The duty to consult

Jun 13, 2022 Features / Columnists, Peeping Tom

---

Kaieteur News – Unlike what many people may feel, the concept of meaningful consultation is underdeveloped within constitutional law. And unlike what some have tried to do, it is not simply a matter of transposing principles of administrative law to constitutional law.
The PNC/R plans to challenge President Ali’s appointments to a number of commissions, including the Integrity Commission and the Police Service Commission. It is expected that the principal ground for the challenge will be the President’s failure to satisfy the requirements of “meaningful consultations.”
The requirements of “meaningful consultations” are defined in the Constitution. A meaningful consultation requires that the persons responsible for consultation has to first identify the persons or entities to be consulted, write to these persons or entities indicating the subject matter of the consultation/s; and give a date for the intended decision on the subject of the consultation.
The second set of requirements require affording those to be consulted a reasonable opportunity to express an opinion on the subject of the consultation. There is no specified requirement for any curriculum vitae of persons likely to be considered for appointment. There are no specified requirements for the persons responsible for seeking consultation to provide reasons or justification for any choice.
Case law on meaningful consultations remains an underdeveloped area of constitutional law. This accounts for the over reliance on administrative precedents. But there are dangers in doing so.
Administrative case law, concerning the need for meaningful consultations, usually involves challenges brought by parties directly affected or likely to be affected by a decision. Constitutional challenges, on the other hand, tend to involve parties not directly the subject matter of consultations. As such, one has to be cautious in importing principles from administrative law to constitutional law.
Reg. V Brent LBC [1985], for example, concerned the non-fulfillment of mandatory procedural requirements of the Education Act. The Court held that the failure to comply with the laid down requirements invalidated the subsequent decision.
The so-called Sedley principles were proposed during arguments in that case. They were to the effect that the consultation must take place at a formative stage, that the proposer must give sufficient reason for the proposals, that the proposer must provide adequate time for consideration and response; and that the response must be conscientiously considered in arriving at a final decision.
The above principles were proposed in order, it was argued, to make the consultations fair. But Guyana’s Constitution does not speak to fairness in appointments to Constitutional Commissions.
The President of Guyana is not required to be fair in his decision, only to engage in meaningful consultations, as defined by the Constitution. Consultations can be meaningful without arriving at a fair outcome. It is for this reason that Guyana’s Constitution does not require that the President provide justification of reasons for his proposed choices.
Similarly, in R V Secretary of State for Social Services [1986], the Court laid down its understanding of the mandatory consultations under the Housing Benefit Scheme: “The essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice; to achieve consultation, sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice; sufficient time must be given by the consulting to the consulted party to enable it to do so, and sufficient time must be available for such advice to be considered by the consulting party…” The Court did not make any reference to the need to justify any decision.
It was further held in that case that, “Where insufficient consultation is alleged, the challenge is to the vires of the statutory instrument; accordingly, the correct test is whether there has been sufficient consultation, rather than whether the consultation process fails to satisfy the test now known as “rationality,” formerly the “unreasonable” test in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA.
Where there is a statutory duty to consult, there remains a requirement of procedural fairness (as opposed to a fair outcome). The President of Guyana therefore need not make a decision that is fair; all he is required to do is to satisfy the procedural requirements of consultation.
In R (Moseley) v Haringey LBC [2014], Lord Reed held that, “Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme.”
A simple reading of this decision may suggest that for the formal and procedural requirements for consultation to be met that the persons or entities being consulted must be provided with the main reasons for a proposed decision. The above case however involves public participation in decision-making as distinct from consultations in making of appointments to constitutional bodies.
The contexts are different. In the case considered above, the consultees were directly affected or likely to be affected by the decision. In the matter of consultations for appointments to constitutional commissions, there is no direct impact on the consultations on appointments to constitutional bodies. It cannot be equated with public participation in decision making, thus highlighting the dangers of wholesale transposing of principles of administrative case law to constitutional law.
(The views expressed in this article are those of the author and do not necessarily reflect the opinions of this newspaper.)

---

---