71. Firstly, the role that the consultation is playing in the decision-making process must be considered. At one end of the spectrum a consultation could perform the function of a referendum, or an exercise in direct democracy, determining the decision for the public body through a popular vote. At the other end of the spectrum the purpose of the consultation may be simply to elicit views about a proposal to which regard will be had as an influence on the decision but which (even if it produced an overwhelming majority of opinion opposed to the authority’s proposal) could not be binding upon the authority. Another dimension is that in some circumstances the consultation may be taking place in the context of a staged decision-making process and may be part of a sequence of consultations to be undertaken during that process. The requirements of fairness will be shaped by the needs of the stage that the decision-taking has reached and the recognition that there will be further consultation and further decisions to be made later in the process. The role that the consultation will play in the decision-making process will be an influence upon the requirements of fairness in terms, for instance, of the nature and extent of the information necessary for the consultation to be considered fair, and also the manner in which the outcome of the consultation is considered when the decision is reached.

72. Secondly, the extent of the detail which fairness requires that the public body provides can in some circumstances be influenced by the identity of those that are being consulted: see Fletcher v Minister of Town and Country Planning [1947] 2 All ER 496 , 501 and Moseley paragraph 26. Thirdly, the demands of fairness are likely to be higher when a public body is deciding whether to deprive a person of an existing benefit, as distinct from circumstances when the person is applying for a future benefit: see R v Devon County Council ex p Baker [1995] 1 All ER 73 , 91. There will no doubt be other detailed considerations which have an influence over the requirements of fairness in any particular case: fair consultation must be shaped to its purpose and from its context.

73. One of the particular questions which arises in this case is when fairness determines that there should be re-consultation by the decision-maker. When do circumstances exist which give rise to a legal requirement that there should be a further round of consultation? This issue arose before Silber J in the case of Smith v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) . From paragraph 43 onwards he reached the following conclusions:

’43. A matter of crucial importance in determining whether the defendants in this case should have re-consulted on the proposals under challenge was the nature and extent of the difference between what was consulted on in the consultation paper and the proposal accepted in the March 2002 decision. Clearly, if all the fundamental aspects of the decision under challenge had not been consulted on but ought to have been, that would indicate a breach of the duty to consult, whilst at the other extreme, trivial changes do not require further consideration. In approaching this issue, it is necessary to bear in mind not only the strong obligation of the defendants to consult, but also the dangers and consequences of too readily requiring re-consultation, as those dangers also flow from the underlying concept of fairness, which underpins the duty to consult.44. As Schiemann J, as he then was, (with whom Lloyd LJ agreed) pointed out in explaining these dangers in R v Shropshire Health Authority ex p Duffus [1990] 1 Med LR 119 at p223:“A consultation procedure, if it is to be as full and fair as it ought to be, takes considerable time and meanwhile the underlying facts and projections are changing all the time. It is not just a question of an iterative process which can speedily be run through a computer. Each consultation process if it produces any changes has the potential to give rise to an expectation in others, that they will be consulted about any changes. If the courts are to be too liberal in the use of their power of judicial review to compel consultation on any change, there is a danger that the process will prevent any change-either in the sense that the authority will be disinclined to make any change because of the repeated consultation process which this might engender, or in the sense that no decision gets taken because consultation never comes to an end. One must not forget there are those with legitimate expectations that decisions will be taken.”45. So I approach the issue of whether there should have been re-consultation by the defendants in this case, on the proposals now under challenge on the basis that the defendants had a strong obligation to consult with all parts of the community. The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the courts should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the health service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt.’

74. During the course of the argument on this point both parties, and in particular the defendants and those defending the decision, emphasised the phrase ‘fundamental difference’ in their submissions. As the argument developed, it appeared to me that this phrase was in danger of having more rhetorical force than substantive content, and in and of itself providing limited assistance in determining when re-consultation might be required. In my view that phrase cannot be detached from the clear and undoubtedly accurate conclusion reached by Silber J that any consideration of the need to re-consult will be determined by the concept of fairness.

75. The requirements of fairness in considering whether or not to re-consult must start from an understanding of any differences between the proposal and material consulted upon and the decision that the public body in fact intends to proceed to make. This is because there will have already been consultation. The issue is, then, whether it is fair to proceed to make the decision without consultation on the differences, which will therefore be heavily influenced in this particular context by the nature and extent of the differences. Whilst it is not possible to produce any exhaustive list of the kind of matters that would need to be considered (alongside all the other legal principles set out above) to determine whether re-consultation is required, some illustrations may assist. Examples would include where it has been determined that it is necessary to re-open key decisions in a staged decision-making process which had already been settled prior to consultation occurring; or where the key criteria set out for determining the decision and against which the consultation occurred have been changed; or where a central or vital evidential premise of the proposed decision on which the consultation was based has been completely falsified. These examples serve to illustrate the very high order of the significance of any difference which would warrant re-consultation.

76. It is also important to point out that the question of a change’s significance is not to be determined with the benefit of hindsight: it is significance at the point in time when the question of re-consultation is to be determined that counts. Finally, the fact that a change arises so as to reflect views produced by the consultation process does not itself require re-consultation. Once again, it is the extent of the change or difference which is the starting point. If the change arose from the original consultation that is simply evidence of the fourth Sedley criterion in operation and not in and of itself a reason for re-consultation. It is the extent of the change which requires examination.