October 5th, 2018 by James Goudie KC

In R (Help Refugees Ltd) v SSHD (2018) EWCA Civ 2098 the Court of Appeal has restated propositions in relation to the scope of a duty to consult, as follows:-

(1)       Irrespective of how the duty to consult has been generated, the common law duty of procedural fairness will inform the manner in which the consultation should be conducted;

(2)       The public body doing the consulting must put a consultee into a position properly to consider and respond to the consultation request, without which the consultation process would be defeated. Consultees must be told enough – and in sufficiently clear terms – to enable them to make an intelligent response. Therefore, a consultation will be unfair and unlawful if the proposer fails to give sufficient reasons for a proposal, or where the consultation paper is materially misleading, or so confused that it does not reasonably allow a proper and effective response.

(3)       The content of the duty – what the duty requires of the consultation – is fact-specific and can vary greatly from one context to another, depending on the particular provision in question, including its context and purpose. The requirements being linked particularly to the purpose of the consultation.

(4)       A consultation may be unlawful if it fails to achieve the purpose for which the duty to consult was imposed.

(5)       The Courts will not lightly find that a consultation process is unfair. Unless there is a specification as to the matters that are to be consulted upon, it is for the public body charged with performing the consultation to determine how it is to be carried out, including the manner and extent of the consultation, subject only to review by the Court on conventional judicial review grounds. Therefore, for a consultation to be found to be unlawful, “clear unfairness must be shown”.

(6)       The product of the consultation must be conscientiously taken into account before finalising any decision.

The Court of Appeal also said the following as regards when the duty of fairness at common law requires reasons to be given and that those reasons be adequate:-

(i) The common law will readily imply requirements of procedural fairness into a statutory framework even where the legislation itself is silent.

(ii) When procedural fairness is in question, the Court’s function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required, but to consider objectively whether there has been procedural unfairness.

(iii) The rule of law requires effective access to justice. Therefore, generally, unless (e.g.) excluded by Parliament, there must be a proper opportunity to challenge an administrative decision in the Court system. As a consequence, unless rendered impractical by operational requirements, sufficient reasons must be given for an administrative decision to allow a realistic prospect of such a challenge. Where the reasons given do not enable such a challenge, they will be legally inadequate.

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