| SPOTLIGHT |
Matthew Wyard, Jim Hirschmann and Rosa Thomas analyse the framework concerning the duty to consult in public law. [1]
If Dicey were still around, his scepticism[2] about the need for administrative law would have vanished long ago. Year upon year more and more challenges are issued in the Administrative Court with 2,400 being received in 2022[3]. A significant number now concern the public sector’s consultation duties.
The duty to consult can arise in myriad areas of public law from education (e.g. consulting with schools to see if they can meet a child’s needs) to planning (e.g. amendments to a Development Plan) and from social welfare (e.g. consulting on disability policies) to commercial regulation. It is therefore more important than ever, that those practising in the public law field, in whatever sector, are alive to developments in the law surrounding consultations.
This paper hopes to be a useful note on the key framework concerning the duty to consult in public law, as well as providing an understanding of where to start when dealing with a consultation issue. It comprises the following parts:
When the duty to consult arises
Is there a common law duty to consult?
The Court of Appeal has previously suggested that there is no common law duty to consult see, for instance, the comments of Sedley LJ at §§43-45 in R(BAPIO Action Limited) v Secretary of State for the Home Department [2007] EWCA Civ 1139. Yet, recent lines of High Court authority suggest otherwise, for example §§116-125 of KE & ors v Bristol City Council [2018] EWHC 2103 (Admin) in which Cotter J (essentially) found there to be a common law duty to consult, albeit phrased as the common law duty to act fairly (discussed below). Where, as part of the common law duty of fairness a consultation is required, is there really anything other than semantic differences between a common law duty to consult and a common law duty of fairness?
The three circumstances in which a duty to consult arises
There are, broadly, three occasions where public authorities should consult.
Express duty to consult. Various statutory provisions impose an express obligation on public authorities to undertake consultations before taking particular decisions. For instance:
Alongside legislation, statutory guidance can also require consultation. Where it does, as with all statutory guidance, such a direction must be followed unless there is good reason not to (R v London Borough of Islington ex parte Rixon (1998) 1 CCL Rep 119).
Legitimate expectation. As was established at §408 of Council for Civil Service Unions v Minister for the Civil Service [1985] AC 374 (“GCHQ”) where a public authority has promised that it will consult, fairness requires that consultation to happen. This was confirmed by the Supreme Court in the judgment of Lord Reid at §35 of R (Moseley) v Haringey London Borough Council [2014] UKSC 56: “A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.”
A legitimate expectation can arise from an explicit or implicit promise.
Explicit promises to consult are often found in guidance documents or correspondence from public authorities. In R (Greenpeace) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin) the government had promised the Claimant that a decision in favour of building new nuclear power stations would be preceded by “the fullest public consultation”. The Court found that in circumstances of such a clear and explicit promise, the Government was required to follow through with its promise.
Implicit promises can be borne out of past practice of consultation. In GCHQ (supra) Lord Fraser outlined the test for an implied promise from past practice in the context of an employer’s obligations to consult on changes to employee’s conditions of service, as whether the past practice of consultation was “so well established [that] it would be unfair or inconsistent with good administration for the Government to depart from the practice in this case”.
Practitioners should heed caution before relying on past practice however. In R (Dudley Metropolitan Borough Council) v Secretary of State for Communities and Local Government [2012] EWHC 1729 (Admin) the High Court found that there was no implied expectation of consultation in circumstances where the Defendants had previously carried out a consultation for a similar proposal years before. It found that one incident of consultation did not amount to a practice of consultation such as would give rise to a legitimate expectation.
Fairness. Public authorities can be impliedly required to consult as part of the common law duty of fairness, see Moseley (supra) at §23 per Lord Wilson “…Not infrequently, however, [the duty to consult] is generated by the duty cast by the common law upon a public authority to act fairly.”
The key issue of fairness is of the severity of the decision to those affected. In general, the more serious the consequences of the decision, the more likely there will be an expectation to consult.
