Was the outcome of a government consultation pre-determined?

The case of The Electronic Collar Manufacturers Association, Petsafe Limited V The Secretary of State for Environment, Food And Rural Affairs 2019 highlights the importance of fairness in the consultation process, as explained below.

The Electronic Collar Manufacturers Association (ECMA) and Petsafe Limited (the Claimants) sought judicial review of Defra’s decision to ban the use of hand-held, remote-controlled e-collar devices for cats and dogs. For context, ECMA represents manufacturers/suppliers of e-collars including Petsafe. The use of e-collars is controversial because a remote device is used to trigger an electronic pulse or emit a noxious spray to the cat or dog via their collar.

The Claimants argued that Defra’s consultation process (and its decision to ban e-collars) was unlawful because Defra had a pre-determined agenda to secure a blanket ban of e-collars in all circumstances. The ECMA and Petsafe Limited made the following key points:

• the absence of consultation on alternative options suggested that the Secretary of State was not open to any alternatives to an outright ban. This was reflected in the consultation document itself which says: ’Defra has concluded that the time is now right to adopt a legal ban on the use of e-collars in England’;
• on the day before the consultation window opened, Defra’s official Twitter feed posted quotes supporting a ban but did not include any quotes from organisations opposing the ban;
• comments made by the Secretary of State before the consultation closed indicated support for a ban on e-collars;
• the consultation paper was only four pages long; and
• the consultation response window was only open for six and a half weeks.

On 24 October 2019, the High Court considered the case and held that the Claimants had not established any of their grounds of challenge. The claim for judicial review was dismissed but the judgment contained a number of comments on the conduct of the consultation and as such there is much that consulting bodies can learn from the findings in this case.

The Court noted:

’there are aspects of the Secretary of State’s approach to the introduction of a proposed ban on e-collars which are justifiably open to criticism’

It was further noted that the consultation process was far from perfect and could have been better. For example, the Court observed that:

‘the Secretary of State could have expressed himself in some less trenchant terms; the Consultation Document was brief; it could have referred to alternative options; in places it used unfortunate language.’

This case also provides an interesting counterpoint to the decision in Moseley, where the consultation was held to be misleading and procedurally unfair for failure to provide information about options other than the one being consulted on. In some quarters (and we would say wrongly) this was taken as authority for the proposition that a consulting party could never lawfully consult on a single option. Petsafe puts that misapprehension firmly to rest and one of the key factors on which the Court relied in reaching its decision was the large number of responses received (approximately 7,000), including a very detailed set of representations from the ECMA itself. Those responses demonstrated a clear understanding on the part of the consultees of the issues they were being asked to consider, and of the fact that there were alternatives to the proposed ban, the merits of which they felt able to weigh. Accordingly, in applying the Gunning principles, the Court found that consultees had been given sufficient information to enable them to give ‘intelligent consideration’ to the proposals.

The Petsafe case is fascinating in particular because the response of consultees served to make good a series of accepted deficiencies in the consultation process. Of course, we would not recommend that those consulting in the future seek to replicate those deficiencies! It remains crucial for consulting bodies to:

• consult when proposals are at a formative stage;
• provide sufficient information to enable consultees to give intelligent consideration to the proposals;
• ensure good consultation design, so the consultation process stands up to legal scrutiny in its own right, rather than relying on the number of responses received to demonstrate lawfulness;
• consider the use of language in the consultation document to show that a decision has not been pre-determined;
• take care when using Twitter which can be helpful to promote consultations but carries its own set of risks;
• ensure that all communications during the consultation period are neutral;
• provide adequate time for consultees to respond; and
• conscientiously consider responses before any final decision is taken.

However, Petsafe does serve as a useful reminder that ultimately the question is whether a consultation viewed in its entirety is fair. Seldom if ever will consulting bodies design and execute a perfect consultation. The High Court has flagged some useful arguments for those who fall short in this regard but whose proposals have nevertheless been communicated in a timely way, and with sufficient clarity, to allow for proper consideration and comment.

Cases:

• The Electronic Collar Manufacturers Association, Petsafe Limited V The Secretary of State for Environment, Food And Rural Affairs [2019] EWHC 2813 (Admin)
• R (Moseley) v Haringey London Borough Council [2014] UKSC 56 [2014] 1 WLR 3947
• R v Brent London Borough, ex parte Gunning (1985) 84 LGR 168

The Claimants subsequently appealed the decision. The appeal was heard by the Court of Appeal on 11 May 2021 and the appeal was dismissed.