Budget cuts and consultation featured yet again in R (L & P) v Warwickshire County Council [2015] EWHC 203 (Admin), in which Judgment was given by Mostyn J on 5 February 2015.  The primary ground of challenge alleged that the Council had acted unlawfully in not consulting (at common law) on its savings target for its Integrated Disability Service (“IDS”) for children.  However, this, along with other savings targets, had been identified in February 2013.  The Judge, applying Nash v Barnet LBC [2013] EWCA (Civ) 1004, (2013) PTSR 1457, held that grounds for challenge “first arose” in February 2013 and the challenge therefore was far out of time.

The Judge went on, however, to consider the ground on its merits.  He began by identifying a constitutional issue, which he put this way:

“The decision to set a local authority budget at a certain level and to make reductions in certain areas must surely be the very quintessence of a political decision.  A challenge to a budget proposal should normally be made through elected representative or, if dissatisfied with what they are doing, by seeking to unseat them at an election. That is what local democracy is all about. The main challenge here does to my mind raise a serious constitutional question.”

Mostyn J went on “whole-heartedly” to agree with the statement of Collins J in the Lincolnshire library closure case, Draper v Lincolnshire County Council (2014) EWHC 2388 (Admin), at para 53:

“The overwhelming objection to the decision does not in itself mean that it is unlawful. The decision to make the £2 million cuts was a political one which was not and cannot be challenged in the courts.  It can of course when it comes to electing councillors. The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful.”

Mostyn J added, however, a caveat:

“That does not mean of course that every political decision made by an elected county council is immune from challenge in judicial review proceedings. It does mean however that I must be especially careful that I do not cross the line into the political arena and get lured into making a judgment about the merits of a democratic decision which imposes a cut.”

The Judge duly recognized that in some circumstances there is no statutory obligation to consult but the common law nonetheless imposes one, in order to satisfy the requirements of procedural fairness, but said Mostyn J:

“Plainly, the circumstances where the judges will intervene to tell a decision maker, who may very well be an elected representative, how procedurally to make his or her decision will be very circumscribed.”

Turning to the three circumstances where the common law will impose a duty to consult, (i) where there has been a promise to consult, (ii) where there has been an established practice of consultation, or (iii) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness, the Judge observed that for each of (i) and (ii) “the duty must be predictable and finite in scope”, and that as for (iii) not only must the case be “exceptional” but the unfairness must be of a very high level”, it must be “conspicuous”.  Reverting to the constitutional issue, Mostyn J added that:

“In each instance where the decision not to consult has been made by a democratically elected representative the court should be very slow to intervene, for obvious constitutional reasons.”

Mostyn J having set out the principles to be applied in working out whether a duty to consult arises or not, the next question would be how it should be carried out.  Obviously it must be carried out fairly.  The Judge referred to the authorities, including at Court of Appeal level, that consultation will only be so unfair as to be unlawful when something has gone “clearly and radically wrong”, a “strong test”, a “high test”.  Mostyn J ruled that this remained the test post-Moseley in the Supreme Court, saying that his view was supported by R (Robson) v Salford City Council (2015) EWCA (Civ 6. 

The primary ground of challenge failed because it was not a category (i) case, as none of the promises of consultation promised consultation on whether in principle the cuts should be made, and all of the promises made were to consult, which was done, about the ways and means of achieving the targeted savings; nor was it a category (ii) case; and the question was whether it was a category (iii) case, which would be “very rare”. Mostyn J stated that the Warwickshire case did not come “remotely close” to “conspicuous unfairness amounting to an abuse of power”.  He said:

“This case was an example of a budget being regularly and constitutionally set by a local authority in the present time of austerity.  All democratic procedures and safeguards were followed. It simply cannot be said that to make that decision without prior consultation was so conspicuously unfair as to amount to an abuse of power.  On the contrary, it was an example of democratic power being properly, lawfully and constitutionally exercised. If the people of Warwickshire did not like that decision they could have voted out the councillors three months later.”