In GCHQ Lord Diplock was clear that one category of case in which fairness would demand a consultation is where a decision would take away an existing right or benefit. This view was relied upon in R (LH) v Shropshire Council [2014] EWCA Civ 404 per Longmore LJ at §21 “In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it.”
Of note is that there is no balance of fairness issue. That a consultation may impose onerous requirements on a public authority is not significant when considering what fairness requires, although the need to avoid overly prescriptive procedures that stilt decision making can be considered (McInnes v Onslow-Fane [1978] 1 WLR 1520).
In sum: in any challenge based around consultation, the first issue that the Court will need to grapple with is whether there was a need for the relevant public authority to consult at all. There are three broad scenarios where consultation is required: where there was an explicit promise to consult, an implied promise to consult, or where fairness demands it.
Where it is established that a duty to consult exists, the Court must then consider whether a lawful consultation process has taken place. Therefore, what makes a lawful consultation is the question to which we now turn.
A lawful consultation process
Public authorities have a wide discretion as to how to carry out a consultation, although there are clear guidelines from the authorities as to how a lawful consultation ought to be conducted.
The leading authority is R v London Borough of Brent ex parte Gunning [1985] LGR 168 in which Hodgson J set down the four key principles of a fair consultation, commonly referred to as “the Gunning principles” as set out by the then Stephen Sedley QC. The principles have been approved by both the Court of Appeal (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213) and by the Supreme Court in Moseley where Lord Wilson described the position, at §25, in the following way:
“In R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168 Hodgson J quashed Brent’s decision to close two schools on the ground that the manner of its prior consultation, particularly with the parents, had been unlawful. He said at p 189:
‘Mr Sedley submits that these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, … that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.’
Clearly Hodgson J accepted Mr Sedley’s submission. It is hard to see how any of his four suggested requirements could be rejected or indeed improved. The Court of Appeal expressly endorsed them, first in the Baker case, cited above (see pp 91 and 87), and then in R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 at para 108. In the Coughlan case, which concerned the closure of a home for the disabled, the Court of Appeal, in a judgment delivered by Lord Woolf MR, elaborated at para 112:
“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. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal 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.”
The time has come for this court also to endorse the Sedley criteria. They are, as the Court of Appeal said in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134, at para 9, “a prescription for fairness”.”
In summary, to satisfy the Gunning principles any consultation:
That consultations need to be taken when proposals remain formative has an obvious rationale. However, consultations must not be undertaken too early as this could undermine a public authority’s ability to provide sufficient information to the consultees.
The first Gunning principle does not preclude consultations taking place on preferred options or on a decision in principle, as long as the decision maker’s mind remains open to change (R (Bailey) v London Borough of Brent [2011] EWCA Civ 1586).
As to the sufficient information required this should include:
However the proposer does not have to:
In so far as adequate time is concerned, what is adequate will depend entirely on context. Some relevant considerations might include the size of the group to be consulted, the means of consultation and the complexity of the decision. Ultimately, the case law is full of a variety of different time frames for different issues that have been found to be inadequate and it will be fact and decision specific.
Note that urgency can be a legitimate reason for giving short timeframes (Luton Borough Council and Ors v Secretary of State for Education [2011] EWHC 217 (Admin)).
Conscientious consideration of the product of the consultation is required to ensure fairness.
It is difficult to challenge consultations on this basis as: (i) it is extremely difficult to evidence that the proposer has not given conscientious consideration to the consultation response and (ii) because the proposer has a broad discretion as to how to act following consultation: it does not have to amend its proposal even if there is an overwhelming response against it (although it would need to have good reasons not to).
That being said, in Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) the High Court allowed a judicial review challenge on the basis that the proposer had not conscientiously considered the consultation outcome. In Draper, the proposal was to close local library provision. The proposer failed to consider an alternative option put forward in a consultation response by a charity who offered to run the library. Although there was evidence that the council had looked at alternative options, it failed to seek further information from the charity and rejected the proposal on the basis that it was outside of the scope of the consultation.
