Consultation after Moseley, again

May 19th, 2015 by James Goudie KC

In R (Morris) v Rhondda Cynon Taff CBC [2015] EWHC 1403 (Admin) the Council proposed that its funding of nursery education should change. Before deciding to do so it chose to embark upon a consultation exercise. A challenge to the adequacy of the consultation process failed.

At paragraph 62, Patterson J stated:-

“62. In my judgment the case of Moseley , as has been said, generally states the previous principles on consultation. That means that once a consultation has been embarked upon for it to be fair it has to:

i) let those with a potential interest in the subject matter know clearly what the proposal of the public authority is;

ii) explain why the proposal is under positive consideration;

iii) give the consultees sufficient information so that they can make an informed response to the proposal under consideration;

iv) allow sufficient time for those consultees to be able to submit their informed response;

v) conscientiously consider the product of the consultation and take that into account when reaching and taking the final decision.”

Patterson J added:-

“63. … As part of presenting information in a clear way, the decision maker may present his preferred option. Part of the available information to be presented to the public may be alternative options for change. What is an alternative option will depend on the factual and context specific circumstances of the consultation in question.”

65. The case of L & P … confirms the political nature of budgetary considerations and how a Court has to be cautious about trespassing over the line which is the boundary of a democratically made decision. …”

Patterson J further said:-

“68. After the decision in Moseley it is clear that the issue of fairness in a consultation exercise is very context specific. …”

“75. In short, there is no inviolable rule established by Moseley that alternatives must be consulted upon in every consultation exercise. Sometimes fairness may require it to be the case so that consultees can make sense of the consultation exercise. When that is the case the alternatives will have to be realistic alternatives. What is realistic will always depend upon the particular circumstances of the consultation to be carried out.”

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