November 24th, 2020 by James Goudie KC

In R ( Article 39 ) v SoS for Education (2020) EWCA Civ 1577 the Court of Appeal holds that the omission by the SoS to include in consultation bodies representing children in care, before making coronavirus amendments to SIs governing the children’s social care system, was unlawful. The Court sets out the general principles relating to consultation at paragraphs 26-37 inclusive, and its discussion and conclusions from paragraph 75.

The Court recognised that the pandemic created an urgent and very difficult problem, but said, at paragraph 76:-

“… the urgency was not so great as to preclude at least a short informal consultation…”

“…the fact that the SoS was facing difficult decisions … made it important that he should receive as wide a range of advice as possible.”

The Court concluded, at paragraph 81, that the SoS was under a duty to consult the Children’s Commissioner and other bodies representing children’s rights, on account of :-

(1) Statutory duty, under Section 22(9) of the Care Standards Act 2000;

(2) Common law, by reason of established “practice”; and

(3) Common law, by reason of “conspicuous unfairness” not to do.

The Court accepted, at paragraph 84, that it was plainly appropriate for consultation to be conducted in a “rapid, informal fashion”, substantially by email, rather than a more formal, drawn-out process, BUT there was no good reason why that process should not have included the Commissioner and other bodies. On the contrary, there were “very good reasons” why they should have been consulted, because:-

“They were the organisations best equipped to identify the impact of the proposed amendments on vulnerable children. By consulting them, the SoS would have been better equipped to make judgments.”

All the purposes of consultation articulated by the Supreme Court in the Mosely case were present: paragraph 85.

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