Supreme Court democratic principles of consultation anathema to Ministers who put rights of landlords above tenants’

5 October 2017

The carefully crafted democratic principles of governmental consultation endorsed by the Supreme Court are anathema to Ministers & Local Councillors who put the rights of land owners and developers way above the needs of every citizen for an affordable home.

The lack of a constitution in the UK has led national and local government to believe that if they win a majority then, for the next few years, they are free to make any ideological decisions for which they can get a majority in Parliament or in the local council.  Whether a particular policy was in their manifestos at election time is ignored.  That so called freedom resulted in such human rights aberrations as the closed shop, which was never in the Labour manifestos of 1974, and the poll tax which was never in the Conservative manifesto of 1979.  Both laws were repealed by the opposing party when a new election was won but not before damage had been done by the closed shop to workers by forcing them out of steady employment and by the poll tax tenants by imprisoning over 1000 vulnerable people unable to pay a tax plus the enforcement costs out of their unemployment benefits or state pensions.  

The closed shop legislation in the 1974 and 1976 Industrial Nations Acts  allowed employers to sack somebody who had not joined a trade union at the request of a shop steward. The poll tax reduced the local rates payed to councils from £2,000 for wealthy couple living in a very valuable property to £800 and increased the rates for a couple of state pensioners living in a small cottage from £200 to £800.  The tax was set by national government at £400 a head. It was unpayable by millions of poor people.

In an attempt to preserve the democratic prerogative of UK citizens between elections Parliament passes laws requiring local authorities the consult their constituents about policies which might not be in the manifestos at election time.  Local authority constituents often feel the need to call councils to account, but “What’s the use they never listen” allows councils get away with abuses of power.

The laws allowing residents to apply for judicial review are becoming increasingly useless because the rules about who qualifies for legal aid have become increasingly tight and costly, so excluding more and more people.  The maximum amount of equity a person owns in their freehold which will exclude them from legal aid has been rendered ineffective by the rising market value of homes.

Councils are therefore getting away  abuses of power by undertaking  slack and undemocratic  consultations about their decisions between elections with less and less risk of being held to account in the High Court.    

In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent’s decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful.  Gunning was represented by Stephen Sedley QC. In 2014 his case led to the Supreme Court endorsing the Sedley Principles in Mosely v Haringey, a case which I initiated as a resident of Haringey by involving Ian Wise QC and Alex Rook, Solicitor of Irwin Mitchell.  Michelle Mosely is a brave single mother who qualified for legal aid.  Haringey’s consultation was unlawful.

The Sedley principles are;

“…these basic requirements are essential if the consultation process is to have a sensible content.

  • First, that consultation must be at a time when proposals are still at a formative stage.

  • Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.

  • Third,… that adequate time must be given for consideration and response and, finally,

  • fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.

It is hard to see how any of his four suggested requirements could be rejected or indeed improved” Said the Supreme Court

More than the Sedley principles the court also addressed the common law duty of procedural fairness in the determination of a person’s legal rights. “…consultation should be fair.

First, the requirement “is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested” (para 67).

Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel” (para 68).

Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society. “(My emphasis)

It was that democratic principle which Haringey Councillors had flouted when they were required by the Local Government Finance Act 2012 to consult before they reduced the council tax benefit. They had clearly made the decision before they consulted about it. They had never explained to the consultees what alternatives they had considered. In fact an increase of 86 pence a week for all council tax payers would have prevented cutting the council tax benefit by 20% for the poorest Haringey residents; but we were never asked.  The court noted that “Their income was already at a basic level and the effect of Haringey’s proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, while sparing its more prosperous residents from making any contribution to the shortfall in government funding. Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why”. (my emphasis).

The flaw in those proceedings from the point of view of the poorest council tax payers is that Haringey was not required to repeat their consultation lawfully.  The council has therefore imposed the tax and enforced the inevitable arrears for three and a half years after an unlawful consultation.

Nevertheless the Mosely decision by the Supreme Court has set democratic rules for every consultation done by any government department or local authority in England and Wales. It remains the law of the land until changed by Parliament.

That has now happened in the Housing and Planning Act 2016.  Anna Minton describes the avoidance of the Mosely decision in her Book “Big Capital; Who is London for?” as follows; “The act also Grant automatic planning permission for Brownfield sites including housing estates paving the way for widespread demolitions. These have already started to redefine London. It opens the door to direct privatising of local authority planning by allowing developers to choose private sector consultancies rather than local authorities to process planning applications in pilot areas. This further undermines the Democratic accountability of local planning department planning academic describe the actors no less than an attempt to destroy any form of democratic control of planning and land use”.   The Mosely decision is undermined because there is no right to judicial review of private companies. It purpose enable citizens to challenge governmental abuses of power.  The carefully crafted democratic principles of government al consultation endorsed by the Supreme Court are anathema to Ministers & Local Councillors who put the rights of land owners and developers way above the needs of every citizen for an affordable home. 

Rev Paul Nicolson