Public Law Case Update - Consultation Edition

22 November 2018

Written by Gowling WLG's public law experts, this specialised edition of our case update offers a focused analysis of the application of legal principles on consultations in seven recent cases.



In this edition, our experts examine the following cases:

  • Failure to consult:
    • R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin);
    • R (KE) v Bristol City Council [2018] EWHC 2103 (Admin); and
    • R (Brook Energy Limited) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin);
  • Failure to consult fairly:
    • R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); and
    • R (on the application of British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin);

Consultation Duties and Requirements

Many decisions made by public bodies have an impact on or affect their stakeholders. Although there is no single overarching duty which obliges public bodies to seek and take account of the views of such stakeholders in making these decisions, a duty can arise in certain cases.

This may be because there is a statutory requirement to consult before making that particular type of decision; the public body has made a commitment to seek views from interested parties; or because in all the circumstances, fairness requires that it should seek those views. Moreover a public body can choose to consult even where it does not have a duty to do so.

The law states that where a public body carries out a consultation, whether because it is required or chooses to do so, it must consult properly. The basic requirements of an adequate consultation are interchangeably referred to as the 'Sedley criteria' and the 'Gunning principles'[1], and have been endorsed by the Supreme Court[2]. They are that:

  • the consultation must be undertaken when proposals are still at a formative stage;
  • sufficient reasons for the proposal must be given to allow intelligent consideration and response;
  • adequate time is given for consideration and response; and
  • the product of the consultation is conscientiously taken into account in the decision-making process.

A significant body of case law has built up in which these principles have been applied by the courts. Notwithstanding this, the courts are continuing to be kept busy with judicial review challenges on the role consultation has or has not played in public bodies' decision-making.

We explore, by reference to some key themes, a number of recent cases.

Failure to consult

As noted above there are certain circumstances in which a public body is required to consult.

This includes, for example, where it has made public statements alluding to the prospect of a formal consultation being carried out, as confirmed in R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin), which concerned a decision by the defendant to change the provision of health services. Here the Clinical Commissioning Group (CCG) had engaged in a lengthy period of public engagement, but had made it publicly known that it intended to consult on the proposal following that engagement. It later decided not to follow through on that intention on the basis that its plan had directly and substantially been influenced by and during the public engagement and there was to be no significant change to the existing service provision.

In this case, the court held that since assurances had been made that consultation would follow the public engagement, there was a legitimate expectation that this would happen and there was no good reason for not fulfilling this expectation. The court noted that while there had been some public engagement on the development of the proposal there had not been any engagement on the proposal itself. The CCG's decision was quashed because of the failure to consult.

Similarly, in R (KE) v Bristol City Council [2018] EWHC 2103 (Admin) the court quashed the Council's decision not to consult on a budgeting decision that impacted funding for special educational needs. In this case it was held that not only did the Council have a statutory duty to consult but it also had a common law duty. The latter was on the basis that not to consult particular stakeholders who would be significantly affected by such a significant and focused decision was unfair.

In reaching this conclusion the court confirmed that the nature, extent and impact of the specific decision being taken would determine whether and when a common law duty to consult arises.

Conversely, a claim for failure to consult was dismissed in R (Brook Energy Limited) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin) which challenged the government's decision to change the criteria that needed to be met for payments to be made under the Renewable Heat Incentive Scheme.

Here, the claimant had argued that a duty to consult was triggered by an established practice of consultation on similar issues within the scheme and that this meant it had a legitimate expectation that consultation would be undertaken in this instance. The court disagreed. It ruled that the claimant had failed to show that any assurances had been given, whether by past conduct or an express promise, that consultation would take place.

Failure to consult fairly

Where a public body does consult - irrespective of whether it is under a duty to so or otherwise - it has an obligation to do so fairly. Among other things this includes consulting in a manner which enables consultees to make a meaningful response.

We look at two recent cases that have considered this particular consultation principle.

The first - R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) - concerns the Lord Chancellor's decision to reduce fees under the Litigators' Graduated Fee Scheme. The decision was challenged on the basis that the Lord Chancellor had failed to disclose, as part of the consultation process, certain analysis relevant to the justification of the proposal. The court found that there was no good reason for the non-disclosure of the information and the failure to disclose it caused prejudice to consultees, as without that information they could not have made an intelligible assessment of the proposal. The court held that non-disclosure of the analysis rendered the consultation so unfair as to be unlawful and quashed the decision for that reason.

In the circumstances of this case, the underlying information was crucial to an understanding of the reasons for and justification of the proposal. Without that information those from whom views were being sought could not respond in a meaningful way.

In the second case - R (on the application of British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin) - the claimant sought to argue that there were a number of reasons why the commissioning board had carried out an unfair consultation process in relation to its proposal to remove homeopathic medicine from items routinely prescribed in primary care. The contentions included that consultees had not been provided with sufficient information in order to give intelligent consideration to the proposal and that the defendant had inaccurately summarised the homeopathic subject which led to consultees being misled in certain respects.