He added:

“My overriding conclusion is that the claimants here are voicing their complaints in the wrong place.  Rather than raising them in a court room they should raise them in councillors’ surgeries and ultimately in the voting booth.   As I have said earlier, that is what local democracy is all about.”

The Warwickshire case also concerned statutory consultation on the Local Offer (social care, education and health) under the Children and Families Act 2014.  The Judge observed that not only did a vast number of people and bodies have to be consulted before a Local Authority publishes its Local Offer, but also a “huge amount of information”,  a  “very extensive range of information”, must be referenced.  Mostyn J observed:

“Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

The Judge rejected a challenge that the Local Offer consultation was unfair. It was not a consultation about whether particular provision should be made.  He said:

 “… it must be very clearly understood what the purpose of the consultation is.  It is about what appears in the Local Offer, which is a compendium of information.  I remind myself of the words of section 30.  The local authority has a duty to publish information about certain provision it expects to be available.”

The Judge also rejected a challenge that alleged that the IDS proposals, and the local LSCB’s thresholds document, were unlawful or contrary to the 2013 “Working Together to Safeguard Children” statutory  guidance.  He said, referring to Section 17 of the Children Act 1989:

 “It would not make sense for any child with any “mental disorder” to be entitled automatically to receive a section 17 assessment conducted by a social worker given the mutability of the term mental disorder.  I agree with Mr Goudie QC that it may, for example, be entirely inappropriate for a child with dyslexia or dyspraxia to receive a social care assessment under section 17.  In my judgment the guidance should not be read as insisting that every disabled child should initially be the subject of a full-blown social worker assessment.  Alternatively, if it does say that then local authorities and safeguarding boards would have good reason for departing therefrom.  The approach taken in the threshold document strikes me as eminently reasonable in terms of initial deployment of resources.”

The recent Supreme Court decision in Moseley has now for the first time been considered in the Court of Appeal.  A consultation challenge failed in R (Robson) v Salford City Council [2015] EWCA Civ 6.  The Court of Appeal reined Moseley in, from paragraph 22 of the Judgment of Richards LJ, with which Treacy LJ and Newey J agreed.  At paragraph 22, Richards LJ said:-

“The decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, has featured large in the argument concerning the consultation issue. … In fact the decision in Moseleyis largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal, but it provides an illustration of the application of those principles …”

 At paragraph 29 Richards LJ continued:-

“As to the application of the law to the facts in Moseley, the consultation in that case was found to be procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet.”

 Richards LJ concluded:-

“34. In order to determine whether consultees were misled or were not consulted about the actual proposal, it is also necessary to have regard to the wider picture. …

35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. …In Moseley it was wrong to place reliance on consultees’ assumed       knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. …”

“36. It may be helpful for me to indicate that if I had found that the consultation was unfair, I would have favoured limiting relief to the grant of a declaration, refusing the quashing order sought by the appellants (just as the Supreme Court in Moseley declined to grant a quashing order in the particular circumstances of that case). … In my judgment it would not be appropriate in these circumstances to require the Council to go back to square one and to conduct a fresh consultation exercise.”

In Noon v Matthews [2014] EWHC 4330 (Admin) the Divisional Court allowed an appeal by way of case stated of the Conservators of the River Cam about their ability to prosecute unlawful operators of punts on the River Cam. The Conservators were established in 1702 and have jurisdiction to make Byelaws over the River Cam. The River Manager of the Conservators, acting on instructions, brought prosecutions which were stayed by the District Judge as an unlawful delegation of power by the Conservators to their officers.

Beatson LJ considered the legislative scheme in the River Cam Navigation Act 1851 and the River Cam Conservancy Act 1922 and held both that it was inevitable the power of prosecution, in the circumstances of the Conservators, would be delegated to a senior officer and that it had, on the facts, been subject to appropriate oversight and control. The appeal was allowed and the case remitted to the Magistrates’ Court for the prosecutions to proceed.

The Judgment contains some interesting observations on delegation case law.

