There was a duty to consult only on options which represented genuine, i.e. realistic and viable, proposals for change.  The status quo, referred to in the public documents produced at different stages of the consultation process, a status quo of which the local public were well aware, did not have to be part of the consultation. If it were felt that insufficient information had been made available then more could have been requested. So held by the Court of Appeal in R (Nettleship) v NHS South Tyneside CCG (2020) EWCA Civ 46 at paragraphs 59/60 and 63-65 inclusive.

In Alstom v Network Rail (2019) EWHC 3585 (TCC) O’Farrell J lifted (paragraph 76) an automatic suspension which arose upon a procurement challenge, where there was a serious issue to be tried (paragraph 30). Damages would be an adequate remedy for the Claimant (paragraphs 31-45 inclusive), but not for the Defendant (paragraphs 46-49 inclusive).  Moreover, the balance of convenience test (paragraph 51) was in favour of lifting the suspension, having regard to the public interest (paragraphs 54-71 inclusive).  Delay to the Project caused by continuing the suspension would (1) delay the anticipated benefits of the planned works, (2) result in abortive costs, and (3) jeopardise the business case and funding for the Project (paragraph 59). There was an urgent need to replace degraded assets (paragraph 67).  Alstom’s point about the public interest in Network Rail complying with its legal obligations in respect of public procurement was a neutral one (paragraph 70).  It had to be balanced against the public interest in Network Rail’s entitlement to proceed with the successful tenderer following a lawful and fair procurement exercise. At the suspension stage the Court was not in a position to judge which case will prevail. There was a strong public interest in proceeding with the works as soon as possible (paragraph 71). Nor would a partial lifting of the automatic suspension be appropriate (paragraph 75). The strong public interest in lifting the automatic suspension extended to the full Project.

In R (AA) v Rotherham MBC (2019) EWHC 3529 (Admin) Jefford J, a case on closure of a Day Centre for adults with learning difficulties, following two consultations, and the Council’s responsibilities for the claimant’s care needs under the Care Act 2014, Jefford J stated with respect to the law on consultation and options:-

“83.     … the following propositions can be stated:

(i)        It is not necessary in all cases where a particular proposal is the subject matter of a consultation to set out alternatives including those that may have been rejected or explain why they have been rejected.

(ii)      Fairness requires that to be done where it is necessary to allow informed or intelligent responses. That is sometimes the case as Lord Wilson said at paragraph 27 of this speech.

(iii)     Whether that is necessary, and correspondingly whether the consultation is a fair one, is a broad question in answering which the matters that fall to be considered include the purpose of the consultation, the nature of the proposal being consulted on, and what consultees can be reasonably taken to know about the proposal and its context. Read more »

Who should be notified of a consultation? What positive steps must be taken to make consultees aware of the invitation to express their views? This has been considered by Steyn J in R (British Blind and Shutter Association) v Secretary of State for HCLG (2019) EWHC 3162 (Admin). She ruled (paragraph 53) that there is a duty to take positive steps. However, she added (paragraph 54): “The duty to take such positive Read more »

“Purdah” is upon us. It lasts until 12 December 2019, only shortly before the Christmas/New Year break. It is as well to recall a case noted in this Bulletin on 11 May 2017, the decision of Garnham J in relation to the last General Election, on 8 June 2017, announced on 18 April 2017, and local government elections which were to take place on 4 May 2017, R (Client Earth) v SoS for Environment etc (2017) EWHC 1618 (Admin). The main point that the Judge made was that “purdah” is not a rule of law, and that it does not, and did not in that case, override obligations to comply with statutory duties. Read more »

In Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges.  He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-

Read more »

In OCEAN OUTDOOR UK LTD v LONDON BOROUGH OF HAMMERSMITH AND FULHAM (2019) EWCA Civ 1642 the Court of Appeal has dismissed Ocean’s appeal from O’Farrell J’s Judgment dismissing Ocean’s claim that the Concession Contracts Directive and Regulations applied to two leases of land owned by the Council either side of the Hammersmith Flyover on which are situated substantial structures which support large digital advertising screens. The Court of Appeal confirmed (1) that the leases were not “services” concessions contracts, (2) that they were not contracts “for pecuniary interest”, and (3) that in any event the land exemption applied. As to (1), the Directive and Regulations relate to services which are for the benefit of the contracting authority or its residents, in furtherance of the authority’s strategic objectives or to satisfy their statutory obligations. As to (2), an essential requirement of a contract for pecuniary interest is that the contractor assumes a legally enforceable obligation to carry out the services. As to (3), the land exemption is wide: the leases were genuine leases and agreements for the rental of land.

In QUALTER v PRESTON CROWN COURT AND CHESHIRE WEST AND CHESTER COUNCIL (2019) EWHC 2563 (Admin) a Divisional Court emphasised the breadth of the General Power of Competence under Section 1 of the Localism Act 2011 as compared with the well-being power under Section 2 of the Local Government Act 2000. GPOC authorised a trading standards investigation into energy brokers. Investigations into fraudulent activity are not subject to the expediency test in Section 222(1) of the Local Government Act 1972 : they are different in this respect from a prosecution. The Court said that it is clear from the terms of Section 1 of the Localism Act that Parliament intended that the powers of local authorities should be “ widened” ( but not unfettered ). “ Any Court must be very slow to interfere with a local authority’s exercise of their general power. “

On 19 August 2019 Hickinbottom LJ refused the Claimant permission to appeal from the decision of Andrews J in R ( LF ) v BUCKINGHAMSHIRE COUNTY COUNCIL (2019) EWHC 1817 ( Admin), Local Government Bulletin 12 July 2019. Section 5D of the Childcare Act 2006 does not diminish the entitlement of a local authority to consult only on options it proposes.

In AEW Europe Ltd v Basingstoke & Deane BC (2019) EWHC 2050 (TCC) it was held that a declaration of ineffectiveness was not available in the circumstances.  In Stagecoach v SoS for Transport (EWHC) 2047 (TCC) the Court considered limitation for private and public law claims and abuse of process.