Marc Willers QC, Garden Court Chambers and Chris Johnson, Community Law Partnership
In this paper we consider whether the recent consultation paper on unauthorised encampments and developments issued by the Minister for Housing Communities and Local Government is susceptible to challenge by way of judicial review.
The law on consultation
The leading judgment on this area of law was given by the Supreme Court in the case of R (Moseley) –v- London Borough of Haringey  UKSC 56, 29th October 2014 (hereafter “the Moseley case”). [i]
The consultation exercise in Moseley can be summarised as follows: From 1st April 2013 local authorities were required to operate a new scheme, entitled the Council Tax Reduction Scheme (CTRS) to replace Council Tax Benefit (CTB). However, before bringing in this scheme, they were statutorily obliged to carry out a consultation process. London Borough of Haringey (LBH) considered that there were three options for any such scheme and decided, prior to the consultation process, that their preferred option was one that involved those who had previously received some CTB having to pay a significant amount of their Council Tax. LBH carried out a consultation which only addressed this option and the pros and cons of this option, rather than putting all three possible options in front of those who were consulted. They consulted all residents in the Borough.
In the Supreme Court, Lord Wilson (with whom Lord Kerr agreed) stated as follows : –
In R (Osborn) -v- Parole Board…… this court addressed the common law duty of procedural fairness in the determination of a person’s legal rights. Nevertheless, the first two of the purposes of procedural fairness in that somewhat different context…..equally underlie the requirement that a 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”……. Second, it avoids “the sense of injustice which the person who is the subject of the decision will otherwise feel”…….such are two valuable practical consequences of fair consultation. (para 24).
Lord Wilson also stated:
In R –v- Brent London Borough Council ex-parte Gunning…….Hodgson J …..said ……: –
“Mr. Sedley submits that 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” (para 25).
Lord Wilson further stated:
[In] R –v- North and East Devon Health Authority ex-parte Coughlan, [Lord Woolf MR stated:-]
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it might be quite onerous, goes no further than this”. (para 25).
Lord Wilson continued:-
Two further general points emerge from the authorities. First, the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting. Thus, for example, local authorities who were consulted about the Government’s proposed designation of Stevenage as a “new town” (Fletcher –v- Minister of Town & Country Planning ……) would be likely to be able to respond satisfactorily to a presentation of less specificity than would members of the public…..Second……“the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit”. (para 26)
Lord Wilson continued:-
For example, in R. (Medway Council and Others) –v- Secretary of State for Transport ……the court held that, in consulting about an increase in airport capacity in South East England, the Government had acted unlawfully in consulting upon possible development only at Heathrow, Stansted and Thames Estuary and not also at Gatwick…… (para 27).
Lord Wilson added that:-
In Nichol –v- Gateshead Metropolitan Borough Council … Gateshead, confronted by falling birth rate and therefore an inability to sustain a viable 6th form in all its secondary schools, decided to set up sixth form colleges instead. Local parents failed to establish that Gateshead’s prior consultation had been unlawful. The Court of Appeal held that Gateshead had made clear what the other options were……. (para 28).
Applying the law to the facts of the Moseley case, Lord Wilson stated:-
Those whom Haringey were primarily consulting were the most economically disadvantaged of its residents. 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, whilst 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 (unlike 58% of local authorities in England……) Haringey had concluded that they were unacceptable. (para 29).
Lord Wilson further continued:-
“It would not have been onerous for Haringey to make brief reference to other ways of absorbing the shortfall.” (para 30).
As a result, he concluded that the consultation process had been unlawful.
Lord Reed stated:-
“The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision making process.” (para 38).
Lord Reed expanded further as follows:-
“In order for the consultation to achieve that objective, it must fulfil certain minimum requirements. Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme.” (para 39).
“The consultation document presented a proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by Haringey itself. It misleadingly implied that there were no possible alternatives to that choice. In reality, therefore, there was no consultation on the fundamental basis of the scheme.” (para 42).
Lady Hale and Lord Clarke effectively agreed both with Lord Wilson and Lord Reed.