Fairness may require a re-consultation in some circumstances. In R (Nettleship) v NHS South Tyneside Clinical Commissioning Group [2020] EWCA Civ 46 [2020] PTSR 928 Lord Wilson at §43 accepted the parties’ position that “there is no duty to re-consult unless there is a "fundamental difference" that has arisen owing to the change in circumstances”.
Remedy
A decision made through an unlawful process will usually be found to be unlawful itself and will stand to be quashed.
Recent cases/illustrations
R (on the application of Swalcliffe Park School) v Wokingham Borough Council and others [2023] EWHC 1451 (Admin) is a case that concerned, amongst other things, a challenge by a school against the local authority’s decision to name it within section I of an Education Health and Care Plan. The Court concluded that the local authority had provided sufficient information in order for the school to properly respond to the consultation (54) but had failed to properly consider the school’s response to the consultation (§55-57 and §89) – in other words, the fourth Gunning principle was not met. A key point in this judgment is that the Court held, as a consequence of section 77 of the Children and Families Act 2014 and the code published pursuant to that section, that the burden for the local authority was to show that it had “very carefully” considered responses to the consultation or, to put it another way, that the “standard of conscientious consideration” had not been met (it is not clear that the code was necessarily determinative of this given that the standard of conscientious consideration applies generally: see for example R (Help Refugees Ltd) as cited above).
R (on the application of Secretary of State for Work and Pensions) v Eveleigh[2023] EWCA Civ 810. This case concerned a public survey carried out by the government prior to the publication of its National Disability Strategy. The Court held that the survey did not relate to an intended decision that would affect a group of people and as such was not a consultation to which the Gunning principles applied. Two specific points of particular interest arise:
R (on the application of Associated Society of Locomotive Engineers and Firemen) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin) is a judgment by Mr Justice Linden. The case concerned the withdrawal of regulations that made it a criminal offence “for an employment business knowingly to introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action.” (§1). There had, in 2015 been a consultation, pursuant to section 12(2) of the Employment Agencies Act 1973, regarding the proposed withdrawal of these regulations. During this consultation most of those who responded objected to the proposed withdrawal. A decision was made in 2016 not to withdraw them. However, in June 2022, and while relying upon the 2015 consultation, the government decided to revoke the relevant regulation without further notice (2). The June 2022 decision was quashed on the ground that the secretary of state had “failed to comply with his statutory duty, under section 12(2) of the 1973 Act, to consult before making the 2022 Regulations” (§3 and §206). The failure to comply was considered to be both:
“…Mr Kwarteng said that he did not think that any change in circumstances in the past six or seven years was “particularly relevant to the changes we are proposing to make” and that he thought that there was “no reason to think any new groups of stakeholders would respond or that they would raise new points.”. According to Mr Stevens, this was the view of “the Government”, as I have noted. However, even assuming that this was Mr Kwarteng’s view on 13 June 2022, and that it was amongst his reasons for deciding not to consult further, it is not clear how he could, fairly or rationally, reach this conclusion or do so consistently with section 12(2) of the 1973 Act.”
Two further cases from November 2023 show instances where judicial review challenges failed to persuade the Court that the consultations were inadequate:
Conclusion
The above outlines the basics of the duty to consult, both when a duty arises and how a lawful consultation process will work. How the duty to consult continues to develop over time remains to be seen.
Matthew Wyard and Jim Hirschmann are barristers and Rosa Thomas is a second six pupil barrister at 3PB.
[1] This article was originally produced for a public law roundtable event held by 3PB Barristers. If you would like to attend future events then please contact This email address is being protected from spambots. You need JavaScript enabled to view it.
[2] A.V. Dicey ‘The development of Administrative Law in England’ [1915] 31 LQR 148.
[3] ‘Civil Justice Statistics Quarterly: October to December 2022’.
