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 steps will not necessarily entail a duty to give a consultee direct notice of a statutory consultation. Whether it does will depend on the context.” She further stated (paragraph 55) that if a consultee is expressly identified by the statute “it can readily be inferred that direct notification of the statutory consultation is required”; and if the group of consultees are not expressly identified in the statute, the duty to make statutory consultees aware of the invitation to express views “involves a combination of taking proactive steps to identify consultees”, so that those identified can be notified of the consultation, and “otherwise taking adequate steps to bring it to the attention of bodies representing the interests concerned”. She gave as an example, publicising the consultation in the media, including specialist media.
What Donaldson J, as he then was, said in the Aylesbury Mushrooms case, (1972) 1 WLR 191, was reaffirmed (emphasis added): “The essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice … without communication and the consequent opportunity of responding, there can be no consultation.”
Steyn J found (paragraph 77) that the consultation failed to comply with the requirement to let those who have a potential interest in the subject know “in clear terms what the proposal is”, and was “so unfair” as to be unlawful. She dismissed however (paragraph 103) an irrationality challenge: a precautionary approach in relation to the use of combustable materials in any significant attachments to an external wall cannot be castigated as irrational.
She quashed part of the Building Amendment Regulations 2018 pursuant to Section 14 of the Building Act 1984. She said:-
“110. I do not accept the Secretary of State’s submission that, unless I find that extending the ban to cover the Association’s members products was irrational, it would be contrary to the public interest to quash the regulation. The Secretary of State’s decision was based on the evidence before him. There is no evidence before the Court that the use of combustible materials in such products creates a fire risk. On the contrary, the evidence regarding attachments exacerbating fire spread related to fires starting on balconies and spreading as a result of combustible cladding: it is in no way suggestive of a fire risk from shutters, blinds or awnings.”
“112. In my judgment, the appropriate remedy is to quash reg.2(2) of the 2018 Regulations, insofar as it introduced reg.2(6)(b)(ii) of the 2010 Regulations. Section 14(3) of the Building Act 1984 required the Secretary of State to consult the Association before making that regulation and such consultation was required to be fair. That reflects the public interest in the Secretary of State receiving advice from representative bodies and hearing their representations before making a substantive change such as the introduction of a ban on the use of certain products in relevant buildings. The Association’s evidence demonstrates the importance of that safeguard and the promised review is not an adequate substitute.”