Potential grounds of challenge
Having considered the Supreme Court’s judgment in Moseley we consider that the Government’s consultation paper on powers to deal with unauthorised encampments and unauthorised developments is susceptible to challenge by way of judicial review on the following grounds:
(1) Misleading statements
First, we consider that there is a serious problem with the presentation of the law as it stands in the Republic of Ireland. After several positive references to the law in the Republic during the Parliamentary debates, the consultation document addresses this at pages 10 and 11. The most substantial error is in the sentence: ‘The Irish Government has criminalised trespass in certain circumstances, in conjunction with a statutory requirement for local authorities to provide sites for travellers.’ While there has been a statutory obligation placed on local authorities in the Republic to develop Traveller accommodation programmes pursuant to the Housing Act 1998 there is no correlation between those programmes and the implementation of a criminal provision. The fact that a local authority has or has not made sufficient alternative accommodation available is not a ‘defence’ to any direction or prosecution under Section 19A of the Public Order Act 1994. Section 19A is a criminal provision implemented by An Gardaí Siochana (the Police Force) who have no statutory obligation to provide sites, or to consider if alternative accommodation is available. So to imply that there is a balance or correlation between the function of the local authority as a housing authority and the implementation of criminal trespass law in Ireland is completely incorrect.
We note the statement ‘The legislation does not amount to a ban on all unauthorised encampments. It criminalises encampments that ‘substantially’ damage the land or prevent use of the land by the owner or other lawful users’. In fact, we understand this statement to be incorrect: the legislation in effect bans all unauthorised encampments (the only specific exception is to roadside encampments on minor road for the purposes of the Roads Act).
The focus in the sentence on the term ‘substantially damage’ the land is disingenuous as there are five grounds on which the offence is committed. It is not just about substantial damage. A person commits the offence where they bring or place on any land any object, where the entry or occupation or the bringing onto or placing on the land of such object is likely to: (i) substantially damage the land; (ii) substantially and prejudicially affect any amenity in respect of the land; (iii) prevent persons entitled to use the land or any amenity in respect of the land from making reasonable use of the land or amenity; (iv) otherwise render the land or any amenity in respect of the land, or the lawful use of the land or any amenity in respect of the land, unsanitary or unsafe; or (v) substantially interfere with the land, any amenity in respect of the land, the lawful use of the land or any amenity in respect of the land. Any one or all of the above constitute the offence.
Insofar as the consultation is presenting the Irish legislation as a potential template for changes to the legislation in England and Wales, it is essential that consultees (who clearly cannot be expected to be experts on the situation in the Republic of Ireland) are given a correct and sufficient explanation of the legal position in the Republic so that they can properly assess it is as a template. This has clearly not been achieved in the consultation paper to such an extent that the consultation is misleading to consultees.
(2) Failure to identify reasonable alternative options
Secondly, we consider it is arguable that this consultation paper is fatally flawed because it fails to address a realistic alternative, namely that the perceived problems arising from such encampments and developments could be addressed by the provision of more permanent and temporary sites. It is true that the consultation paper asks consultees whether they can suggest ways in which more site provision could be facilitated in one of the last questions (question 19) of the paper but there is no suggestion that site provision is a viable alternative to the other options identified in the paper.
(3) Failure to comply with the public sector equality duty
Thirdly, we consider that the consultation paper does nothing to address the significant inequality of opportunity suffered by Gypsies and Travellers living on unauthorised sites. We question whether the Government undertook an equality impact assessment before it prepared the consultation paper and regard the failure to identify the realistic option of site provision throughout the paper as prima facie evidence that it has failed to comply with its public sector equality duty in accordance with section 149 of the Equality Act 2010.
In conclusion, for the reasons given above, we feel that this consultation paper is fatally flawed. It fails to present site provision as a realistic alternative option to the various suggested ways in which enforcement powers could be strengthened and misleads consultees on one of the main options advanced. It also seems to us to demonstrate a complete failure on the part of the Government to comply with its public sector equality duty.
In the circumstances we have come to the conclusion that this consultation is susceptible to challenge by way of judicial review and that it should be withdrawn and redrafted.
If you want a chat about this or need advice or want to bring forward a challenge, please contact the Travellers Advice Team on their advice line which is 0121 685 8677 ( Monday to Friday 9am to 5pm).
19th April 2018
 See also Greenberg Administrative Law: consultation, Westlaw 2 May 2017.