The New Year holds out the prospect of a huge consultation exercise on the extent and nature of cuts in Brent Council's budget for the next two years. The details can be found here. We need to recall that the Council is being forced into these cuts by central government diktat.
However, I think there is another worry here, which is how on earth is the consultation going to be carried out? The sheer complexity of the Council budget over a two year period, coupled with the scale of the change, makes constructing a consultation a daunting task. The governance of Brent Council has been seriously weakened since we won the judicial review on libraries in 2011. Let's look at some of the practical problems behind putting together a consultation that avoids a legal challenge.
1) A huge number of service users and organisations will be affected, some of them drastically. It is therefore likely that a broad range of bodies might consider legal action to counter what they see as a major threat to themselves. Solicitors firms are known to systematically trawl Council documents looking for (to them) lucrative legal actions.
2) One of the principles of a legal consultation is the need for adequate information for the consultees in a form that they might be expected to use. Here the sheer complexity of the task is a major barrier. If there is too much documentation, you can argue that members of the public cannot be expected to wade through; if there is too little, you can say that they are being kept in the dark about important facts. There are many important facts that are far from clear in the Cabinet papers passed in December 2015. For instance, the full extent of "poison pill" arrangements when disposing of buildings, the extent of match funding, the knock on effects for other services, the real meaning of bland phrases like "contain demographic pressures".
3) The Council is required to assess the equality impacts of its decisions. The sheer number of potential impacts, and the complexity of their actual effect on all the different equality strands is colossal. I find it very hard to see how it can be conveyed to a public audience, which arguably undermines the legalty of the consultation. Indeed, I wonder how far the councillors who ultimately make the decision will actually understand the impacts.
4) Getting the public to understand the context of local government. Having been through many such exercises, my experience is that many members of the public are (understandably) quite innocent of how local government is funded and what the realistic options are. This was confirmed in the consultations in Brent last year, but is well known to anyone who has seriously engaged with such efforts. There are a host of basic concepts, such as fiduciary duty, procurement rules, the materiality of particular factors that are simply not widely understood.
5) The false impression it may give people that they are engaged in a referendum exercise where they say yes or no, and the councillors are simply bound by that. By law, the councillors are the decision makers and have to use their own judgements in deciding (for instance) equality impacts. They cannot pass that responsibility on. Indeed there is a danger that the councillors themselves do not understand this, and vote through what the consultation seems to demand, and thereby find themselves subject to a legal action over what is called fettered discretion.
6) The danger of "decibel planning" where whoever shouts the loudest gets the most resources. It is inherent in such exercises that particular groups can organise to protect their own interests. Classically, the wealthier, well connected and better educated tend to be better at putting their case than the more deprived. Yet it is the most deprived who are hardest hit by cuts. In a sense this is an impossible judgement that depends on one's values.
7) The possibility of actual misinformation in the consultation documentation. It appeared to me that some of the options given in the Cabinet papers back in December were not only unrealistic, but might be inherently unlawful. I am particularly thinking of not cleaning residential streets. My understanding was that some level of cleaning was legally required (although the level can be reduced of course) In the past I would have had confidence that Executive papers would have been adequately checked by a lawyer, but following the growing weakness of governance in the Council I am no longer so sure. This could impact in terms of consultees being given an option that was not realistic, as well as the inherent illegality of the proposal.
Constructing a consultation that can adequately navigate these hazards is no easy task.