29. There is no dispute about the legal principles to be applied. In R v North and East Devon HA ex p Coughlan [2001] QB 213 the Court of Appeal held at para 108 that any consultation with respect to the decision of a public body must:
i) be undertaken at a formative stage;
ii) include sufficient reasons for the particular proposals to allow those consulted to give intelligent consideration and response;
iii) give sufficient time for an adequate response;
iv) must be conscientiously taken into account when the decision is taken.
30. I am satisfied that the consultation process relevant to the decision under review in this case was undertaken at a formative stage. This is an issue which is bound to be fact sensitive but the important point is that when the process starts the ultimate decision should still be fully capable of being moulded and influenced by the response. A consultation which starts with the presentation of a fait accompli is no sort of consultation at all.
31. However, as Davies LJ pointed out in R (Bailey and others) v London Borough of Brent [2011] EWHC 2572 (Admin) at para 104:
‘There cannot necessarily be easy identification of particular formative ‘stages’ in every decision making process…’
The Court of Appeal in that case was specifically considering the application of section 149 of the Equality Act 2010 but this observation applies equally to the common law duty to consult.
32. It is also important to put the issue of consultation into context. There will be many cases in which it will not be possible precisely to time the beginning (or even the end) of the consultation process. For example, it is by no means unusual for particular proposals to have been preceded by earlier different but related proposals upon which there has already been some level of pertinent consultation. The existence of the prior period of consultation does not, of course, obviate the need to consult further but it may have an important influence on the timing, content and duration of the process of consultation which follows.
33. This case provides an illustration of the importance of context. The issue of the future of subsidies to nurseries was the subject of dialogue and debate in January 2011. This continued as part of the subsequent Early Years Review. By December 2012, interested parties had been involved in the exchange of views and information for about two years. Even if a mechanistic approach were taken which focussed entirely on the phase of the process beginning December 2012 I consider that the matter was then still at a formative stage. The final form of the policy towards these subsidies was yet to be determined.
34. The documentation shows that over the relevant period, the defendant gave detailed reasons for the proposed curtailments of the grants. The Nurseries and other interested parties did not agree with these reasons but they were, at least, fully equipped to engage with them.
35. The time reasonably to be allowed for a response to a consultation process is, again, a highly fact sensitive issue. Once more, context is important. Where, as here, the issue upon which consultation is to take place is one in which interested parties have already been recently engaged the time reasonably required for any formal consultation period may well be shorter than in circumstances where the proposal is without precursors.
36. I am entirely satisfied that the defendant conscientiously took into account the views of those who contributed to the consultation process. The fact that the discount of 25% was reduced to 10% and the phasing out of the subsidies was postponed in 2011 is evidence that the defendant was not historically deaf to the representations it received. No doubt there will be many who are convinced that the result was a foregone conclusion but as Davies LJ observed in Bailey at para 194:
‘In the field of important decisions by local authorities of a kind such as the present, nevertheless, experience teaches one that there may be many local residents who will, rightly or wrongly, assume that an announced proposal has in truth already been decided on; and that subsequent consultation or impact assessments or reports will be moulded so as to endorse a predetermined result.’
37. I do not accept that the defendant is open to legitimate criticism for failing to broaden the scope of the consultation. It was reasonable to engage primarily with the nurseries on the issue of grants. The nurseries were most directly affected by the proposals and, in any event, were in a good position to advocate the benefits of the services which they provided to those who used them. In any event, the summary of the consultation procedures set out in the consultation paper presented to Cabinet demonstrates a thorough and conscientious process the involvement of parents in which was both proportionate and timely.
38. Complaint is made that a questionnaire promulgated by the defendant on the proposals was inaptly phrased. The first question was:
‘Do you agree that we should focus available resources on the most vulnerable children and stop the subsidy allocated to a small number of childcare providers in the city?’
I agree that this question could have been improved upon. It gave the impression that focusing on the needs of the most vulnerable children and subsidising the nurseries was inevitably a mutually exclusive choice. Also, the tone of the question was somewhat tendentious. Nevertheless, the questionnaire should not be scrutinized in a vacuum. The contents of the briefing notes and the Consultation document make it clear that the consultees were entirely familiar with the issues and options.
39. Neither am I satisfied that the fact that the nurseries are referred to as ‘businesses’ in some of the defendant’s documentation is an indication that consultees may have been misled into thinking that these were profit making organisations. The use of the word ‘business’ in this context did not carry this implication and, in any event, the consultees were fully aware of the nature of the undertakings of the various providers of nursery facilities who were in receipt of the grants.
40. Taken as a whole, the consultation process in this case was fully compliant with the common law standards referred to in Coughlan and the challenge on this ground must fail.