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Consultation and expressions of interest

Nicholas Dobson v3 blogAuthorities considering budget cuts face fire from many angles. Flaws in consultation, alleged breach of the public sector equality duty and Convention rights to mention but three.

But following the duty on authorities to consider expressions of interest (see sections 81 - 85 of the Localism Act 2011) consultation on budget cuts may now be a lot more complex.

This was apparent in the decision of Collins J on 17 July 2014 in Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin). There the council’s decision to achieve some £2m savings in the libraries’ budget was quashed because of flawed consultation and failure properly to consider an expression of interest under the Localism Act.

Section 81 of the Localism Act 2011 requires relevant authorities to consider compliant expressions of interest in providing a relevant (not health-related) service on behalf of the authority. By section 81(6) a relevant body includes a voluntary or community body, an organisation or trust established for charitable purposes only, a parish council and two or more authority employees.

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Collins J found the consultation to be flawed since (amongst other things) a key element of the proposals (i.e. to reduce the static libraries from 44 to 15) could not be changed.

On the expression of interest issue, the council had rejected the relevant proposal from Greenwich Leisure Limited (GLL) because of "limited detail on how the management operation would work in practice", unacceptable level of reductions to the mobile library service and the need for a Europe wide procurement "with no guarantee that the savings sought by the council would be achieved and a comprehensive and efficient library service delivered". Also outsourcing the entire library service was considered potentially outside the scope of the consultation.

In the view of Collins J, this "strongly suggests that in reality the consultation was not intended to extend to proposals for other means of achieving the necessary savings". Nevertheless, "assuming in favour of the defendant’s case, they did, the expression of interest should have been properly considered".

If consultation had been the only ground, Collins J said he might not have granted relief since the proposals had been considered accepted and considered. However, "the manner in which GLL’s proposals were dealt with coupled with the view that they did not fall within the consultation exercise persuade me that the decision must be quashed."

Consequently:

"The council must, I fear, reconsider. It may be that the most sensible way ahead is to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming."

Comment

Whether or not the decision in Draper endures, authorities will need to be alert to their duty in relation to Localism Act expressions of interest and take these properly into account both generally and so far as properly material to relevant consultation processes. Particular clarity is required in the terms of consultation documents so that all stakeholders and potential respondents are in no doubt as to the precise nature and scope of the proposals and the response expected to them.

Dr Nicholas Dobson is a Consultant with Freeths LLP specialising in local and public law. He is also Communications Officer for Lawyers in Local Government. Nick can be contacted on 0845 017 7620 or This email address is being protected from spambots. You need JavaScript enabled to view it..

© Nicholas Dobson

 

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