Isle of Man: Consultation - To Be Fairly Asked, You, First, Have To Be Fairly Told

Last Updated: 10 February 2015
Article by   Simcocks

What do you think?

The importance of a dialogue between Government and the public is well recognised in the Isle of Man. A glance at "" under the search "Consultation" contains the following:

"Consultation is a vital part of a caring society and an essential means of two way communication between Government and the public. As such, it is very much in line with the principles of openness and community focus endorsed by the Isle of Man Government and Tynwald.

The purpose of consultation is to gather view and comment so that issues are decided, as far as possible, on consideration of all of the relevant information and arguments. It informs the decision making process, raises points to be taken into account, that might otherwise have been overlooked."

In June of 2008, the Council of Ministers produced the "Isle of Man Government Code of Practice and Consultation" document which sets out six consultation criteria which must be followed in consultation documents. The criteria are these:

  1. Consult widely throughout the process, allowing a minimum of 6 weeks for a minimum of one written consultation at least once during the development of the legislation or policy.
  2. Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses.
  3. Ensure your consultation is clear, concise and widely accessible.
  4. Give feedback regarding the responses received and how the consultation process influenced the policy.
  5. Monitor your Department's effectiveness at consultation.
  6. Ensure your consultation follows best practice, including carrying out an Impact Assessment if appropriate.

What was intended by the Code is reflected within its introduction... "Ministers have discretion not to conduct a formal or written consultation exercise under the terms of the Code, for example where there is a national, international or operation lead or where the issue involved is very specialised and there is a very limited number of interested parties who have been directly involved in the policy development process. In these circumstances the general principles of the Code should still be followed as far as possible, and the Department should consider how to ensure that the public is made aware of the policy, for example through a press notice or statement on the Department's website. This should state the Minister's reason for their decision."

And further...

"The purpose of consultation is not to be a referendum but an information, views and evidence gathering exercise from which to take an informed decision on the content of proposed legislation or policy."

The current consultations section of the Isle of Man Government website shows ten ongoing consultations, in areas as diverse as inviting comments on the Equality Bill, proposals in respect of new drivers, the draft Central Douglas Master Plan, and the Merchant Shipping (Fees) Regulations.

All discussions between the elected and the electorate are not Consultations. Although not expressed as being a formal process of consultation, 'The Big Debate' was described by the Minister For Policy And Reform, Chris Robertshaw MHK, in the following terms:- "The idea of The Big Debate is to look beyond the next General Election to start talking seriously about what kind of Island we will leave to be inherited by our children and grandchildren. There is no subject more important than this."

In the Isle of Man [and in England] increasingly, both local and national, public bodies are engaging with those who elect them, or who may be affected by a decision they intend to make, by way of a consultation process. The Supreme Court, in England, has very recently in the decision of R v London Borough of Haringey (Judgment given on October 29 2014) reminded those who commence a consultation (in that case, a local authority in England), of the proper requirements for such a consultation process.

A consultation process may be obligatory or be optional because of a Statute, or may arise under the common law. Although some differing principles arise, depending on why a consultation takes place, the necessity that the process to be fair is consistent throughout.

What then, is a fair consultation?

The Background to Haringey

To put matters in context, in the particular matter before Their Lordships, a specific statutory requirement [under a scheme known as the Council Tax Reduction Scheme] required local authorities to consult interested persons, on a draft of that Scheme.

Between August and November of 2012, the London Borough of Haringey purported to consult interested persons, including the residents of Haringey, on the draft of its proposed Scheme, and thereafter, a Scheme was enacted which was in substantially the same terms as the draft that it had circulated previously.

There then followed judicial review proceedings before the High Court, the Court of Appeal, and ultimately before the Supreme Court, commenced by residents of Haringey, who sought to quash this new Scheme, criticising the consultation process that had taken place, as being unfair.

The Haringey resident who appealed to the Supreme Court had, prior to the introduction of the new Scheme, been in receipt of what in England is known as the Council Tax Benefit. In real terms this meant that she previously had been receiving benefits to a total of 100% in respect of her Council Tax, whereas following the new Scheme post the consultation process, she would have been required to pay 19.8% of the full Council Tax rate.

Although Haringey, and Council Tax, may seem a long way away, from an Isle of Man perspective, the relevance of this decision should not be lost on any public body looking to undertake meaningful public participation in any decision making process, by way of consultation, whether or not that process arises because of statutory requirement, or under the common law. It also raises a wider question of when the public is being asked to comment or debate upon proposed changes, what really amounts to an informed debate?

The legal tests

The Supreme Court reviewed the appropriate legal tests and as a part of that process, highlighted the distinction, between a statutory duty of consultation (as existed in the specific facts of this matter) or the common law duty for a public authority to act fairly, when it consulted.

