3.31R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of PCT [2012] EWCA Civ 472
The Court of Appeal re-stated the consultation principles, including that the courts will usually only grant relief where ‘something has gone clearly and radically wrong’
Facts: the Foundation Trust sought a judicial review of the major consultation undertaken by the Joint Committee of PCT into the reconfiguration of national paediatric cardiac surgical services.
Judgment: the Court of Appeal (Arden and Richards LJJ, Sir Stephen Sedley) held that the consultation had been lawful. Its judgment set out the requirements of lawful consultation, explaining that they were grounded in the fundamental principle of fairness and, also emphasising that relief would usually only be granted where ‘something has gone clearly and radically wrong’ in relation to at least one group of consultees:
8. Apart from the statutory framework, the general law must be considered. We shall deal later in this judgment with the correct approach to an application to prevent a consultation process from taking place. At this stage, it is sufficient to describe the obligation of fairness which the law imposes on any public consultation exercise. The leading authority on this is the judgment of this court in R v North and East Devon Health Authority ex p Coughlan (Lord Woolf MR, Mummery and Sedley LJJ) [2001] QB 213:
‘108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent London BC ex p Gunning (1985) 84 LGR 168).’
9. The Coughlan formula is a prescription for fairness. It is an aspect of fairness that a consultation document presents the issues in a way that facilitates an effective response: see, for example, R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin), (2004) 7 CCLR 557. No doubt for that reason, as will appear below, the consultation document in this case explains at length the successive criteria for change that the JCPCT applied in this case. The consultation document must be clear to the general body of applicants: see R v Secretary of State for Transport ex p Richmond upon Thames RLBC (No 2) [1995] Env LR 390.
10. Another aspect of fairness is that it must present the available information fairly. In this case, because the JCPCT had to collect information from the centres to present the available information it would have to make clear to the centres what information it needed. A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought. The options for change must be fairly presented. Nonetheless, a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435.
11. The object of requiring fairness is to ensure high standards in decision-making by public bodies, and to enable responses to be made which will best facilitate a sound decision as a result. In addition, it must achieve the statutory objective of section 242(2)(b) of the National Health Service Act 2006 of engaging users.
12. If the presentation of information inaccurately would have no material adverse effect on the process of consultation, perhaps because the error is patent, the error is unlikely to amount to unfairness when taken on its own (see generally R v Secretary of State for Transport ex p Richmond-upon-Thames RLBC (No 3) [1995] Env LR 409). However, aspects of alleged unfairness should be reviewed both individually and in aggregate. An individual aspect of unfairness may seem trivial on its own but when seen with other aspects of unfairness it may acquire greater significance.
13. If it is alleged that a consultation process is unfair, clear unfairness must be shown. As Sullivan J pointed out in R (Greenpeace Ltd) v Secretary of State for Industry [2007] EWHC 311(Admin), it must be shown that the error is such that there can be no proper consultation and that ‘something [has] gone clearly and radically wrong’.
On the other hand, it is sufficient to show that the unfairness affects only a group of the persons affected by the consultation: see R (Medway Council and others) v Secretary of State for the Environment [2002] EWCA 2516 (Admin). Unfairness to the general body of consultees is not required.
Comment: The ‘clearly and radically wrong’ test may be useful shorthand to describe when a court may conclude that a consultation process has been unfair, but the ultimate test, surely, is whether the consultation has been ‘unfair’ having regard in particular to the Gunning criteria.