Courts consider public authorities' duty to consult

Two recent judgments relating to consultation outline the fact and context specific nature of this area. In one decision, the Court of Appeal overturned the High Court's finding that the Government's National Disability Strategy was unlawful on the basis that the voluntary exercise undertaken did not meet the requirements of a fair consultation (R (on the application of Secretary of State for Work and Pensions) v Eveleigh [2023] EWCA Civ 810). In the second decision, the High Court found that the Secretary of State for Business and Trade failed to comply with his statutory duty to consult (R (on the application of ASLEF and ors) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin).

Key points

• The common law requirements of a fair consultation are based on the assumptions that a public authority is proposing a specific decision which is likely to have some impact and that is at a sufficiently crystallised stage to allow the public authority to provide sufficient information to enable consultees to respond intelligently and provide views which might influence the decision.
• If these assumptions are not present, then the proposal cannot be said to conceivably be the subject of a consultation to which the common law requirements of a fair consultation apply.
• A statutory duty to consult cannot be satisfied simply provided there was consultation at some point before the making of any regulations, but regardless of the time elapsed since, or the quality of, the consultation.
• A fresh decision does not necessarily require a fresh consultation, so long as evidence shows that the decision was informed by the views and the evidence of bodies which were representative of the interests concerned.
• In assessing whether there is a duty to consult further on a proposal, a court will take into account the lapse of time, the developments in the intervening period, the reasons why the proposal was not originally implemented, and any new reasons for wanting to implement it.

R (on the application of Secretary of State for Work and Pensions) v Eveleigh

Background

This was an appeal from a High Court judgment which allowed an application for judicial review of the National Disability Strategy (the "Strategy") published by the Secretary of State for Work and Pensions (the "SoSWP") in July 2021.

The claim related to an online UK Disability Survey (the "Survey") published by the Cabinet Office's Disability Unit in January 2021, for the purpose of collecting responses to inform the creation and implementation of the Strategy. Various government press releases outlined an intention for the Strategy to be built on improved data and evidence, engagement from disabled people and insight from lived experiences, and described the Survey as "part of our ongoing consultation".

The High Court found that there was no duty to consult but, in carrying out the Survey, the SoSWP voluntarily embarked on a consultation exercise to which the common law requirements of fair consultation applied, as outlined in R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168 ("Gunning"), namely that: (1) the consultation must be at a time when the proposals are still at formative stage; (2) the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; (3) adequate time must be given for consideration and response and (4) the product of the consultation must be conscientiously taken into account in finalising any proposals. The Survey was found to have breached the second criterion because the consultation documentation provided insufficient information and precluded proper and effective response. The High Court consequently declared that the Strategy was unlawful.

Judgment

The Court of Appeal overturned the High Court's decision that the Survey was a consultation to which the Gunning criteria applied. In the court's view, the Gunning criteria are based on the following assumptions about the characteristics of the consultation exercise to which they are able and intended to apply:

• a public authority is proposing to make a specific decision which is likely to have a direct (and usually adverse) impact on a person or on a defined group of people;
• the proposal is at a sufficiently 'formative' stage so that the views of those consulted might influence it; and
• the proposal has crystallised sufficiently that the public authority knows what the decision may be, and is able to explain why it might make that decision in enough detail to enable consultees to respond intelligently to that course of action.

The court held that the Strategy was not comparable to previous decisions engaging the Gunning criteria. It was a series of general policy commitments at a high level of abstraction, and so was not obviously the type of intended decision to which the Gunning criteria could apply. Further, at the time the Survey was released, the Strategy had not reached a stage at which it could conceivably be the subject of a consultation – it was no more than an inchoate plan which would take shape as and when information was gathered by the Survey. As such, there was no concrete proposal to which the Gunning criteria could apply. The purpose of the Survey was simply to give respondents the opportunity to influence the future content of the Strategy with information and their views.

In light of the court's decision on this point, it declined to consider a further issue raised by the Government as to whether the Gunning criteria apply to voluntary consultations. The received wisdom is that a voluntary consultation attracts the Gunning requirements. The Secretary of State suggested that whilst the point has been assumed to be correct in many authorities, it has never been the subject of argument, or decision, and submitted that a voluntary consultation should only be subject to control via the principle of rationality. Notably, the judges offered differing perspectives on whether a voluntary consultation should be subject to the same rules as one which a public authority is legally obliged to conduct, but left the issue for a future case.

