May 22nd, 2024 by James Goudie KC

In R (NCCL) v SSHD (2024) EWHC 1181 (Admin) a Divisional Court (Green LJ and Kerr J) address a consultation issue from para 131, state the basic principles as follows:-

“152. The law governing the obligation to undertake public consultation is now reasonably well settled. A public body or decision maker owes no general duty in all cases to consult interested persons before deciding upon a measure. But the decision maker may become subject to such a duty in certain circumstances. A duty to consult may be enacted by a statutory provision. If the duty is statutory, the scope of the obligation is determined primarily by the terms of the statute. The process ordained in the statute must be followed and must, in addition, be undertaken in a fair manner.

153. A duty to consult may arise at common law in the second, third and fourth cases identified in the judgment of the Court in R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), at paragraph [98(2)] where: (i) there has been a promise to consult; (ii) there has been an established practice of consultation; and (iii) where exceptionally a failure to consult would lead to conspicuous unfairness…

154. It is however common ground that where a consultation exercise is carried out voluntarily, it must be carried out “properly and fairly” …

155. Not every process of communication and discussion by a public body with chosen interlocutors engages an obligation to carry out a full consultation exercise meeting the requirements of the Gunning criteria …”

“159. It is important to recognise the purpose of public consultation … its purpose “has various strands”: first, to improve the quality of decision making; secondly, to ensure fairness is accorded to those who may be affected by a regulatory change and to avoid the sense of injustice they may feel if they are not consulted; and thirdly, as “part of a wider democratic process” …

160. Thus, the purpose of consulting goes beyond merely informing the reasoning in support of the eventual decision. Consultation should ensure that the decision is both of high quality and justly reached. Fairness in carrying out a consultation is part of procedural fairness in decision making more generally. In Plantagenet, the Divisional Court treated the common law duty to consult as part of a wider common law duty of fairness, sitting alongside the two other common law duties …: to make sufficient enquiry and to have regard to relevant considerations.

161. As in other contexts where procedural fairness is at issue, what fairness demands will depend on the facts of the case and the context. Whether those demands have been satisfied in a particular case is a matter for the court, not the decision maker.”

“170. The Gunning criteria [do not] necessarily embody the totality of the requirements in all cases where consultation is undertaken on a voluntary basis. The criteria are valuable and might cover very many cases but the test is ultimately one of fairness, a “protean concept”…

171. We start with a question: who must be consulted? The answer to this is context sensitive, in a statutory consultation, the legislation may provide the answer, which may be such persons as the decision maker considers appropriate, or some similar formulation. In such cases, it is for the decision maker to decide, subject to rationality, who is appropriate to be consulted. The Court would not interfere merely because other persons not selected, could have been found appropriate.

172. In other cases, there might be no statutory duty to consult or even no duty to consult at all. …”

“181. … we take the law to be as stated by Elias LJ in the Milton Keynes case: there may be circumstances where a voluntary but selective consultation exercise will render a decision taker pursuant to it unlawful. Such cases might be relatively rare. The Court will tread with care in characterising as a consultation a process of Government engagement with those from whom it seeks advice.”

“184. Ground IV succeeds. A voluntary consultation was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”

The interest of the case is not confined to consultation. At paragraph 115 the Court said:-

“The principles of Parliamentary sovereignty and the separation of powers have their genesis in the common law and it the duty of the courts to protect those principles…

The issue … is whether those constitutional principles are violated when the Executive uses a statutory power to make subordinate legislation for an object and purpose which it has earlier failed to achieve by primary legislation.”

The answer (paragraph 118) was: “No”.

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