Beatson LJ (with whom Holroyde J agreed) said:-

“25.       There are no relevant decisions concerning the power of the Conservators to delegate their powers. Accordingly, guidance must be sought from the decisions of this and other courts in other contexts. The starting point is the principle that powers conferred by statute should be exercised by the person or authority on whom they are conferred, “even where [this] causes administrative inconvenience, except in cases where it may be reasonably inferred that the power was intended to be delegable”: Wade and Forsyth, Administrative Law, 11^th ed., 259, and see also de Smith’s Judicial Review 7^th ed, 5-148 ff.

26.        One can only assess how strict this principle is by examining the approach of the courts to the question whether statutory provisions impliedly authorise delegation. As in many areas, this is likely to vary according to the context and the nature of the power. There is a strong presumption against interpreting a grant of legislative power as empowering delegation. There is also a tendency to adopt a more restrictive approach to implied authority to delegate in the cases of the proceedings of courts and cases involving other “judicial” and “disciplinary” powers. A strict approach is also likely if the power is conferred on the holder of a public office because of the personal qualifications and experience that those who hold the office can be expected to have. Re Bell’s Application for Judicial Review [2000] NI 245, the decision relied on by the District Judge, is an example of a strict or restrictive approach. But where the exercise of the power in question is not final or conclusive, where the power is given to the head of an organisation which is itself hierarchically structured, and where the responsibilities of the person or body named in the statute are such that the court considers delegation is inevitable, a less strict approach is taken and authority to delegate is likely to be implied.”

Beatson LJ then considered Nelms v Roe [1970] 1 WLR 4, Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173, R (Chief Constable of West Midlands Police) v Birmingham Justices [2002] EWHC 1087 (Admin) and especially DPP v Haw [2008] 1 WLR 379, and continued, at para 32, with respect to Bell’s case:-

“I consider that only limited assistance can be derived from that case. First, its context was very different to that of the present case. The Northern Ireland Health and Social Service Board was obliged under the relevant legislation to authorise the relocation of a pharmacy business if it was satisfied that it was a “minor relocation”, and had no power to authorise it if it was not a “minor relocation”. The Board delegated the power to decide whether to authorise the relocation of a pharmacy business to its Director of Pharmaceutical Services, who determined that Ms Bell’s application for authorisation was not a “minor relocation”. The delegation was to decide a question of the extent of the Board’s jurisdiction (see [2000] NI 245 at 258) which had an effect on Ms Bell’s ability to operate her pharmacy business lawfully. It was for that reason that Girvan J considered the matter delegated could not be characterised as a mere administrative matter.”

Beatson LJ continued:-

“33.       In the present case, the issue concerns a decision to bring a prosecution. While the decision to issue a summons is a judicial act, the decision to bring a prosecution is a matter for the prosecutor alone: … The decision has a practical effect but is subject to the control of the court, first, and generally fairly quickly, when it decides whether to issue a summons, and, if it does, in the conduct of the trial.

34.        Secondly, I note that Girvan J did not consider Nelms v Roe. In that case, although the failure to provide the information was a criminal offence, a far less strict approach was taken to the question of implied authority to delegate.

35.        Thirdly, and significantly, in the light of the decisions in Haw’scase and the Birmingham Justicescase, Girvan J’s formulation appears too wide. Although those cases involved important common law freedoms, indeed fundamental rights, this court took a different and less restrictive approach than that taken by Girvan J. Haw’scase involved freedom of expression and of assembly, freedoms which are regarded as important by the common law and are also fundamental rights protected by the European Convention of Human Rights. The Birmingham Justicescase involved a court order which, while a civil order, could have a significant effect on an individual’s freedom of movement.”

 With that summary of the authorities, Beatson LJ turned to the question of determining the extent of the implied power in the relevant legislation.  He said, at para 36:-           

“My starting point is that the Conservators are statutory officers at the apex of a hierarchical organisation consisting of other office-holders, referred to in the governing statutes and Byelaws. They are either elected members of the relevant local government areas or senior members of the University of Cambridge. On examining the Acts, while some of the functions referred to are specifically required to be carried out by named office-holders, in respect of other functions there is no such limitation, or the reference is only to the Conservators. …”

 “39.       In my judgment, a distinction must be made between the determination of policy on such matters and the operational execution of such policy. Notwithstanding the difficulties at the margin of locating the boundaries of these categories, I consider that the Conservators are not impliedly authorised to delegate broad policy on such matters. They can, in my judgment, however, delegate the implementation of such policies to officers who will have some discretion as to how, operationally, to execute the policy in question.

