IntroductionWednesbury unreasonableness
3.1A duty to consult may arise as a result of legislation, guidance or the common law duty to act fairly. In addition, public authorities often consult on a voluntary basis in order to garner useful information, forewarn the public of possible change and enhance local democracy.
3.2The circumstances in which a duty arises as a result of legislation, or guidance, depends on the terms in which the legislation or guidance is expressed. It is a little more difficult to ascertain when a duty to consult arises by virtue of the common law duty to act fairly but:
1R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at paras 23–24, 35.•the common law does not impose a general duty always to consult persons who may be affected by a measure;
•the common law may require a public authority to consult with a person who could be affected by the actions it proposes to undertake when that person –
•has a legitimate expectation of being consulted as a result of possessing an interest of a kind that the courts have held to be sufficient to found such an expectation (eg the resident of a care home proposed to be closed);
•has a legitimate expectation of being consulted as a result of a promise or established practice of consultation; or,
•exceptionally, where a failure to consult would be conspicuously unfair;
•whether a duty arises depends on all the circumstances, in particular the statutory context, and there may be cases where a legitimate expectation of being consulted can be overridden in the public interest.
3.3Whatever the basis of consultation, and even when consultation is undertaken voluntarily, there is a legal minimum (sometimes referred to as ‘the
Gunning criteria’)
which, if not met, usually (although not always) renders the consultation process unlawful and any consequential decision liable to be quashed. The public authority in question must:
2R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at para 25.•undertake consultation when the proposals are still at a formative stage;
•give consultees sufficient reasons for the proposal, so as to permit intelligent consideration and response;
•give consultees adequate time for consideration and response;
•take the products of consultation conscientiously into account.
3.4The underlying principle is that of procedural fairness. Accordingly, precisely what is required is always context sensitive.
3R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at para 24.For example,
•when a proposal may deprive someone of an existing benefit or advantage, or affect their enjoyment of legal rights, the standard of fairness required may be higher;
4R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at para 26.and
•a clearer explanation of the proposals may be required from the public authority, when the consultees lack relevant expertise but the proposal is likely to impinge significantly upon them;
5R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at para 26. •taking the products of consultation conscientiously into account does not in general require the decision-maker carefully to analyse them.
6Secretary of State for Communities and Local Government v West Berkshire DC and Reading BC [2016] EWCA Civ 441 at para 64. 3.5Sometimes, fairness and/or the statutory context can require public authorities to consult, not only on their preferred option but, also, on any realistic alternatives.
7R (Moseley) v Haringey LBC [2014] UKSC 56, [2014] 1 WLR 3947 at paras 27–28, 39–41.3.6It can also be legitimate to consult on macro policy changes and then, later, to consult beneficiaries of particular services that might be closed.
8R (LH) v Shropshire Council [2014] EWCA Civ 404, (2014) 17 CCLR 216 at paras 21–26.3.7Because the underlying principle is that of procedural fairness, it is ultimately for the courts to decide whether a process of consultation has been lawful and the
Wednesbury test is not determinative.
9R (LH) v Shropshire Council [2014] EWCA Civ 404, (2014) 17 CCLR 216 at para 29.However, the courts are only likely to decide that breaches of the above principles have resulted in unfairness in cases where ‘something has gone clearly and radically wrong’, in a way that affects at least one group of consultees.
10R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of PCT [2012] EWCA Civ 472 at para 13–14; R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin), (2015) 18 CCLR 458 at paras 18–22.3.8At common law, a public authority cannot avoid a quashing order, where there has been unlawful consultation, simply on the basis that its decision would probably have been the same: it has to show that ‘the decision would inevitably have been the same’.
11R (South West Care Homes Ltd) v Devon CC [2012] EWHC 1867 (Admin) at para 51.The Senior Courts Act 1981 now provides, however, at section 31(2A), that the High Court must refuse to grant relief ‘if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’, unless there is an ‘exceptional public interest’ in granting relief. Section 31(2C) imposes a similar restriction on the grant of permission to apply for judicial review. It remains to be seen how the court will approach this restriction on its traditional function.
12The Bingham Centre for the Rule of Law, the Public Law Project and Justice have suggested that this duty will only arise exceptionally: Judicial Review and the Rule of Law: An Introduction to the Criminal Justice and Courts Act 2015, Part 4 at www.biicl.org/documents/767_judicial_review_and_the_rule_of_law_-_final_for_web_19_oct_2015.pdf. However, in R (Hawke) v Secretary of State for Justice [2015] EWHC 3599 (Admin), as a result of section 31(2A) of the Senior Courts Act 1981 Holman J declined to grant a declaration that the Secretary of State for Justice was in breach of the PSED (under section 149 of the Equality Act 2010); instead, he indicated that his judgment was a ‘declaratory judgment’, following the example of Blake J in Logan v Havering LBC [2015] EWHC 3193 (Admin). See also R (Enfield LBC) v Secretary of State for Transport [2015] EWHC 3758 (Admin) at para 106 (sometimes a witness statement is required from the local authority, to establish that the test is met) and R(HA) v The Governing Body of Hampstead School [2016] EWHC 278 (Admin) at para 33 (these provisions may relate simply to ‘technical flaws’). In R (DAT) v West Berkshire Council [2016] EWHC 1876 (Admin), (2016) 19 CCLR 362, Laing J found it hard to be satisfied that there was no chance of the council reaching a different decision on a reconsideration in case involving highly vulnerable children and, in any event, considered that in such a case there was an exceptional public interest in granting relief.3.9Despite the above, in consultation cases, a great deal of water may have flowed under the bridge by the time of the final hearing so that, unless interim relief has been secured, the courts do sometimes exercise their discretion to withhold relief (beyond declaratory relief) for pragmatic reasons.
13R (Fudge) v South West Strategic Health Authority [2007] EWCA Civ 803, (2007) 10 CCLR 599 at paras 66–67; R (South West Care Homes Ltd) v Devon CC [2012] EWHC 1867 (Admin) at paras 53–62.3.10There is only a duty to re-consult when the public authority is minded to adopt a solution that is so different from the proposal consulted upon that it would be unfair/conspicuously unfair not to re-consult.
14R (Smith) v East Kent NHS Hospital Trust [2002] EWHC 2640, (2003) 6 CCLR 251 at para 45.