36. The following can, I believe, be distilled for the present purposes from Moseley:

(i) The inter relationship between paragraphs 27 and 28 is that sometimes fairness will require consultation upon discarded alternative options. Even if a consultation is statutorily required and the subject is limited to the preferred option, fairness may nevertheless require passing reference to discarded alternative options. On the facts of Moseley such passing reference was required. Lord Wilson approved as correct Pitchford LJ’s statement that ‘Consulting about a proposal does inevitably involve inviting and considering views about possible alternatives.’

(ii) However, none of this undermines the opening sentence in paragraph 27 ie that it is only ‘sometimes’ that consultation so requires.

(iii) [Moseley paras 37–39].

(iv) Before me there has been further debate as to whether Mostyn J in R (L and P) v Warwickshire CC [2015] EWHC 203 (Admin), (2015) 18 CCLR 458, paras 18–22 was correct in saying that Sullivan LJ’s statement [in R (Baird) v Environment Agency etc [2011] EWHC 939 (Admin)] that a consultation would only be unfair as to be unlawful when something has gone ‘clearly and radically wrong’ survives the decision in Moseley. The context of that wording has to be seen in the light of what Sullivan LJ said in Baird which is that the test is ‘whether the process is so unfair as to be unlawful.’ [See also Royal Brompton at para 13]. It is important that the words ‘clearly and radically wrong’ do not indicate a ‘different test, but merely (indicate) that in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong.’ [Baird para 51].

37. I have come to the conclusion that in this case fairness did not require consultation upon arguable yet discarded alternative options. I say this for the following reasons:

(i) I take into account the two factors in Moseley para 26 and I accept that there are some similarities in the statutory requirement to consult in Moseley and the voluntary consultation in the present case. The purpose of the voluntary consultation was to have public participation in the local authority’s decision making process. Though not as clear-cut as in Moseley, it might be said that the context was one with which the general public may not be expected to be familiar. Nevertheless:

(ii) Although the intention of the consultation was to involve the public, there was no statutory requirement to do this. Common law fairness may sometimes require consultation upon discarded alternative options. In this regard the authorities cited by Lord Wilson in Moseley (para 27) were R (Medway Council and others) v Secretary of State for Transport (Medway) [2002] EWHC 2516 (Admin) and R (Montpeliers and Trevors Association) v Westminster City Council (Montpeliers) [2005] EWHC 16 (Admin). It is to be noted that both these decisions were on a single issue. In Medway the procedural and fairness was predicated upon a very specific basis, namely ‘Knowing that the Claimant will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimant lose their only real opportunity to present their case on Gatwick…’ (para 32). In Montpeliers there were two consultations, one statutory and one non statutory, in relation to barriers in two London residential squares. The judge said ‘Fairness required that all the various options be put to the consultees. That was never done. The same point can be put another way. The process was not fair, either in its constituent parts or overall, because some supporters of the retention of the barriers may have thought that it was not the moment to voice their views during a statutory process of making objections and likewise may have thought that there was no point in expressing views supportive of the retention of the barriers in the course of a consultation exercise which had apparently already ruled that option out of further consideration.’ (para 29).

Thus the factual context in both cases was a world away from the present case, though of course these were only examples. [footnote to judgment: In Rusal (see below) para 40, the Court of Appeal said ‘there have been exceptional cases where the courts have held that a consultation process was unfair for failure to set out alternative options’. It is not clear whether the epithet ‘exceptional’ survives the decision in Moseley.]

(iii) Further, the context of Moseley, though it had similarities, was different. In Moseley, the statutory consultation was about making people pay council tax when they were previously exempt from it. The present case involves five different consultations on differing areas of the total budget, in circumstances where there has been no (pre) determination of how and where the detailed impact of budget reductions in any particular part will fall. In this regard I also have regard to the caution endorsed by the Court of Appeal in paras 87–90 of the Royal Brompton case.

(iv) Moseley was heard on 19 June 2014 and the judgment published on 29 October 2014. The Court of Appeal heard the case of R (United Company Rusal plc) v The London Metal Exchange [2014] EWCA Civ 1271 on 29–30 July 2014 and published the judgment on 8 October 2014. There is nothing in Moseley, and in particular in paragraphs 27–28 of Lord Wilson’s judgment, which detracts from para 29 of Rusal which provides:

‘It is also clear from the authorities that the courts have to allow the consultant body a wide degree of discretion as to the options on which to consult: as the Divisional Court held in the Vale of Glamorgan Council v Lord Chancellor and Secretary of State for Justice … at [24]:… there is no general principle that a Minister entering into consultation must consult on all possible alternative ways in which a specific objective might arguably be capable of being achieved. It would make the process of consultation inordinately complex and time consuming if that were so….’ [footnote to judgment: Permission was refused by the Supreme Court to appeal the decision in Rusal; see also the general statement of the Court of Appeal in R (Robson and another) v Salford City Council [2015] EWCA Civ 6 where Richard LJ said [22] ‘…the decision is largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal…’]

(v) Before presenting the proposals to the public in the way it did, the Defendant had clearly considered very carefully the alternatives of increasing council tax/using reserves. Also, information as to why these had been rejected was available to the public to some extent.

(vi) The Claimant suggests that all that was needed was something like (a) an indication that there were alternatives, (b) a rough illustration of what the alternatives might be eg increasing council tax by x%, (or less if only to mitigate the effects) and/or spending y% of unallocated reserves, (c) an account of the reasons why these had been discarded. In the circumstances of the present case, particularly given the reasoning of the Council, and the fact that this information was available and discussed during the consultation to some extent, there is a real doubt as to whether such extra steps would have made any real difference.

(vii) Overall, the Council having chosen to consult, in my judgment they were entitled lawfully to present their preferred option and to consult on the best way to achieve that.

38. All members of the Supreme Court in Moseley made it clear that the consultation document produced by Haringey was misleading. Lord Reed said:

‘42. As Lord Wilson has explained, those requirements were not met in this case. The consultation document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by Haringey itself. It misleadingly implied that there were no possible alternatives to that choice. In reality, therefore, there was no consultation on the fundamental basis of the scheme.’

The parties are agreed that if the Defendant positively misled the public in the consultation, that would be unfair and unlawful.

‘The Claimant alleges that the Defendant misled consultees in the present case in suggesting that there was no alternative to the cuts, relying in particular on the statement in the Social Care Information Questionnaire ‘In 2015/16 Children’s Services, Adult Social Care and Public Health will need to save £17.8m’. The Claimant says there was no positive suggestion anywhere in the evidence that alternatives existed to the Defendant’s proposals. Rather the Defendant consulted on the erroneous basis that cuts to Adult Social Care provision must be made.I do not accept the Claimant’s point. It cannot be the case that if an authority does not consult on rejected options, and only presents a preferred option for consultation, then that must be misleading. It is one thing positively to mislead as in Moseley. It is quite another for the Council, in all the circumstances of the case, to have and to put forward, after careful and detailed consideration, a point of view that circumstances dictated that it was not realistic to increase council tax or to use reserves and therefore to focus the consultation on savings in services.’