40.        Is there, however, a distinction between those powers and the power to prosecute because it is much easier to conclude that it is inevitable that works of construction and clearing were to be planned and undertaken by skilled workpeople rather than the Conservators, whereas the decision to prosecute is not something which it is inevitable that the Conservators must delegate, since they could make the decision themselves after taking legal advice? I do not consider that there is. The function of enforcing the many Byelaws issued by the Conservators and prosecuting those against whom there is evidence that they have breached them is undoubtedly an onerous and operational task. Decisions may need to be taken quickly. The Conservators meet quarterly … and there are obvious practical difficulties of a body comprised of individuals which represent other bodies which only meets quarterly conducting criminal prosecutions on a day-to-day basis. Accordingly, although the decision to prosecute is a serious one, some delegation to the most senior officer is, in my judgment, inevitable in the sense that word was used in Haw’s case. …”

“43.       I have concluded that the presumption of an implied power to delegate, which it is accepted applies in relation to certain of the Conservators’ functions, also applies to the institution of prosecutions. I consider that it is for the Conservators to set the general policy regarding prosecutions, but that, as far as individual prosecutions within such general policy are concerned, there is power in their senior officer, the River Manager, to make the operational decisions. In reaching this conclusion, I have taken account of the fact that the decision to institute a prosecution is not determinative of the rights and entitlements of those affected. The court has control in the sense of deciding whether to issue the summons and then in hearing the case. I have also taken account of the fact that to require the Conservators to act as a body in the case of each individual against whom a prosecution is being considered would not be practical since they conduct their business at quarterly meetings.

In Solar Century Holdings Ltd v Secretary of State for Energy and Climate Change [2014] EWHC 3677 (Admin) the submissions made for the Claimant included that (1) certain pre-legislative statements were admissible and in effect bound the Government, according to the principles laid down by Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38 at paragraph 6, (2) certain statements made by the Government were “clear and unequivocal” representations which gave rise to a legitimate expectation, and (3) the expectation could not be trumped or thwarted by any of the policy considerations advanced by the Government.  Green J rejected all these submissions.  The case concerned renewable energy sources by way of large scale “solar farms”, governed by the Electricity Act 1989, as amended by the Energy Act 2013, and whether the Government was bound to maintain a particular scheme in place until 2017.  Clear and repeated representations had been made to that effect, but they had always been qualified.

As to (1) above, Green J said, at paragraph 48: “If … the language of the enactment is clear and unequivocal and inconsistent with the pre-legislative material, then a court cannot assume that Parliament necessarily intended to translate into statutory form the will of the Executive”.  At paragraph 52, Green J stated the principles as follows:-

“i)         When construing an enactment, including the exercise of power under an enactment, it is relevant to identify the intention or purpose of the measure, i.e. the mischief to which it is     directed.

ii)         In all cases (save with regard to consolidating enactments) the purpose or mischief may be identified by the posing of questions …  such as: If the legislation has changed, what has changed? If there is a problem which had to be resolved, what was the problem? If there was a blemish in the legislation, what was that blemish? If there was an improvement which was sought to be achieved, what was that improvement?

iii)         To identify the purpose or mischief and to answer these questions it is permissible to examine Explanatory Notes, White and Green Papers, Ministerial statements … and Law Commission Reports, all of which may be admissible forms of evidence.

iv)         However, not all such admissible sources are of equal weight. Those sources (such as Explanatory Notes) whose “shape” was closely connected to the “shape of the proposed legislation” may be more informative as guides (Westminster City Council) than other sources which are more remote from the final language selected by Parliament.

v)          In addition, a court may draw inferences from the statutory words actually used in the scheme of the legislation as a whole and from any case law on the underlying subject matter and a court might ask whether it may be inferred that Parliament intended to act consistently with the standard set out in case law … .

