March 19th, 2018 by James Goudie KC

In Kebbell Developments Ltd v Leeds City Council (2018) EWCA Civ 450 Singh LJ said in relation to an alleged duty of consultation at common law:-

“61.    … on its facts, Moseley concerned a situation in which there was a statutory duty of consultation. There was therefore no issue in that case about the existence of a duty of consultation.

  1. In my respectful view, it is important to be careful to distinguish between different senses of the word “consultation” which can sometimes be found in the authorities on this subject. First, there may be cases in which there is no dispute about the existence of an obligation to consult which is imposed upon a public authority. Very often the source of that obligation will be legislation, so there will be a statutory duty of consultation. In such cases the context will usually be not an individual decision which affects a particular person or persons but rather the formulation of general policy or draft legislation.
  2. The issue which may then arise is what the exact content of that duty of consultation requires. That was considered in the well known case of Gunning … :

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

  1. In Moseley, at para. 25, Lord Wilson cited that passage in Gunning with approval. He said:

“It is hard to see how any of his four suggested requirements could be rejected or indeed improved.”

As Lord Wilson noted, this Court has expressly endorsed them, first in Baker and then in Coughlan … . Lord Wilson added:

“The time has come for this Court also to endorse the Sedley criteria. They are … ‘a prescription for fairness’.”

65. Nevertheless, all of that goes to the content of the duty of consultation where it arises. In the present case, the issue is whether a duty of consultation arises at all. That is a logically prior question and requires the Court to consider what is said to be the source of such a duty if it is to be found to exist.

  1. The word “consultation” may be used in a second sense, where, I would respectfully suggest, it may be preferable to speak of “procedural fairness.” This is because what is under consideration is not consultation of the general public or a section of the public; but rather whether the duty to act fairly arises in relation to a particular person who is affected by a public authority’s decision.
  2. That is … the burden of what was said by Lord Reed JSC in Moseley, at paras. 34-38. The broad distinction between the two concepts was expressed … by Lord Reed, at para. 38: …
  3. … that passage sets out an important distinction, between (i) procedural fairness in the treatment of persons whose legally protected interests may be adversely affected and (ii) public participation in a public authority’s decision-making process. … although the word “consultation” is often and understandably used in the former context, it would be preferable to reserve it for use in the latter context, to the extent that the word is said to have legal significance.
  4. Procedural fairness in the former context is really the modern term for what used to be called “natural justice”, in particular the limb of it which used to be called audi alteram partem (“hear the other side”). Public law no longer talks of “judicial” or “quasi-judicial” disputes and so even the notion of a “hearing” seems inapt now but the fundamental requirement of procedural fairness is to give an opportunity to a person whose legally protected interests may be affected by a public authority’s decision to make representations to that authority before (or at least usually before) the decision is taken. To refer to “consultation” in that context is not wrong as a matter of language but I think it would be better to avoid using it in that context, so as to avoid confusion with the sense in which it is used in the context of public participation in a public authority’s processes for making policy or perhaps some form of legislation such as rules.”

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