This week a High Court judge took a well-aimed swipe and swatted the Trade and Industry Secretary and the Prime Minister. Mr Justice Sullivan ruled in favour of Greenpeace and against the Government over its plans to go ahead with the construction of up to ten nuclear generators. He said the DTI’s promised “fullest public consultation” had been phoney, a phantom exercise. “No actual proposals,” the judge said, had been set out. The information given to the public had been “wholly insufficient for them to make an intelligent response”. The exercise, conducted before last year’s Energy Review, had been “manifestly inadequate” and “procedurally unfair”. Something “had gone clearly and radically wrong”.

Splat! It is always a pleasure to see cheating ministers and civil servants caught in the camera flash of judicial inspection. The Secretary of State, Alistair Darling, had the grace to sound contrite and promised a new consultation. Our unhinged Prime Minister declared that it would make no difference: a remark that Greenpeace should seize upon with delight when it objects to the next consultation. In a one-year undergraduate law course at Cambridge 35 years ago, any fool could have gained, as I did, a better understanding of the idea of “due process” than the Prime Minister seems to have absorbed in all his years at the Bar.

Is Tony Blair reckless of the effect of the sentences he puts together, or is he just very, very thick? How many ways are there to explain to a slow-witted student that if, in the same breath as you promise a full consultation, you announce that it won’t make any difference, people will conclude that your consultation will be conducted in bad faith? If Mr Justice Sullivan had declared before taking evidence from Greenpeace and the DTI that, whatever he heard, he had already decided on his verdict, wouldn’t Mr Blair have felt this was a teeny-weeny bit unfair?

If . . . oh sod it, what’s the point? He won’t be around much longer anyway. An American lady once remarked that such was the polish imparted by a top-class public school education that you often had to be married to an Englishman for about ten years before you realised he was just dim. I suspect that since embracing Mr Blair a decade ago the British electorate have been involved in just such a marriage of discovery. And David Cameron? Oh, please God, let it not be so. Proceeding up the aisle, I shudder at the possibility and, for the moment, dismiss it. . . . All of which has distracted me from what I meant to say, which is that Mr Justice Sullivan was wrong. Or rather that a court of law is no place for useful judgments about the genuineness or otherwise of a public consultation.

As a quasi-judicial concept, the whole idea of “consultation” is broken-backed and should be discarded. Not that as human beings or human institutions we should cease to consult other interested parties about the things we propose — it is often sensible to do so. But we should remove the process from the pedestal it occupies in administrative law, abandon the attempt to decide what is or is not a “proper” consultation, divest the word of its uniform, badge and little cap, and allow it to return naked to where it came from: a common English noun, occasionally useful, but interpretable in a wide variety of ways, its meaning fluid and dependent on cirumstance.

First, though, let us remove and retain something serviceable in its satchel. Notification. Notification is justiciable. Part of any consultation (as Mr Justice Sullivan usefully observed) must be to let consultees know what are the plans on which you are consulting them. All proposals by government, national or local, that affect individual citizens, ought, where feasible, to be communicated to those they may affect.

This for three possible reasons: first, government may (or may not) care whether people approve of what is proposed; secondly, those affected may know things government does not know, and may need to learn before concluding its plans; thirdly, notification is good manners, allowing citizens to plan their own lives better.

Imagine you are the Barchester Borough Council and contemplating reducing refuse collections from a weekly to a fortnightly service. You should notify residents of the proposal. You may also invite their comments. A big wave of public anger might cause you to change your mind. A local business may want to tell you about the particular nature of its waste, which after a week will rot and stink. And the people at No 37b who were planning to reduce the size of their dustbin area may now wish to put that plan on hold.

Such notification is useful; so is the invitation to respond; and the question whether the plan was properly notified and explained, and whether time was given for responses, and whether anyone read them, is something into which the courts are well able to inquire, and on which they can adjudicate. With none of this can one quibble.

But call it a “consultation” in the formal sense of that term and the exercise is pushed on to difficult ground, inherently so. The first difficulty is that there is really no agreed popular definition of the term, and so far as there is, the popular understanding conflicts with politicians’ understanding. This is a recipe for resentment and indignation.

Most ordinary citizens would, if asked, say that were a plan to be “put out to consultation”, and almost everyone consulted were to object strongly, yet the plan were to be proceeded with regardless, then that was not a “proper” consultation. People would (and do) then feel cheated. But most ordinary citizens would be wrong. In administrative law a consultation is not a referendum. Let me take a stab at a definition: an invitation to comment, backed by an implicit undertaking to consider (in good faith and with an open mind) such comments as are made, before any decision is made. This leaves the consultor free to weigh, consider, and after due consideration to reject, any or all of the public response.

Though I placed them in brackets, two terms here are crucial: “in good faith” and “with an open mind”. If one can prove that the consultor was only going through the motions of consulting, and never really open to changing his mind, then, yes, the consultation might be struck down as invalid. But how do you prove that? If the consultor is canny you never will. How many of us have encountered the chap with the bedside manner — the gift for making you think you are being heard when you are not?

Equally we encounter those whose dismissive attitude conceals an underlying willingness to listen and reconsider. Such assessments are not a field into which courts are well equipped to venture.

One may suspect, but a careful administrator will not by any deed or statement betray that his mind was closed. And into his mind itself a court has no window.

In this week’s nuclear case the DTI was simply stupid to give the game away as it did, and Mr Blair stupid to confirm it; but courts will not often be so lucky as to find hard proof like this of bad faith. As with the award of honours to party donors, this Government has become so arrogant and slipshod that it is easily caught out because it cannot even be bothered to go through the motions. But in an insistence that Government go through the motions more fastidiously, salvation does not necessarily lie.

The Cabinet has evidently decided that nuclear power generation is the way forward. They have equally evidently decided that maintaining Britain’s “independent” nuclear deterrent is the way forward. Let them say so. Let them invite whatever response others may care to give. But let them cease to call it a consultation. By this we are more insulted than by leaders who are not afraid to say that they are taking a lead.

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