vi)         Material that is admissible will reflect the views of their authors. And the views of authors, including the Government of the day, do not necessarily reflect the will of Parliament (Westminster City Council). If there is an inconsistency between the statutory language and the pre-legislative, admissible, material it cannot, without more, therefore be assumed that the statutory purpose must reflect the purpose set out in pre-existing admissible material.

vii)        However, if there is a collision between a literal interpretation of an enactment and the contextual material with the consequence that the literal interpretation “is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief…“, then the enactment should be construed in the light of the purpose as evident from the historical context and mischief…”.

As to (2) above, Green J said, at paragraph 72-76:-

“72.      When what is objected to is the abrogation of a policy or a change of policy the starting point is that once a policy is promulgated and said to be settled there needs to be a rational ground for terminating it … But there is no presumption that policy cannot change; on the contrary it plainly can do so and frequently does. So the issue become whether there can be identified a representation of sufficient certitude that the policy will not be changed regardless of surrounding circumstances. As to this a representation that a policy will continue until a specified date is not the same as a promise that it will never be changed even if circumstances change. If it were otherwise then an intention to pursue a policy for a fixed period would become set in stone and permanently unyielding to changes in relevant circumstances however compelling they might be.

73.       And even if a sufficiently certain promise or representation has been made that a policy will continue in force and not be changed until a fixed date there is always a balance still to be struck between the retention of that policy and the strength of the (ex hypothesi) rational grounds which have arisen and which now are said by the Government to necessitate a frustration of that prior representation or promise. The test laid down by the Courts is whether the change of policy and the concomitant thwarting of the prior expectation amount to an abuse of power….”

“76.      …recognising that policy can change there is still a duty on the decision maker to weigh up the competing interests. There is no unfettered right to change policy (even for good reason) without putting those good reasons into the melting pot with the other countervailing reasons favouring retention of the policy and forming a rounded assessment of where the balance lies: …”

As to (3) above, Green J said, at paragraph 90:-

“… I consider that even if there were a legitimate expectation which arose it was amply offset by the powerful public interest considerations on the other side of the equation and the frustration of that expectation is not, nor comes close to being, an abuse of power.”

The Supreme Court has on 29 October 2014 decided R (Moseley, in substitution of Stirling deceased) v Haringey LBC [2014] UKSC 56 on appeal from [2013] EWCA Civ 116.  The subject matter is the authority’s Council Tax Reduction Scheme (“CTRS”) and the Consultation Document (“the CD”) in relation to the draft CTRS.  The CD explained the reduction in Central Government funding and stated that this means that the introduction of a local CTRS in Haringey will “directly affect the assistance provided” to everyone below pensionable age who had been receiving Council Tax Benefit.  The CD also contained a Questionnaire asking how the reduction in relief should be distributed among claimants.  Following the consultation exercise the authority decided to adopt a CTRS under which the level of council tax relief was reduced for 2013-2014 by 19.8% from 2012-2013 level for all claimants other than pensioners and the disabled.

The Supreme Court unanimously allowed the claimant’s appeal.  They declared that the consultation exercise was unlawful.  However, they declined to order the authority to undertake a fresh consultation exercise. This would have been disproportionate in the circumstances.

The Supreme Court (paragraphs 25, 35 and 44) gave its endorsement to the four Gunning/Coughlan criteria of a fair consultation.

At paragraph 26 Lord Wilson added that two further general points emerge from the authorities: (1) the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting; and (2) the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.