R (on the application of ASLEF and ors) v Secretary of State for Business and Trade

Background

In three joint claims, 13 trade unions challenged the decision of the Secretary of State for Business and Trade (the "SoSBT") to make the Conduct of Employment Agencies and Employment Business (Amendment) Regulations 2022 (the "2022 Regulations").

The 2022 Regulations revoked regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 ("Regulation 7"). Regulation 7 made it a criminal offence for employment businesses to knowingly introduce or supply workers to an employer to carry out the work of employees who were taking part in official industrial action.

In 2015, the Government conducted a public consultation on a proposal to revoke Regulation 7, to which the majority of responses did not favour changing the law and in 2016 it was decided not to go ahead with the proposal. Despite this, in 2022, the Government decided to revoke Regulation 7 (via the 2022 Regulations) without further public consultation, in response to ongoing industrial action in the rail sector and other anticipated industrial action.

The claimants sought judicial review on two grounds:

• The SoSBT failed to comply with his statutory duty, under section 12(2) of the Employment Agencies Act 1973 (the "1973 Act"), to consult with representative bodies before making the 2022 Regulations.
• The SoSBT breached his duty under Article 11 of the ECHR to prevent unlawful interference with the rights of trade unions and their members.

In relation to consultation, the SoSBT relied on the 2015 consultation as evidence that his duty was met.

Judgment

The High Court upheld the claim and quashed the 2022 Regulations.

The court engaged in a discussion of the interpretation of s.12(2), noting that Parliament cannot have intended s.12(2) to be satisfied provided there was consultation at some point before the making of any regulations, but regardless of the time elapsed since, or the quality of, the consultation. In actual fact, the Gunning principles set out what Parliament required when it referred to “consultation” in s.12(2). The relevant question was whether the SoSBT's approach to the consultation was so unfair as to be unlawful, not what the court itself would have done or what the standards of perfection were. However the court did not accept the submission that the court is required to afford considerable deference to the SoSBT's decision as to whether a change in circumstances is such as to require further consultation i.e. to defer to the views of the decision-maker as to what fairness required. That would be so in a case where the test was one of rationality.

Against that background, the court accepted that a fresh decision by a different Secretary of State did not necessarily require a fresh consultation, as the responses might still be current years later, and the aims of s.12(2) might be achieved by conscientious consideration of those responses, although the lapse in time would make this less likely. However, in this case the court found no evidence that the SoSBT's decision was in fact informed by, or tested against, the views and the evidence of bodies which were representative of the interests concerned, whether expressed in 2015 or 2022. The aims and requirements of s.12(2) therefore were not fulfilled because there was no consultation before the 2022 Regulations were made.

Although the claim succeeded on the above basis alone, the court proceeded to consider the lawfulness of the SoSBT's decision not to consult further. Even if the SoSBT had conscientiously considered the responses to the 2015 consultation, the court found his approach to making the 2022 Regulations to be contrary to s.12(2), so unfair as to be unlawful, and irrational. In the court's judgment, it was unfair and inconsistent with the aims of s.12(2), particularly to ensure informed decision making, to fail to at least seek updated views and evidence given: (i) the lapse of time; (ii) the developments which there had been in the intervening period; (iii) the reasons why the proposal had not been implemented after the 2015 consultation; (iv) and the professed reasons for wishing to implement it in 2022.

The court declined to express a view on ground two.

Comment

Both these cases are interesting for demonstrating how far the courts are willing to hold public authorities to standards of fairness in a consultation process. Eveleigh potentially signals a rowing back from the general acceptance that a consultation exercise, even if voluntary, must comply with specific minimum criteria, albeit that the court reached this conclusion by deciding that the exercise did not in fact amount to a consultation at all rather than focusing on its voluntary nature. ASLEF demonstrates that the courts will look at the question of fairness for themselves and will not afford the same degree of deference to public authorities as in more substantive decision making.