The court dismissed the claim and ruled that the board had given consultees a fair explanation as to why it was proposing the change and had asked a broad open question enabling active and effective engagement. Moreover the consultation responses did not suggest that consultees had misinterpreted or been misled by the consultation paper. It was noted by the court that where the consultation document presents a fair and balanced view of the information required, in line with the Sedley criteria, the consultation process could not be considered unlawful.

Failure to consider the product of consultation

It is uncontroversial to say that any consultation that is undertaken is of little use if the outcome of the consultation is not duly considered and taken into account within the decision-making process. It is not enough to simply pay lip service to the principle of consultation; the responses to the consultation need to be given full and proper regard.

Precisely what this entails will be informed by the circumstances of the case. Also, while public bodies must be able to demonstrate that the outcome of the consultation has been taken into consideration that does not necessarily mean (as noted in Kohler - referred to below) that they have to disclose the internal workings of their decision-making processes or the information used to assess the responses to the consultation.

The importance of this principle was demonstrated in R (Kohler) v Mayor's Office for Policing and Crime [2018] EWHC 1881 (Admin) in which the decision to close a police station was challenged. Among other grounds (on which the challenge failed) the claimant had contended that, in making the decision, the defendant had failed properly to discuss and consider a detailed consultation response proposing that further research should be taken before any decision was implemented.

The court agreed. The evidence before it showed that the decision-maker had not given proper consideration to the material point in that response, i.e. to the proposal that closure of the police station be deferred until information on savings achieved through technology savings was available and could be assessed. Although the decision-maker had considered other alternative proposals, they had not considered this particular alternative. This meant that the decision-making process was flawed and therefore the decision was unlawful.

A similar line was taken in a case concerning a local authority's decision to close several local libraries in its area in order to make costs savings in its budget for 2018/2019. This led to two separate applications for judicial review being considered together in R (WX) v Northamptonshire County Council [2018] EWHC 2178 (Admin).

In response to its consultation setting out three options for potential cost-saving measures in library provision, the local authority received over 5,000 responses. Of the options set out, Option 1 (under which 15 of the 36 libraries in the area would be retained and a community managed library model developed for the other 21 libraries) received the greatest support. However, the responses also revealed a campaign for a fourth option that had not been put forward within the consultation. Having considered various reports and analysis on the consultation responses and also on the Council's final budget, the decision-makers adopted a recommendation to support Option 1 but with further work to be done before a final strategy was developed - which further work would also enable full and diligent exploration of all of the suggestions submitted by consultees. Shortly after this decision was taken, the local authority's auditors issued a statutory advisory notice relating to the Council's budget setting proposals. This led to an urgent revised recommendation and decision on the Council's library services without any further work being undertaken to develop a final strategy. The decision was to retain the same 15 libraries as under Option 1 but to close the other 21 libraries instead of developing a community managed model for them - this was Option 2 in the original consultation (and therefore not the option receiving the greatest support).

The claimants' challenges were brought on a number of grounds, including that the consultation was unfair and that there was a failure to take account of the product of the outcome of the consultation. The court dismissed the unfair consultation challenge but agreed that the product of the consultation was not conscientiously taken into account. That there was pressure on the local authority as a result of the auditor's notice did not relieve it of the need to act lawfully in giving full and proper regard to consultation responses.

Concluding Observations

It can be seen from the above that all of these cases are highly fact-sensitive. Careful consideration is needed of all of the circumstances of the case in order to determine whether the well-known principles that apply in relation to consultation duties were followed.

The relevant requirements will not be met simply by virtue of a consultation having been conducted. The nature and extent of the consultation undertaken, the level and type of information provided to consultees and the consideration given to consultation responses all play an important part.

Legal challenges based on non-compliance with consultation duties and/or consultation principles continue to fill the courtrooms - yet many can be easily avoided by taking appropriate advice on the consultation and decision-making process.

Moreover, in some cases public bodies may be able to defeat the challenge by relying on section 31(2A) of the Senior Courts Act 1981. This provides that the court must refuse to grant relief on an application for judicial review if it appears to the court highly likely that the outcome for the claimant would not have been substantially different if the conduct complained of had not occurred. However, to date there have been few cases concerning consultation matters where the court has declined relief on this basis - essentially because it is difficult to be satisfied that the final decision would have been the same irrespective of the failure to comply with the consultation principles.

To conclude, rather than trying to rely on an argument that the outcome would have been no different, the better option for public bodies to minimise and mitigate the risk of legal challenges to their decisions is to carry out a thorough, fair and proper consultation in line with public law requirements.

Footnotes

[1] Formulated by Stephen Sedley QC (as he then was) in R v London Borough of Brent ex parte Gunning [1985] 84 LGR 168
[2] R (Moseley) v LB Haringey [2014] UKSC 56


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