Consultation or general information gathering?

In R on the application of CU (by his mother and litigation friend, DV) v Secretary of State for Education the High Court considered the application of the Gunning principles to consultations which do not contain a specific proposal and gave guidance on the timing for challenging consultations.

Key Points

• A consultation question which seeks information about a subject without referring to a proposal is not enough to bring the consultation within the scope of the Gunning requirements.
• A decision by a public body to refuse to rectify an issue with a consultation which has been brought to its attention can itself be the subject of a separate challenge.
• Any challenge to a defective consultation may need to be brought promptly after the start of a consultation period, rather than waiting for it to end or the final substantive decision.

Background

The claimant, a 12-year-old boy with special educational needs and disabilities ("SEND"), brought a judicial review challenge to one of the questions in the consultation green paper on the SEND provision system. In particular, the claimant argued that Question 7 concerning the remedies available to the First Tier Tribunal ("FTT") was unlawful because it failed to inform readers that the remedies already available to the FTT did not include the award of compensation.

The legal principles governing consultation processes are known as the Gunning principles, and provide as follows:

• First, that consultation must be at a time when proposals are still at a formative stage.
• Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
• Third, that adequate time must be given for consideration and response.
• Fourth, that the product of consultation must be conscientiously taken into account in finalising any proposals.

The claimant argued that this omission contravened the second Gunning principle and that the decision to omit this information was irrational.

The defendant's position was that no policy proposal had been developed in relation to FTT remedies. Rather, the purpose of Question 7 was only to gather information to inform policy thinking in the future, and that on this basis, the Gunning principles did not apply despite the document describing itself as a consultation.

Judgment

Do the Gunning principles apply?

Dealing first with the claimant's arguments in relation to the Gunning principles, the court applied Eveleigh and looked at the substance of Question 7 rather than the fact that it was within a document described as a consultation. The court had no hesitation in holding that the Gunning requirements did not apply to Question 7 on the basis that there was "no explicit proposal other than to explore how well the current arrangement regarding remedies […] were working in practice". There was therefore not even a general policy commitment at a high level. The fact that responses to the consultation may ultimately influence the development of a concrete proposal at some future stage was not enough to bring the consultation into the scope of the Gunning requirements. In particular, the court rejected the claimant's argument that the absence of an explicit proposal was in practice a proposal to do nothing in the meantime, stating that such an interpretation would mean that this argument could be put forward in "almost every case where a public authority was inviting responses to inform a future investigation and/or future proposals".

In passing the court also confirmed that if the Gunning principles had been in play, the fact that the relevant information was available on the Government website and elsewhere was insufficient for it to be deemed "readily available" to anyone wishing to respond to Question 7.

Irrationality

On the irrationality argument put forward by the claimant, the court made a similar finding that in the absence of a specific proposal: "(a) it is for the authority in question to decide what proposals it wishes to put forward and when, and (b) individual members of the public cannot, through judicial review, force government to put forward a positive proposal rather than to ask for information to inform the content of any future proposals". The court distinguished this from a situation where Question 7 was in fact a proposal not to change the existing remedies, in which case failure to make reference to the absence of a compensation remedy ("in circumstances where the government well knew that it was an obvious and significant lacuna") could be considered irrational.

When does time start to run?

The court also addressed the question of when the time limit begins to run for a judicial review challenge to a consultation, reviewing previous decisions on this issue which were described as "very much dependent on their particular facts".

As a preliminary point the court noted that "the four Gunning principles are not all directed to the same point in the process" and clarified that its guidance related specifically to the second Gunning principle, but different considerations may apply if the other principles were in play.

Stopping short of a conclusive answer to this question (leaving it to be determined in "a case where it actually makes a difference to the outcome") the court did offer some comments on the subject which are likely to be a helpful steer. It set out three options for when a challenge to the consultation could be brought:

• As soon as the consultation is issued (at the risk that this might be considered premature in circumstances where the issue is capable of being addressed within the lifetime of the consultation);
• Once the consultation has ended (especially where the applicant has requested that the authority address the issue during the lifetime of the consultation);
• At the stage when the proposal concerned in the consultation is promulgated (at the risk of a suggestion that the claim was not brought promptly).

The court tentatively expressed a view that if "there could only be one relevant starting point […] it ought to be the start of the consultation period since that is, on proper analysis the date of the decision which is said to be public law unlawful".  However, it added that where an applicant has requested that the issue be rectified in the course of the consultation and is refused, that refusal decision ought itself to be capable of being the subject of a separate challenge. The court cautioned against waiting until the final decision itself, suggesting that would often be considered too late and noting the prejudice which late challenges to consultations may cause to affected individuals or good administration.

Application of no substantial difference rule in consultation cases

Finally, the court also touched on the meaning of "highly likely that the outcome for the applicant would not have been substantially different" in consultation cases, in the context of s.31 of the Senior Courts Act 1981 which provides for the refusal of permission for judicial review or the refusal of relief in these circumstances. In particular, the court considered whether it can and should only consider the direct and immediate outcome for the claimant or should consider matters more widely.

In this case, although the claimant was already aware of the information which had been omitted and raised it in the consultation process, the court was not willing to refuse permission for judicial review on this basis. It was suggested that the outcome for the claimant includes an outcome where all those who might wish to respond to the consultation with the appropriate knowledge can do so, so that all such responses can conscientiously be taken into account. It could not be said to be highly likely that this would have made no substantial difference to the result of the consultation or no difference to the claimant insofar as he has a legitimate interest in the consultation being run properly.

Comment

This case is helpful for the guidance it offers about when in the overall policy making process it may be appropriate to bring a challenge. The court appears to be trying to allow decision makers the space to gather information in the early stages of policy development, and to prevent such an exercise from being converted into a formal consultation susceptible to legal challenge. On the other hand, the court's comments on timing, whilst obiter, err on the side of bringing a challenge at the start of the consultation rather than waiting for the final proposal to be put forward. There is therefore clearly a fine balance to be struck when considering how to respond to defects in a process, and in the context of the existing tight time limits for judicial review claims, this case speaks to the need to follow an issue closely in order to be in a position to best judge the right moment to act.