Public Administration CommitteeWritten evidence submitted by Coalition for Access to Justice on the Environment (CAJE) (PE 12)

Executive Summary

This submission is made by the Coalition for Access to Justice on the Environment (CAJE) which includes WWF-UK, Friends of the Earth, Greenpeace, the Royal Society for the Protection of Birds, the Environmental Law Foundation and Capacity Global.

At the invitation of the Select Committee, this submission focusses entirely on the effect of the introduction of the new Consultation Principles by the Government in July of this year.

Both the Aarhus Convention (ratified by the UK) and the common law establish general legal principles that consultation should: (i) be early; (ii) be informed; (iii) include reasonable timeframes; and that (iv) due account is taken of the outcome of the consultation process.

The new Consultation Principles are intended to add a degree of flexibility but doing so will, we believe, inevitably lead to increased legal challenges to consultations with the attendant problems of delays and uncertainties for all concerned.

We are concerned that the focus on targeted “stakeholders” will see the Principles applied in a more limited way than the Aarhus Convention requires.

The new Principles state that “The amount of time required…might typically vary between two and twelve weeks” and that “In some cases there will be no requirement for consultation at all”. This signals a significant change in government policy whereby 12 weeks has ceased to be a minimum and will now be perceived by many to be a maximum. This may have a number of serious consequences including a greater risk of legal challenge.

The Principles are stated to be subject to “statutory or mandatory requirements” but whether this is intended to encompass the Aarhus Convention obligations or acknowledge common law requirements is not clear to us and requires clarification in the document.

The focus on greater use of online tools to carry out consultation should not be allowed to undermine the discipline of ensuring that the views of stakeholders and the public are appropriately canvassed and of providing a narrative of record; one place where the background information, the precise options or proposals and official assessments of their impact can all be found together.

Introduction

1. The Coalition for Access to Justice on the Environment (CAJE) welcomes the opportunity to submit evidence to the Public Administration Select Committee (PASC)’s Inquiry into public engagement in policy making.

2. The invitation suggested that we focus specifically on the issue of Government public consultation practices, particularly in light of the changes introduced by the new Consultation Principles which were unveiled in July this year and which came into effect this autumn.

3. CAJE was established in 2003 and includes WWF-UK, Friends of the Earth, Greenpeace, the royal Society for the Protection of Birds, the Environmental Law Foundation and Capacity Global. It seeks to ensure compliance with what is known as the third pillar of the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention)1 that access to justice in environmental matters is fair, equitable and not prohibitively expensive; that it is genuinely accessible to all; and that the justice system, so far as possible, works to protect the environment in accordance with the law. While CAJE has focused its activities on this third pillar of the Aarhus Convention, members of the Coalition are routinely engaged in the other two pillars of the Convention, namely access to environmental information at the UK and EU levels and the effectiveness of public participation processes.

4. The Consultation Principles apply to consultations of all forms undertaken by public bodies however our experience, and therefore our comments, are limited to their application in the environmental sphere.

Background

(i) The effect of the Aarhus Convention

5. The Aarhus Convention was signed on June 25, 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001 and as of July 2009, it had been ratified by 40 (primarily European and Central Asian) countries and the European Union. The UK ratified the convention on 23 February 2005.

6. The Aarhus Convention grants the public rights regarding access to information, public participation, and access to justice in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses, almost exclusively, on interactions between the public and public authorities.2

7. The text of the Convention is accompanied by detailed Guidance3 and a Task Force on Public Participation is in the process of producing detailed “Recommendations on Public Participation in Decision-making in Environmental Matters” 4

8. The three key provisions of the Aarhus Convention relating to public participation are Articles 6 (Public participation in decisions on specific activities), 7 (public participation concerning plans programmes and policies relating to the environment) and 8 (public participation during the preparation of executive regulations and/or generally applicable legally binding normative instruments).

9. In general terms, the Convention sets minimum standards for public participation when authorities make general plans or license specific projects that could affect the environment.

10. It is “the public concerned”5 who must be informed of a proposed activity, early in the process while options are still open.

11. The general principles which the Convention establishes are that consultation should: (i) be early6; (ii) be informed7; (iii) include reasonable timeframes8; and that (iv) due account is taken of the outcome of the consultation process.9

12. The public should have a possibility to provide input/comments and have due account taken of them, at an early stage of decision-making when all options are still open, including whether the proposed activity should go ahead at all (the so-called “zero option”).10 Failing to do so has been found not to be compatible with the Convention’s requirement for the public to have an opportunity to participate when all options are open.