The critical passages are at paragraphs 27/28 and 39-41:-

“27.       Sometimes, particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options. …

28.        But, even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options. …”

“39.       … Meaningful public participation in this particular decision-making process, in a context with which the general public cannot be expected to be familiar, requires that the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme. …

40.        That is not to say that a duty to consult invariably requires the provision of information about options which have been rejected.  The matter may be made clear, one way or the other, by the terms of the relevant statutory provisions, … To the extent that the issue is left open by the relevant statutory provisions, the question will generally be whether, in the particular context, the provision of such information is necessary in order for the consultees to express meaningful views on the proposal. …

41.        Nor does a requirement to provide information about other options mean that there must be a detailed discussion of the alternatives or of the reasons for their rejection.  The consultation required in the present context is in respect of the draft scheme, not the rejected alternatives; and it is important, not least in the context of a public consultation exercise, that the consultation documents should be clear and understandable, and therefore should not be unduly complex or lengthy.  Never-theless, enough must be said about realistic alternatives, and the reasons for the local authority’s preferred choice, to enable the consultees to make an intelligent response in respect of the scheme on which their views are sought.”

Applying the law to the facts, the Supreme Court held that fairness demanded that the Consultation Document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the authority had concluded that they were unacceptable.  The consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief.  No other option was presented.  Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded.  Indeed, only an infinitesimal number of responses to the consultation alluded to other ways of meeting the shortfall.  Therefore, the consultation exercise was unfair and unlawful.  (However, it was not unlawful that the authority had failed to consult on the possible adoption of a Transitional Grant Scheme announced by Central Government only 5 weeks before the completion of the Consultation.

The purpose of this particular statutory duty was to ensure public participation in the local authority’s decision-making process.  Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives.  In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals.

In summary, 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 the authority 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 CTRS.

In R (Sumpter) v Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) Hickinbottom J summarised, at para 94, the general law in relation to a consultation process as follows:-

“i) Whether required by statute or (as in this case) voluntary, if performed, consultation must be carried out properly (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraph 108).

ii) Key features of a proper consultation process were set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at page 189 per Hodgson J (as approved by the Court of Appeal in Coughlan at paragraph 108), namely:

(a) consultation is undertaken at a time when the relevant proposal is still at a formative stage;
(b) adequate information is provided to consultees to enable them properly to respond to the consultation exercise;
(c) consultees are afforded adequate time in which to respond; and
(d) the decision-maker gives conscientious consideration to consultees’ responses.

iii) However, fairness is the touchstone: for consultation to be lawful, it must be fair.  That is the test.  Although consideration of the particular facets of fairness identified in Coughlan may assist, whether the consultation process is fair is a fact-sensitive question that depends upon all the circumstances of the particular case looked at as a whole, and without drawing artificial distinctions between particular stages of the whole process  (R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [28] per Maurice Kay J (as he then was), R (J L and A T Baird) v Environment Agency [2011] EWHC 939 (Admin) at [52] per Sullivan LJ, and R (Royal Brompton and Harefield Hospital NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9] per Arden LJ; see also R (Osborn) v Parole Board [2013] UKSC 61 at [64]-[71] per Lord Reed JSC).

iv) It is a matter for the court to decide whether a fair procedure was followed: its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required (Osborn at [65] per Lord Reed).

v) If it is alleged that a consultation process is unfair, it is for the claimant to show that the unfairness was such as to render the consultation process unlawful.  Especially with the benefit of hindsight, it may well be possible to identify how a consultation process might have been improved; but, even if it was less than ideal, it will become unlawful only if what has occurred makes it unfair as a matter of law.  That is a substantial hurdle: in Baird, Sullivan LJ said 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 at [51]; see also Royal Brompton at [13] per Arden LJ).

vi) The consultation documents must be intelligibly clear to the general body of interested persons, and present the issues fairly and in a way that facilitates an intelligent and effective response (R (Breckland District Council) v The Boundary Commission [2009] EWCA Civ 239 at [46] per Sir Anthony May P, and Royal Brompton at [8]-[14] per Arden LJ).

vii) To be fair and proper, consultation must be performed by the decision-maker with an open mind.  However, an open mind is not the same thing as an empty mind (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at [16] per Owen J, adopting a phrase used in the course of argument by Neil Garnham QC).  Therefore, whilst a decision-maker cannot have a predetermined option, such that consultation is a sham, he may have a preferred option; but he must disclose that to potential consultees “so as to better focus their responses” (R (Sardar) v Watford Borough Council [2006] EWCA 1590 (Admin) at [29] per Wilkie J).  A consultation may properly be focused upon a limited number of options or even a single proposal.

