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29 May 2019

Latest High Court decision is a valuable lesson to public bodies

Yesterday’s High Court decision in the case of an interested member of the Northern Ireland electorate (to whom anonymity has been granted) v The Boundary Commission for Northern Ireland provides a salient reminder of the importance of carefully considering all consultation responses received.

The Boundary Commission is responsible, under the Parliamentary Constituencies Act 1986, for consulting regularly on parliamentary constituency boundaries. This statutory process requires a two (or where proposals change in response to consultation, three) stage consultation over a set period. The Commission must take into account the written representations made to it at every stage together with representations made at prescribed public hearings.

The 1986 Act (as amended in 2011) sets out a set of rules regarding the maximum overall size of constituencies both geographically and with regard to the size of the electorate. The Act also sets out a list of specific matters which the Boundary Commission may consider in proposing the boundaries. In the case of Northern Ireland, there are special provisions which allow for changes outside of these parameters to be made in special cases.

The Boundary Commission was charged, in 2011, with the task of reducing the overall number of MPs from 650 to 600. The process of redrawing constituency lines is no simple task, especially where changes may result in a different overall balance of political view. This was considered to be the case in Northern Ireland, and in response to the consultation, Sinn Fein had indicated that it considered the changes proposed would leave a number of constituencies without any nationalist representation. The Boundary Commission’s proposals saw a reduction from 18 to 17 constituencies overall. At an earlier stage, it was proposed to reduce the Belfast constituencies from 4 to 3, though this was dropped in the final round of consultation as it was held to entail a lesser degree of disruption.

The case against the Boundary Commission was that the Boundary Commission had shifted away from its provisional recommendations and relied on the rule allowing changes in special cases without proper legal basis. This was argued to be an error of law, resulting in procedural unfairness and ultimately in a fettering of discretion.

Mr Justice McCloskey ruled that the Boundary Commission had unfairly failed to consider all of the consultation responses. In doing this, the Commission was held to have fettered its discretion by failing to fully consider consultation responses received in the final stage of the statutory process it had followed.

The court said:

‘The Commission… proceeded on the basis of a self-devised stratagem of a general rule and an exception. It failed to appreciate the full extent of what the statutory provisions permitted it to do or what was required of it by the common law. It considered itself bound in some way, though not absolutely, by the proposals published [at an early stage]. I conclude that the Commission thereby fettered its broad discretion. Simultaneously, its decision making process was vitiated by procedural unfairness, as the common law right of all consultees to have their views considered fully and conscientiously and on the basis of a level playing field was frustrated… I conclude that, in consequence of this approach, the Commission, at one and the same time, fettered the demonstrably broad discretion conferred on it by the legislature and acted in contravention of those aspects of the common law principles governing consultation which I have identified.’

During the case, the court set out some helpful guiding principles on consultation which are of wider interest to bodies with an obligation to consult:

  • the common law principles on consultation apply to every stage of the Commission’s activities from the publication of its initial proposals to the publication of its final proposals;
  • there is no hierarchy of consultation responses: all must be considered fairly, conscientiously and with an open mind; and
  • the legislature has entrusted the Commission with a wide margin of appreciation.

A further hearing in June 2019 will decide on the final remedies and order in the case.

Commenting on the decision, Matthew Smith, partner and public law specialist, said:

‘The High Court decision again shows that public bodies need to think carefully about every aspect of the public consultations they run. Not only are expectations about the standards of consultation rising but they need to be legally robust as well otherwise the prospect of a challenge is always a threat that potential opponents can use. Consultations need to be built from strong legal foundations upwards considering everything from the groups engaged with and the methods used through to how they are listened and responded to. The requirements will only increase.’

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