knowledge 3 November 2020 |

Public Bodies: Consult with Care

Background

In the case before court,¹ two commercial fishermen challenged a Policy Directive (“the Directive”) imposing certain fishing restrictions and made by the Minister under the Fisheries (Amendment) Act 2003.  They argued that it was ultra vires and adversely impacted on their property rights.  They were unsuccessful on those grounds, however, the applicants did demonstrate to the court that the Minister had failed to properly adhere to the terms of a consultation process that he had put in place in advance of issuing the Directive and so they ultimately succeeded in their challenge.

Was there an obligation to consult?

The starting point for the court was a review of the relevant legislation.  Having done so, MacGrath J was satisfied that it did not place an express obligation on the Minister to consult with those who might be affected by the Directive.  He was also satisfied that relevant case law did not necessarily widely imply such an obligation here.  He then went on to consider whether there was any legal principle which would require consultation or an entitlement to make representations in the circumstances.

After reviewing the authorities, he concluded that the obligation of a decision maker to consult or otherwise afford fair procedures in circumstances such as those under consideration here were dependent on factors such as:

• The nature and quality of the decision concerned;

• The nature and extent of the rights or interests advanced by those alleged to be affected by the decision; and

• The nature and extent of the impact, actual or potential, which the decision had or might have on those rights or interests.

MacGrath J was satisfied that although a legislative or quasi legislative measure in nature, the Directive had the potential to, and on the facts, did impact on the interests of a defined and narrow class and number of fishermen and necessitated consultation; rather than anything more. 

What had been expected in the consultation process?

MacGrath J noted that the public consultation process here was launched by the publication of a consultation document by the Minister.  The consultation document stated:

“All relevant issues will be carefully evaluated and subject to a full consultation with stakeholders before the Minister decides if any amendment to the policy is justified….”

The fishermen argued that the consultation document was only the commencement of the process and presented options to be explored.  While the applicants were now aware that various options were being considered, they were unaware of the particular option as recommended to the Minister by his officials and as subsequently decided upon.  They said that they had expected to be consulted again before this final decision was made.  However, no further consultation took place.

MacGrath J was satisfied that given the sequence of events in this case and the wording of the consultation document, it was not unreasonable for the applicants to have formed the impression that before the finalisation of the Directive, all stakeholders would be fully consulted.  That they were stakeholders and perhaps the only ones who would be adversely affected was also recognised by the Minister.  He held that as such, they were persons who had an interest in the process and its outcome and enjoyed certain limited rights in that process. 

Had the Minister acted unlawfully?

The final issue for the court was whether in those circumstances, the failure to further hear, consult or revert to the applicants was unlawful?

MacGrath J held that the obligation placed on the Minister in respect of consultation, while at the lower end of the scale had to be viewed against the process which was expressly outlined in the consultation document.  He approved the following statement from the English case of Coughlan,² namely that “whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly”. 

In this case, the ground rules were established by the Minister and it was unlikely that any grounds for complaint of unfairness or unfair procedures would have arisen if the established procedure had been complied with.  A proper interpretation of the consultation document could only lead to the conclusion that at a minimum, the preferred option would be outlined to the affected stakeholders before a final decision was taken.  This was not done.

This had denied the applicants the opportunity to make focussed submissions to the Minister.  This might have made no difference to the ultimate decision but that was not an answer to an unfairness in the process which in the peculiar and individual circumstances of this case, resulted in noncompliance by the Minister with his legal obligations. 

MacGrath J made it clear that he was not ruling that a second consultation process would or should be undertaken, simply that the process which was adopted by the Minister should have been adhered to as a matter of fairness, justice and law.

Comment

This judgment highlights the need for public bodies to take care in framing and following through on public consultation processes.  However, it is also worth noting that, in his judgment, MacGrath J acknowledged that some limited frailties would not necessarily render a consultation process unlawful or illegal, but that every case is fact-dependent. It is understood that this judgment is now under appeal.