In the Haringey matter, the Court appreciated the local Council was discharging what was described as "an important function in relation to local government finance, which affects its residents generally. The statutory obligation before making a scheme is, "to consult any major precepting authority, to publish a draft scheme", and critically, to "consult such other persons as it considers are likely to have an interest in the operation of the scheme."

In this matter, all residents of the local authority's area could reasonably be regarded as falling into that latter category. In the specific context of that statutory consultation "the purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of the consultation was to "ensure public participation in the local authority's decision making process". (my emphasis added)

Identifying, under a common law duty, what can be considered fair is, as Lord Wilson identified, "not susceptible of much generalised enlargement".

Under the Common Law, a duty of consultation will exist in circumstances where there is a legitimate expectation of such consultation, usually arising from the interest which is held to be sufficient to found such an expectation, or from some promise, or practice, of consultation.

However, when considering what the Courts have called the "prescription for fairness" some headline features do emerge:-

In a matter involving the proposed closure of a home for the disabled, in 2001, Lord Woolf MR said ... "It has to be remembered that consultation is not litigation... the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. It's obligation is to let those who have a potential interest in the subject matter know in clear terms what proposal it is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."

In 1995, Simon Brown LJ observed "the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit."

Again, in the English context (although not without interest in terms of Isle of Man connections with London and beyond) in the consultation process concerning airport capacity in South East England, the Government were held to have acted unlawfully in consulting upon possible developments only at Heathrow, Stansted and the Thames estuary, but not also at Gatwick.

Even in matters required by statute, where the requisite consultation is limited to a preferred option, the Courts have made it clear that "fairness may nevertheless require passing reference to the made to be arguable yet discarded alternative options."

This fairness requirement embraces all spheres of life, from air travel, to education. So, in 1988 (in the context of the closure of sixth forms in secondary schools in Gateshead and the proposition being to replace them with a sixth form college) "a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are." (my emphasis added).

Not everyone has to be asked, all the time.

Expectation to be Consulted

Arguments in respect of the right to be consulted are not unknown to the Manx Courts. In 2003 the Staff of Government Division heard the appeal of Bride Commissioners who argued that they had a legitimate expectation to be consulted by a Government Department, prior to that Department granting a sea bed lease and permission to build on the sea bed. They unsuccessfully argued, amongst other matters, that by analogy an established practice existed for on land based planning applications, and that it should extend to sea bed developments. The Manx Court, in rejecting the Commissioners arguments did recognise, however, as had been recognised in England that:-

"a duty of consultation may arise from a legitimate expectation of consultation aroused either by a promise or by an established practice of consultation."

Decision making has not become open to all, and every step which a local or national government takes does not require consultation. After all, politicians are elected to make decisions. Lord Reed make it clear "there is no general common law duty to consult persons who may be affected by a measure before it is adopted".

Where consultation does take place, the general approach differs from the statutory duty of consultation where much depends upon particular wording and context of the statute, and the purpose for which the consultation is to be carried out.

As the Court identified in Haringey... "the duty may, for example, arise before or after a proposal has been decided upon; it may be obligatory or may be at the discretion of the public authority; it may be restricted to particular consultees or may involve the general public. The identity of the consultees may be prescribed or may be left to the discretion of the public authority; the consultation may take the form of seeking views in writing, or hold in public meetings; and so on and so forth."

All of this leads to the entirely sensible, suitably flexible view that "a mechanistic approach to the requirements of consultation should therefore be avoided."

It has to tell you enough

Returning to Haringey, the Supreme Court recognised the practical mechanics involved, in dealing with all other possible alternatives to any proposal, which may have been in circulation and also had regard to the changing circumstances that any particular matter may dictate...

"...... nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection. The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy. Nevertheless, enough must be said about realistic alternatives, and the reasons for local authorities preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought."

It's good to talk

The flaw in being invited, in any context, to make a decision in the absence of balanced choices and adequate information, is obvious. For a debate to be healthy, those participating in it must appreciate the real context, and basis of what is being proposed. The Courts, in the context of the consultation process, and countless other areas, have been recognising this reality for many years.

All public authorities that seek to engage with the public in a consultation process must appreciate how this "prescription for fairness" applies to that process, including any documents issued, if such a process is to be fair. Simply engaging, through a process labelled 'consultation' with the public, as a step, is not itself enough, in the absence of fairness.

It remains to be seen whether an increased dialogue on matters of general government policy, or specific issues couched as being of significant national or local importance, within the Isle of Man will give rise to more arguments that an increased number of decision making dialogues amounts to an established practice, or indeed, of itself amounts to a promise that if broken, will allow a challenge to any decision taken in the absence of consultation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions