Consultation and PSED

July 30th, 2014 by James Goudie KC

In R (Sumpter) v Secretary of State for Work and Pensions [2014] EWHC 2434 (Admin) Hickinbottom J summarised, at para 94, the general law in relation to a consultation process as follows:-

“i) Whether required by statute or (as in this case) voluntary, if performed, consultation must be carried out properly (R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at paragraph 108).

ii) Key features of a proper consultation process were set out in R v Brent London Borough Council ex parte Gunning (1985) 84 LGR 168 at page 189 per Hodgson J (as approved by the Court of Appeal in Coughlan at paragraph 108), namely:

(a) consultation is undertaken at a time when the relevant proposal is still at a formative stage;
(b) adequate information is provided to consultees to enable them properly to respond to the consultation exercise;
(c) consultees are afforded adequate time in which to respond; and
(d) the decision-maker gives conscientious consideration to consultees’ responses.

iii) However, fairness is the touchstone: for consultation to be lawful, it must be fair.  That is the test.  Although consideration of the particular facets of fairness identified in Coughlan may assist, whether the consultation process is fair is a fact-sensitive question that depends upon all the circumstances of the particular case looked at as a whole, and without drawing artificial distinctions between particular stages of the whole process  (R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [28] per Maurice Kay J (as he then was), R (J L and A T Baird) v Environment Agency [2011] EWHC 939 (Admin) at [52] per Sullivan LJ, and R (Royal Brompton and Harefield Hospital NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472 at [9] per Arden LJ; see also R (Osborn) v Parole Board [2013] UKSC 61 at [64]-[71] per Lord Reed JSC).

iv) It is a matter for the court to decide whether a fair procedure was followed: its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required (Osborn at [65] per Lord Reed).

v) If it is alleged that a consultation process is unfair, it is for the claimant to show that the unfairness was such as to render the consultation process unlawful.  Especially with the benefit of hindsight, it may well be possible to identify how a consultation process might have been improved; but, even if it was less than ideal, it will become unlawful only if what has occurred makes it unfair as a matter of law.  That is a substantial hurdle: in Baird, Sullivan LJ said that “in reality a conclusion that a consultation process has been so unfair as to be unlawful is likely to be based on a factual finding that something has gone clearly and radically wrong (Baird at [51]; see also Royal Brompton at [13] per Arden LJ).

vi) The consultation documents must be intelligibly clear to the general body of interested persons, and present the issues fairly and in a way that facilitates an intelligent and effective response (R (Breckland District Council) v The Boundary Commission [2009] EWCA Civ 239 at [46] per Sir Anthony May P, and Royal Brompton at [8]-[14] per Arden LJ).

vii) To be fair and proper, consultation must be performed by the decision-maker with an open mind.  However, an open mind is not the same thing as an empty mind (R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at [16] per Owen J, adopting a phrase used in the course of argument by Neil Garnham QC).  Therefore, whilst a decision-maker cannot have a predetermined option, such that consultation is a sham, he may have a preferred option; but he must disclose that to potential consultees “so as to better focus their responses” (R (Sardar) v Watford Borough Council [2006] EWCA 1590 (Admin) at [29] per Wilkie J).  A consultation may properly be focused upon a limited number of options or even a single proposal.

viii) The process must be considered as a whole; and, therefore, where a decision-maker is in fact prepared to accept and consider further representations after the close of the formal consultation, then those subsequent events can be taken into account in assessing whether the process was fair; although it may be appropriate to give those subsequent events less weight, because (eg) the opportunity to make representations was not given such widespread publicity as was given during the formal process (Baird at [52]).

ix) In cases where there has been a consultation exercise, and it is decided to have a further consultation, the fairness of that further exercise must be considered in the context of the earlier and fuller consultation process.  In such cases, it may not be unfair to any interested party for the further consultation exercise to be more limited, whether as to the identity of consultees, or the content and duration of the consultation (R (Milton Keynes Council) v Secretary of State for Communities and Local Government [2011] EWCA Civ 1575, especially at [36]-[38]).

x) Proper consultation is an important part of the decision-making process.  The purposes of requiring fairness in procedural matters such as consultation include to ensure high standards of decision-making by public bodies, to enable parties interested in the subject matter to identify and draw to the attention of the decision-maker relevant factors which he may have overlooked to enable responses that will best facilitate a sound decision, and to avoid the sense of injustice which a person affected by a decision may otherwise feel if not given a proper opportunity to have their views known and taken into account (Osborn at [67]-[70]) per Lord Reed, and Baird at [41] per Sullivan LJ).  However, the obligations imposed upon a decision-maker in the course of consultation must not be unreasonably onerous, otherwise effective decision-making might be impaired and decision-makers might become reluctant to engage in voluntary consultation where (as in this case) there is no statutory duty to consult.”

At paragraph 117 the Judge added:-

“… R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) … R (Montpeliers and Trevors Association) v City of Westminster [2005] EWHC 16 (Admin) … show that, although a decision-maker may formulate options on which to consult and restrict the consultation to that option or those options, in certain circumstances it may be unfair and unlawful to exclude an option from a consultation exercise.  They make clear that a decision-maker, as long as he keeps an open mind, might have a very much preferred option: what he cannot do is, for practical purposes, exclude a legitimate option.”

As regards the PSED, the Judge said, at para 137:-

 “The duty requires a “conscious directing of the mind to the obligations” (R (Meany) v Harlow District Council [2009] EWHC 559 (Admin) per Davis J (as he then was)), “due regard” being the appropriate regard in all the circumstances.  In R (Hurley) v Secretary of State for Business, Innovation and Skills [2012] EWHC 201 (Admin) at [78], Elias LJ illuminatingly explained:

“The concept of ‘due regard’ requires the court to ensure there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision-maker.  In short, the decision-maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors.”

In R (Bailey) v London Borough of Brent Council [2011] EWCA Civ 1586 at [102], Davis LJ emphasised the importance of not interpreting the duty in such a way as to make decision-making unduly and unreasonably onerous.”

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