viii) The process must be considered as a whole; and, therefore, where a decision-maker is in fact prepared to accept and consider further representations after the close of the formal consultation, then those subsequent events can be taken into account in assessing whether the process was fair; although it may be appropriate to give those subsequent events less weight, because (eg) the opportunity to make representations was not given such widespread publicity as was given during the formal process (Baird at [52]).

ix) In cases where there has been a consultation exercise, and it is decided to have a further consultation, the fairness of that further exercise must be considered in the context of the earlier and fuller consultation process.  In such cases, it may not be unfair to any interested party for the further consultation exercise to be more limited, whether as to the identity of consultees, or the content and duration of the consultation (R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575, especially at [36]-[38]).

x) Proper consultation is an important part of the decision-making process.  The purposes of requiring fairness in procedural matters such as consultation include to ensure high standards of decision-making by public bodies, to enable parties interested in the subject matter to identify and draw to the attention of the decision-maker relevant factors which he may have overlooked to enable responses that will best facilitate a sound decision, and to avoid the sense of injustice which a person affected by a decision may otherwise feel if not given a proper opportunity to have their views known and taken into account (Osborn at [67]-[70]) per Lord Reed, and Baird at [41] per Sullivan LJ).  However, the obligations imposed upon a decision-maker in the course of consultation must not be unreasonably onerous, otherwise effective decision-making might be impaired and decision-makers might become reluctant to engage in voluntary consultation where (as in this case) there is no statutory duty to consult.”

At paragraph 117 the Judge added:-

“… R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) … R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) … show that, although a decision-maker may formulate options on which to consult and restrict the consultation to that option or those options, in certain circumstances it may be unfair and unlawful to exclude an option from a consultation exercise.  They make clear that a decision-maker, as long as he keeps an open mind, might have a very much preferred option: what he cannot do is, for practical purposes, exclude a legitimate option.”

As regards the PSED, the Judge said, at para 137:-

 “The duty requires a “conscious directing of the mind to the obligations” (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) per Davis J (as he then was)), “due regard” being the appropriate regard in all the circumstances.  In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at [78], Elias LJ illuminatingly explained:

“The concept of ‘due regard’ requires the court to ensure there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker.  In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

In R (Bailey) v London Borough of Brent Council [2011] EWCA Civ 1586 at [102], Davis LJ emphasised the importance of not interpreting the duty in such a way as to make decision-making unduly and unreasonably onerous.”

In IM Properties Development Ltd v Lichfield District Council [2014] EWHC  440 (Admin) Patterson J held that an e-mail sent by a committee chairman to members of the same political party telling them to vote in a particular manner fell within Section 25(2) of the Localism Act 2011 and was not to be taken as a predetermination.  She found, at para 86, that the tenor of the e-mail was not “so strident” as to remove the discretion on the part of the recipient as to how he or she would vote.  Patterson J added: “The debate shows a far reaching discussion between members and displays no evidence of closed minds in relation to the decisions that had to be taken”; and “A fair minded and reasonable observer in possession of all the facts would not be able to conclude on the basis of all the evidence that there was any real possibility of predetermination as a result of the e-mail …”.

In R (Sky Blue Sports & Leisure Ltd) v Coventry City Council [2014] EWHC 2089 (Admin), in which the Claimants unsuccessfully sought judicial review of the City Council’s Decision to lend £14.4 million to the company, ACL, that manages the stadium, the Ricoh Arena, at which Coventry City Football Club played, the Claimants’ assertions included that Council Members had failed to take into account relevant considerations in making the Decision because their Officers’ Report that recommended the Decision had allegedly been deficient and misleading.  Hickinbottom J rejected these allegations as not being arguable.  As regards the legal principles to be applied when considering a challenge of this kind, the Judge said, at paragraph 139 (emphasis added):-

