Consultation

December 11th, 2018

In R (MP) v SoS for Health and Social Care (2018) EWHC 3392 (Admin) Lewis J said:-

64. … If a public body chooses to consult upon a particular proposal, then it must do fairly and in accordance with well-established principles. If a public body chooses to consult on one set of proposals, but not to consult on another, different set of proposals, then, unless it can be shown that there is a legal obligation to consult upon the second set of proposals, it is not obliged to do so because it is consulting on the first set of proposals. …

65. The fact that the defendant chose to consult upon a very large number of proposals … does not alter the position. The two issues upon which he chose not to consult … were discrete, self-contained issues. The fact that notice of the decision to make those two changes was contained in the document setting out the response to the consultation exercise does not mean that the proposals were part of, or were linked in some way to the proposals that were consulted upon. The defendant did not fail to carry out the consultation exercise properly. The key question, therefore, is whether there was an obligation to consult upon these two changes.66. … the claimant contended that there was a legitimate expectation based on prior practice that there would be a public consultation on any significant amendments made …”

“70.    … Parliament has not imposed a statutory duty to consult. Nonetheless, there may be circumstances where the common law will impose a duty to consult before such a power is exercised. That may arise where there is a legitimate expectation of consultation. …”

72. The current approach is helpfully summarised by Flaux L.J. at paragraph 53 of his judgment in Brooke Energy in the following terms:

“The alleged practice must be clear, unequivocal and unconditional: see per Laws LJ in Bhatt Murphy at [29]; per Mostyn J in L at [17]. The practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted: see per Stanley Burnton J in R on the application of BAPIO Action Ltd. v Secretary of State for the Home Department [2007] EWHC 199 (Admin) at [53]. It is also clear from [17] of L and from [28] of Bhatt Murphy that there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice.””

Lewis J also addressed the PSED. He said:-

“92. The general approach to whether the public sector equality duty has been complied with is now well-established. The relevant principles are set out in the decision of the Court of Appeal in R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, especially at paragraph 26. There, the relevant government department decided to close a fund operated by an independent non-government body which, broadly, provided funding to assist disabled persons to lead independent lives. On the facts, the Court of Appeal concluded that the information provided to the relevant minister did not give her an adequate awareness that the proposals would place independent living in serious peril for a large number of people. The Court concluded that the minister had not complied with the public sector equality duty and quashed the decision.

93. The Court of Appeal in R (Baker) v Secretary of State for Communities and Local Government [2008] 2 P. & C.R. 6, [2008] EWCA Civ 141 has also given valuable guidance on assessing whether there had been compliance with section 71 of the Race Relations Act 1996Similar principles apply to the equivalent duty in section 149 of the 2010 Act: see Hotak v London Borough of Southwark [2016] AC 811 at paragraphs 73 to 74. In broad terms, the duty is a duty to have due regard to the specified matters not a duty to achieve a specific result. The duty is one of substance, not form, and the real issue is whether the relevant public authority has, in substance, had regard to the relevant matters, having regard to the substance of the decision and the authority’s reasoning. The absence of a reference to the public sector equality duty will not, of itself, necessarily mean that the decision-maker failed to have regard to the relevant matters although it is good practice to make reference to the duty, and evidentially useful in demonstrating discharge of the duty (see, e.g., Baker at paragraphs 36 to 37, and Bracking at paragraph 26). As Lord Neuberger observed at paragraph 74 of his judgment in Hotak v London Borough of Southwark [2016] AC 811 “the weight and extent of the duty are highly fact-sensitive and dependent on individual judgment”. It is also right to note the observations of the Court of Appeal in R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923, especially at paragraphs 83 and 85, that what is important is to pay due regard to the equality impact of proposals and that does not require a precise mathematical exercise to be carried out in relation to particular affected groups and that, depending on the circumstances, a relatively broad brush-approach may be appropriate.”

Lewis J said about the adequacy of inquiries:-

“118. The issue is whether the defendant has taken reasonable steps to acquire the information relevant to any consideration which is relevant to his decision: see Secretary of State for Education v Thameside [1977] AC 1014 at 1065B-C . It is for the defendant to decide the manner and intensity of the inquiries: see R (Khatun) v Newham London Borough Council [2005] QB 37 at paragraph 35. A court will not interfere unless the measures taken by the defendant to obtain information are irrational. …”

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