18. So these are the principles to be applied in working out whether a duty to consult arises or not. Let us assume that it does. The next question is how it should be carried out. Plainly the answer is that the consultation must be carried out fairly. In R (Baird) v Environment Agency and Arun District Council [2011] EWHC 939 (Admin), at paras [50]–[51] Sullivan LJ stated that a consultation will only be so unfair as to be unlawful when something has gone ‘clearly and radically wrong’. This strong test was affirmed in R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472, 126 BMLR 134 by Arden LJ at para [13].

19. There has been a debate before me whether this remains the test following the recent decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, which was a case concerning a statutory consultation on the implementation in Haringey of a council tax reduction scheme in the light of the withdrawal by the government of the council tax benefit scheme and the passing on of its operation (with less money) to local authorities. It was said that the consultation was unfair because it in effect applied Henry Ford’s prescription about the Model T: ‘any customer can have a car painted any color that he wants so long as it is black’. Haringey only consulted on its sole proposal, which was to pass on the cut, and did not set out any alternatives (such as keeping it at the old level and paying for it by cutting other services or by increasing council tax).

20. At para [27] Lord Wilson stated that ‘fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options’. As I read his judgment he did not seek to alter the high test propounded by Sullivan LJ for a case where the duty was imposed at common law. Rather, to my mind, he applied it as the consultation there had gone clearly and radically wrong by presenting the people with Henry Ford’s single choice alone. Nor do I read Lord Reed’s judgment as altering that high test. He expressed his analysis of the relevant law in a way which ‘lays less emphasis upon the common law duty to act fairly, and more upon the statutory context and purpose of the particular duty of consultation with which we are concerned’ (para [34]). At paras [37] and [38] he stated:

‘[37] Depending on the circumstances, issues of fairness may be relevant to the explication of a duty to consult. But the present case is not in my opinion concerned with circumstances in which a duty of fairness is owed, and the problem with the consultation is not that it was ‘unfair’ as that term is normally used in administrative law. In the present context, the local authority is discharging an important function in relation to local government finance, which affects its residents generally. The statutory obligation is, ‘before making a scheme’, to consult any major precepting authority, to publish a draft scheme, and, critically, to ‘consult such other persons as it considers are likely to have an interest in the operation of the scheme’. All residents of the local authority’s area could reasonably be regarded as ‘likely to have an interest in the operation of the scheme’, and it is on that basis that Haringey proceeded.[38] Such wide-ranging consultation, in respect of the exercise of a local authority’s exercise of a general power in relation to finance, is far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process.’

21. Therefore, Lord Reed was saying that for this particular statutory consultation the legislative intention was that the people should in a meaningful way ‘participate’ in the decision-making process. That is a distance away from what the common law is doing when it imposes a duty to consult. Rather, it is imposing a requirement that the decision-making process is fair not that the consultees should (at least up to a point) actually be decision-makers as well.

22. My view is supported by the decision of Richards LJ in R (Robson) v Salford City Council [2015] EWCA Civ 6 (20 January 2015) where he stated at para [22] that ‘in fact the decision in Moseley is largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal …’. Plainly he thought that the high test of Sullivan LJ was still applicable where the common law had imposed the duty.