            “i) A local authority acts unlawfully if, in making a decision, it fails to take into account a material consideration …  For these purposes, a consideration is material if the decision-maker might have decided the matter differently had he taken it into account …

ii) Decision-makers … (usually councillors, in full Council or in a committee to which decision-making is delegated) often act on the basis of information provided by its officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. In the absence of contrary evidence, it is a reasonable inference that, where a recommendation is adopted, the decision-making councillors follow the reasoning of the report.

iii) The councillors are not deemed to know something that the officers know, but which is not transmitted to them …

iv) The officers’ report is therefore often a crucial document. It has to be sufficiently clear and full to enable councillors to understand the important issues and the material considerations that bear upon them; and decide those issues within the limits of judgment that the law allows them. However, the courts have stressed the need for reports also to be concise and focused, and the dangers of reports being too long, elaborate or defensive. The councillors do not have to be provided with every detail of every relevant matter, but only those matters which are so relevant that they must be taken into account, i.e. the salient facts which give shape and substance to the matter such that, if they are not considered, it can be said that the matter itself has not been properly considered …

The assessment of how much and what information should go into a report to enable it to perform its function is itself a matter for the officers, exercising their own judgment …

v) Of course, if the material included is insufficient to enable the decision-making councillors to perform their function, or if it is misleading, a decision taken on the basis of a report may be challengeable. However, when challenged, officers’ reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole …

vi) In construing reports, it also has to be borne in mind that they are addressed to a “knowledgeable readership”, including councillors “who, by virtue of that membership, may be expected to have a substantial local and background knowledge” … As in this case, they may have been given briefings prior to the meeting at which the decision is taken. Furthermore, in deciding whether they have got sufficient information to make a properly informed decision or request further information or analysis, again that involves the exercise of judgment on their part. They are entitled to ask for more. Given the experience and expertise of councillors, coupled with the fact that they are democratically elected, the judicial approach to challenges to their decisions should be marked by particular prudence and caution …”

At paragraph 160 the Judge said (emphasis added):-

“…   As I have indicated, officers’ reports are to be read broadly and as a whole. Reading the Hastie Report thus, I consider the belated criticism of it unfounded. In my view, it set out, properly and succinctly, the important relevant matters that the councillors were required to take into account, including the relevant risks of the proposal as well as the potential benefits. The courts have been rightly cautious about requiring officers’ reports to be too full (see paragraph 139(iv) above): the dangers of such a requirement are obvious. A focused and succinct report, such as Mr Hastie’s Report in this case, is in my judgment positively to be commended.”

The main issue in the case, however, was whether or not the loan amounted to State Aid.  The Judge, applying the objective test of the Market Economy Investor Principle, ruled, at paragraphs 86-132 inclusive, that it did not.  A private investor in the Council’s position, as an investor in the stadium company seeking to protect its existing investment, may have made the same investment on the same terms.

Moreover, in rejecting an allegation that the Council’s conduct had been underhand and reprehensible, the Judge observed, at paragraph 35: “The Council was here engaged in the commercial field, and (subject to its public duties) it was entitled to act in the way that it considered was best in protecting its own commercial interests, namely its share in ACL”.

In order to comply with the provisions in Section 101 of the Local Government Act 1972 with respect to delegation of functions to officers, it is not essential for the scheme of delegation actually to identify the officers.  Lewis J in R (Pemberton International Ltd) v Lambeth LBC [2014] EWHC 1998 (Admin) holds, at paragraph 53, that it suffices that the scheme “sets out the process by which the officers authorised to exercise certain functions can be identified”.  This may be “a certain group of officers”.

In R (Bridgerow Ltd) v Cheshire West and Chester Borough Council [2014] EWHC 1187 (Admin) a local authority’s decision refusing to renew a sexual entertainment venue licence under the Local Government (Miscellaneous Provisions) Act 1982, as amended, was set aside where, in breach of the authority’s Constitution, the decision was taken by the full panel of twelve councillors instead of the three to whom it was delegated under the Constitution.  Stuart-Smith J emphasized that it is important that the manner in which executive functions are carried out is transparent and reliable.  A decision being taken by the wrong persons is a serious procedural irregularity, especially when political proportionality is involved.