13. Authorities must consider the outcome of the public participation in their decision, which must be promptly and publicly accessible, in writing, with its reasoning.

14. In order to implement Articles 6, 7 and 9(2)—relating to access to justice—of the Aarhus Convention, the EU adopted EC Directive 2003/35/EC11 in 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment (the “Public Participation Directive”, or “PPD”).

15. The PPD amended existing public participation rights under EC Directives on Environmental Impact Assessment (EIA) (85/337/EEC) and Integrated Pollution Prevention and Control (IPPC) (96/61/EC) ensuring that the public concerned will be given early and effective opportunities to participate in environmental decision making and also established rules for public participation in plans and programmes drawn up within other existing Directives.

16. In the UK, the obligations arising from Article 6(1)(a) of the Aarhus Convention are implemented not only through national regulations on Integrated Pollution Prevention and Control,12 EIA13 and Strategic Environmental Assessment14 but also, inter alia, via the Planning Act 2008, and the Localism Act 2011.15

(ii) Common Law on consultations

17. The Principles constitute non-legally binding guidance and may be overridden by existing case-law establishing the legal principles with which public consultation must conform (which is referred to obliquely by way of footnote in the document).

18. While there is no general legal duty to consult, the common law has established that fairness requires that parties with an interest in the decision must be consulted, in particular where there is a legitimate expectation of consultation. Such an expectation may derive from: (i) a representation or promise that there will be consultation prior to a decision; or (ii) a past practice of consultation.

19. The most commonly cited requirements of the duty to consult are the so-called “Sedley requirements”,16 which state that: (a) consultation is undertaken when the proposals are still in a formative stage; (b) adequate information is given to enable consultees properly to respond (this in turn may require that there is an actual proposal in existence upon which consultation takes place); (c) adequate time is provided in which to respond; and (d) the decision-maker gives conscientious consideration to the response to the consultation. While the Sedley requirements pre-date the Aarhus Convention by at least a decade, they clearly focus on common elements of effective consultation.

20. While the Sedley requirements are commonly cited as the leading statement of the content of the duty to consult, there is no general rule as to the kind or amount of consultation required.

21. But there are a number of factors relevant to the extent of consultation required, including the general and statutory context , the degree of urgency required17 and whether views have already been expressed by interested parties in earlier discussions and/or earlier consultation opportunities.

22. As to timing, consultation must be at a time when proposals are still only at a formative stage, when the views of the decision-maker are only tentative or provisional upon the outcome of the consultation process and the decision-maker has not yet fixed upon a definite solution but is prepared to change course if persuaded to do so. A decision-maker may have a preferred option or provisional view, or a course it is “minded” to take subject to the outcome of the consultation, but it should not make a decision in principle and then consult if this has the effect that the proposal has gone beyond the formative stage. If consultation takes place only after the proposal has gone beyond the formative stage, then the decision may also be liable to challenge on the ground of predetermination.18

23. The duty to consult requires more than just consideration of views submitted. It requires the taking of positive steps to make the opportunity to make representations known to those who have a right to be consulted; “the essence of consultation is the communication of a genuine invitation to give advice”19.

24. The decision-maker must give genuine and conscientious consideration to the representations received. The product of the consultation exercise must be taken into account in finalising any proposals. The decision-maker must embark on the consultation process prepared to change course if persuaded by that consultation process to do so. In the Association of Metropolitan Authorities case20 it was noted that “sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled”.

The Consultation Principles

25. It is against the background of this legal context that government guidance on consultation must be considered.

26. In 2008, the government published a Code of Practice on Consultation21 containing clear guidance on how consultation should be carried out. This document was consistent with the Aarhus Convention and indeed was cited by the UK in its National Implementation Report on the Aarhus Convention in preparation for the Fourth Meeting of the Parties to the Aarhus Convention in Moldova in 2011 in terms of compliance with Articles 3(4), 7 and 8 of the Convention.22

27. However, in July this year, the Government revised the Code of Practice substituting it with new “Consultation Principles”23 which are stated to take effect in Autumn 2012. Like many other guidance rewrites under the current government the new Consultation Principles are much shorter than the document they replace. The Consultation Principles are three pages long; they replace a code of conduct which ran to thirteen pages.

