers on sustainable development) which suggested that the government should set aside nine months for a range of much more substantive consultative and engagement processes on nuclear power. More radically, the national consultation process would take the form of an inquiry, with oral representations, evidence from experts and the ability to cross examine witnesses. The real challenge for government would be to create an inquiry structure that balances fairness and transparency with the need to ensure that any inquiry does not last for years like the Bloody Sunday or Heathrow Terminal 5 inquiries. The challenge is significant, but the rewards, in terms of public acceptance of decision making, could be significant.