28. The reason for the revision is ostensibly set out in a Ministerial statement by the Right Honourable Oliver Letwin MP on 17 July 24:

“The Civil Service Reform Plan commits the Government to improving policy making and implementation with a greater focus on robust evidence, transparency and engaging with key groups earlier in the process.

As a result the Government is improving the way it consults by adopting a more proportionate and targeted approach. The new approach to consultation is based on making the type and scale of engagement proportional to the potential impacts of the proposal. The emphasis is on understanding the effects of a proposal and ensuring real engagement rather than following the same bureaucratic process.”

29. The new Principles are intended to add a degree of flexibility consistent with the Government’s general preference for light touch regulation.

30. But even if one accepts the rationale for such a change then , certainly in the area of environmental policy subject to the application of the Aarhus Convention, we believe the Principles contain serious flaws which we set out below:

31. First, the previous Code of Practice on Consultation was itself produced following a review of government consultation practices, a consultation that drew 100 responses, 20 meetings around the UK, an online discussion forum and market research. The result was a set of clear criteria that in our view represented accepted best practice for carrying out adequate consultation.

32. The absence of any meaningful consultation prior to their introduction is unfortunate to say the least and means they lack legitimacy. This also leaves flaws in the Principles to be tested in practice rather than considered in advance.

33. There is little doubt that the Principles are intended to signal a major change in the way policy-related consultations happen. The Prime Minister signalled as much in his widely reported speech to the CBI 0n 19 November in which he was critical of both excessive consultation and use of judicial reviews.25

34. A more flexible approach will result in a greater variety of consultative practices, some of which we acknowledge might be better suited to the circumstances of a particular case. But relaxing procedural rules will create great uncertainty for members of the public if they can no longer be sure of the parameters being applied.

35. Barely acknowledging the legal obligations underpinning those rules—particularly in the environmental sphere—also leaves consultation procedures to the discretion of individual organisations who may or may not be well versed in these obligations.

36. This will we believe lead to increased legal challenges to consultations with the attendant problems of delays and uncertainties for all concerned.

37. Such a scenario is perfectly illustrated by the case of R (on the application of Greenpeace Ltd) v Secretary of State for Trade and Industry,26 in which the High Court, giving prominent regard to the Aarhus Convention, held that a consultation process leading to the government’s decision to support the building of new nuclear power stations was procedurally flawed on the basis that the purpose of the consultation document was unclear, there was no information of substance on the two critical issues of economics and nuclear waste and that the information on waste was seriously misleading.

38. Secondly, the Code of Practice encouraged a broad base of public engagement in consultations in the belief that public participation leads to better outcomes, a belief we share. But the Principles signal a move towards fewer consultations which are carried out “more quickly and in a more targeted way than before”. The Principles talk about “stakeholders” but do not refer to the public at any point. In that context, its exhortation to consultors “to think carefully about who needs to be consulted and ensure that consultation captures the full range of stakeholders affected” may be more restrictive than it appears. This directive will depend on how it is interpreted in practice. But there is a real risk that “stakeholders” will be defined more restrictively than the broader “public concerned” of the Aarhus Convention, limiting views to those with a vested interest and reducing the opportunity for broader input into key decision-making.

39. As the Consultation Institute notes27: “If Government departments and other public bodies implement the Principles as intended there may be significantly fewer consultations, and it may be less easy to predict whether and when in the policy development process, there will be the opportunity to contribute formally through a consultation.”

40. By way of example, on 8 October the Chancellor of the Exchequer, the Right Honourable George Osborne MP announced that “We are today consulting on a generous new tax regime for shale gas so that Britain is not left behind as gas prices tumble on the other side of the Atlantic.” The Treasury statement that followed makes it clear that only industry will be consulted on the structure of the regime.28 We would argue that this subsidisation of the controversial shale gas sector merits wider consultation than simply with industry alone.

41. Thirdly, the previous Code contained clear guidance that consultations should normally last for at least 12 weeks, with consideration given to longer timescales where appropriate (for example during the summer and Christmas holidays). It also provided guidance on how to handle an unavoidably shorter consultation period.

42. Although criticised for prescribing a 12 week period in all cases, the Code of Practice did no such thing, merely establishing 12 weeks as the standard with the option for shorter consultations “where there are good reasons for it to last a shorter period”29 In contrast, the new Principles state that “The amount of time required…might typically vary between two and twelve weeks” and that “In some cases there will be no requirement for consultation at all”. This signals a significant change in government policy whereby 12 weeks has ceased to be a minimum and is instead a maximum. No indication is given as to how a determination not to consult is to be made. These may have serious consequences.

43. As already noted, the common law has established legal principles by which public consultation must conform. One of these is that adequate time must be given for consideration and response to a consultation.30 It is our view that, given the often extremely complex nature of policy-making in relation to the environment and the large numbers of individuals and groups with an interest in the area, the Government risks legal challenge if it introduces consultation periods that are not of a sufficient length to enable adequate consideration and response to policy proposals.

44. A strong argument for the 12 week minimum rule previously was that membership groups need time to consult with their local branches and members before submitting a formal response. Likewise, formal and loose coalitions of NGOs (like CAJE) often try to submit joint submissions. A shorter consultation period is likely to lead to more rushed, and less considered, responses.

45. Implying that a 12 week consultation period is likely to be the exception rather than the rule may also encourage consultation at a much later stage in the formulation of policy proposals which would breach other established common law principles.

46. While it may be true that there are cases where a shorter consultation process is possible, a two week consultation period is likely to require substantial engagement in advance with stakeholders and the wider public so that they are forewarned as to when to expect the consultation.

47. A short consultation period may be necessary if there is an urgent need to take action. However a period of notice may legally be too short even where the need to take action is one of real urgency, or there could be a failure to seek consultation within an urgent timetable.31

48. Finally, in terms of compliance with the Aarhus Convention, the degree of flexibility promulgated by the Principles may be problematic. We note the decision of the Aarhus Compliance Committee in relation to a complaint against Belarus in which it found:

“The Committee, however, does not consider appropriate a flexible approach, whereby only the maximum time frame for public participation procedures is set, as this is the case in Belarus in relation to the time frames for public consultations and submitting of comments. Such an approach, regardless of how long the maximum time frame is, runs the risk that in individual cases time frames might be set which are not reasonable. Thus, such an approach, whereby only maximum time frames for public participation are set, cannot be considered as meeting the requirement of setting reasonable time frames under article 6, paragraph 3, of the Convention.”32

49. Fourthly, whether there is an actual breach of the Aarhus Convention will depend on the extent to which the Principles are deemed to operate outside its application. As already noted, the Principles do not have legal force. The Principles also provide that “they do not prevail over statutory or mandatory requirements”. A footnote to that statement adds:

“Some laws impose requirements for the Government to consult certain groups on certain issues. This guidance is subject to any such legal requirement. Care must also be taken to comply with any other legal requirements which may affect a consultation exercise such as confidentiality or equality.”

50. Whether these statements are intended to encompass the Aarhus Convention obligations or acknowledge common law requirements is not clear to us. If they don’t, then this is clearly an oversight of some importance. If they do, then they not do so very clearly. This renders the guidance provided as, at best, not particularly helpful and, at worst, positively misleading for those using it.

51. As already noted, the previous Code of Practice was cited by the UK in its National Implementation Report on the Aarhus Convention in preparation for the Fourth Meeting of the Parties to the Aarhus Convention in Moldova in 2011. It will be interesting to see if the attention of Aarhus Parties is now drawn to the fact that that Code has been replaced by the much weaker Principles.

52. Fifthly, some attention has focussed on the notion that the Principles prescribe that consultation should be digital by default, although we note that this phrase only appears in the Ministerial Statement and not in the Principles themselves. However, the Government is clearly enthusiastic for online engagement.

53. There are concerns here about the extent to which this will mean that lower income and more vulnerable communities could be prevented from responding to consultations because they do not have internet access and are therefore not aware of them.

54. But there is a more general point to be made about the value of formal consultation documents. As the Consultation Institute notes:

“The traditional document performs the function of providing the narrative of record; it is the one place where the background information, the precise options or proposals and official assessments of their impact can be found. In the absence of such a publication where is this to be found? The known weakness of much in the online world (and social media in particular) is that there is no easy way to distinguish true facts from falsehoods and lies. To create an informed debate requires investment in seeking an agreed basis of fact—what the Government in the Principles calls its ‘evidence-base’.

Rather than eliminate the role of the consultation document, public bodies need to reduce their reliance upon it as a method of requesting and securing consultee responses. By all means, other communications methods should be used, provided the messages are consistent with a ‘base document’ which the Institute advises be retained for clarity of messaging and as a defence against legal challenges.”

55. Finally, the reference in the previous Code to the appointment of a consultation coordinator, monitoring the effectiveness of consultations and sharing learning, is entirely absent from the new Principles. This proposal was an important way of ensuring oversight of and accountability for consultations that took place and it is unfortunate that it has been removed.

Summary

56. In summary, the rationale for the introduction of the new Consultation Principles is that they are intended to add a degree of flexibility consistent with the Government’s general preference for light touch regulation.

57. But the Principles move too far away from providing meaningful guidance. In relaxing procedural rules and barely acknowledging the legal obligations underpinning them—particularly in the environmental sphere—leaving them to the discretion of individual public bodies who may or may not be well versed in those obligations, the Principles risk undermining the democracy of decision-making.

58. While it is obviously early days in the application of the Consultation Principles, we believe that in seeking to simplify this guidance the Government is running the risk that consultation exercises, certainly in the environmental field, will simply become more not less liable to challenge.

59. Consultation should be a meaningful and thoughtful collection of evidence and experience, both professional and lay. When carried out correctly it enhances good decision-making and when carried out incorrectly, it risks lengthy and costly challenges in the courts.

November 2012

1 see http://www.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf

2 Note, for example, that the access to information provisions apply to private bodies exercising public functions and that Article 9(3) of the Convention applies to private persons and public authorities

3 See Aarhus Implementation Guide pages 85-122 at http://www.unece.org/fileadmin/DAM/env/pp/acig.pdf

4 See http://www.unece.org/env/pp/ppdm.html).

5 Article 2 (5) of the Convention defines the “public concerned” as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purpose of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national shall be deemed to have an interest”.

6 Aarhus Convention, Articles 6(2), 6(4), Article 7 and Article 8

7 Aarhus Convention, Articles 6(2), 6(6), Article 7 and Article 8

8 Aarhus Convention, Articles 6(2), 6(3), Article 7 and Article 8

9 Aarhus Convention, Articles 6(8), Article 7 and Article 8

10 See Article 6(4) of the Convention

11 See http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:156:0017:0024:EN:PDF

12 www.legislation.gov.uk/uksi/2000/1973/contents/made and Environmental Impact Assessment (EIA) Regulations 1999 - www.opsi.gov.uk/si/si1999/19990293.htm

13 See http://www.legislation.gov.uk/uksi/1999/293/contents/made

14 EC Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment

15 The UK has brought into force a raft of laws, regulations and administrative provisions to comply with the PPD. .

16 The submissions of Stephen Sedley QC were made in the case of R v Brent London Borough Council, ex parte Gunning (1986) 84 LGR 168 and set out by Hodgson J at 189.

17 E.g. in R v Lord Chancellor, ex parte Law Society (1994) 6 Admin LR 833 the urgency required for a decision was an indication that there was no obligation to consult

18 In R (Partingdale Lane Residents’ Association) v Barnet London Borough Council [2003] EWHC (Admin), para 66 the decision was quashed on grounds of inadequate consultation and predetermination, as the decision-maker had reached a decision before the consultation took place and had not gone back to revisit that decision in light of the responses

19 R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1, 4f

20 R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities [1986] 1 WLR 1, 4g

21 See http://webarchive.nationalarchives.gov.uk/+/http://www.bis.gov.uk/policies/bre/consultation-guidance/code-of-practice)

22 Available at: http://www.unece.org/fileadmin/DAM/env/pp/reporting/NIRs%202011/UK_NIR_2011.pdf

23 See http://www.cabinetoffice.gov.uk/resource-library/consultation-principles-guidance

24 See http://www.parliament.uk/documents/commons-vote-office/July_2012/17-07-12/4-CabinetOffice-ConsultationPrinciples.pdf

25 See http://www.politics.co.uk/comment-analysis/2012/11/19/cameron-s-cbi-2012-speech-in-full

26 [2007] ECHC 311

27 See “Putting Principles into Practice: understanding the new Cabinet Office Statement of Consultation Principles” http://www.consultationinstitute.org/#/briefing-papers/4562374204 at page 19

28 Insert hyperlink to Treasury Statement

29 Opcit at para 23

30 (see for example, R v Brent London Council ex p. Gunning (1985) 84 LGR 168; North and East Devon Health Authority ex p Coughlan; R v London Borough of Barnet ex p B)

31 E.g. R (Amvac Chemicals UK Ltd) v Secretary of State for Environment, Food and Rural Affairs [2002] ACD 219, paras 60 and 64

32 See Belarus ACCC/C/2009/37, ECE/MP.PP/2011/11/Add.2, April 2011, para.90

Prepared 31st May 2013