Consultation, etc.

October 25th, 2019 by James Goudie KC

In Electronic Collar Manufacturers Association v SoS for DEFRA (2019) EWHC 2813 (Admin) Morris J considered a number of consultation and other challenges.  He summarised general principles on consultation at paragraph 27. From paragraph 109 he addressed together consultation and appearance of pre-determination. He said as to the law:-

Coughlan (1): Formative stage – Actual pre-determination

139. The requirement that the consultation takes place at a “formative stage” means that at the relevant time the decision-maker must have an “open mind on the issue of principle involved”: … The question is whether the decision-maker had already made up its mind to adopt the proposal or whether it was willing to reconsider its proposal in the light of the consultation process if a case to do so was made out. There must be no actual pre-determination on the part of the decision-maker. Where the decision-maker is consulting on a particular proposal, the consultation must include consultation on whether the proposal should be adopted, and not just on how. However … there is a legitimate distinction to be drawn between actual pre-determination on the part of the decision-maker and the decision-maker having a “pre-disposition” towards the proposal. The latter is permissible, and necessarily so in circumstances where the decision-maker is, as entitled to do, to determine the particular proposal upon which he wishes to consult, …

Appearance of pre-determination (Ground 2)

140. Whilst actual pre-determination (under Coughlan (1)) involves a finding on the subjective attitude or state of mind of the decision-maker, a decision may be impugned on the grounds of an appearance of pre-determination. The question here is for the Court to consider whether a fair-minded and informed observer would think that the evidence gives rise to real possibility or risk that the decision-maker had pre-determined the matter, in the sense of closing his mind to the merits of the issue to be decided: … That risk falls to be assessed by the Court: … However this is not easy to prove, where the role of the decision-maker in the statutory context is to put forward a proposal and/or his role is political: …

Coughlan (2): sufficient reason for proposal

141. There are a number of aspects to the Coughlan (2) requirement. First, the general obligation is to let those with a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this: …

142. Secondly, the presentation of the information must be fair. Thus it must be complete, not misleading and must not involve failure to disclose relevant information: … Whether non-disclosure made the consultation process so unfair as to be unlawful will depend upon the nature and potential impact of the proposal, the importance of the information to the justification for the proposal and for the decision ultimately taken, whether there was a good reason for not disclosing the information and whether the consultees were prejudiced by the non-disclosure, by depriving them of the opportunity of making representations which it would have been material for the decision-maker to take into account: … Thirdly, the decision-maker may present for consultation his or her preferred option: …

143. Fourthly, the question then arises as to whether the consultation document should refer to other options, alternative to the proposal being put forward. This was addressed in Moseley. …”

“149. In my judgment, the position in summary is as follows:

(1) There is no hard and fast rule that a consultation document must refer to discarded alternative options.

(2) In considering whether it should so refer, it is necessary to identify the purpose of the particular consultation, which in turn is to be identified from the statutory context of the particular duty.

(3) If the purpose of the particular consultation is general public participation in a wide-ranging consultation, then there might be a duty to make some reference to discarded alternatives. This will particularly be the case where general public cannot be expected to be familiar with the issues.

(4) If the purpose of the consultation is narrower, and to protect particular persons likely to be affected by the proposal, then there may not be a duty even to refer to discarded alternatives. This is more likely to be the case where the consultees can be expected to be aware of the alternatives.

(5) It is relevant to consider whether the failure to refer to discarded alternatives has caused prejudice to consultees, whether those alternatives would have been obvious to consultees and whether it was obvious why the decision-maker had not referred to the alternatives. …

Coughlan (3): Adequate time

150. What will constitute adequate time will depend on the particular facts of each case. For this reason there is little case authority expanding upon the content of this requirement. … It appears that cases where a breach of this requirement has been found have involved a very short period of consultation …

152. As to the information placed before the decision-maker, the decision-maker must know enough to ensure that nothing that is necessary, because legally relevant, for him to know is left out of account. But there is no requirement that he must know everything that is relevant. The claimant must establish that a matter was such that no reasonable decision-maker would have failed in the circumstances to take it into account as a relevant consideration: …

153. … Where there is a large number of consultation responses, conscientious consideration does not require a fully reasoned decision letter as following a public inquiry. The real question is whether the response to the problems is rational. Nevertheless there should be evidence of consideration of important points made by consultees:…”.

Conclusion on Ground 1 and Ground 2

180. The consultation process here was far from perfect – it could have been better. The Secretary of State could have expressed himself in some less trenchant terms; the Consultation Document was brief; it could have referred to alternative options; in places it used unfortunate language. However ultimately there was a large response to the consultation, representing a full range of views on e-collars; the case for alternative options was made and was considered by the Secretary of State. I ask myself the question whether overall, and taking account of such deficiencies as there were, the consultation process as a whole was so unfair as to be unlawful i.e. whether something had gone clearly and radically wrong. My answer to that question is No. The consultation as a whole was not clearly unfair. …”

From paragraph 181, Morris J addressed a Tameside challenge. At paragraph 183, he said:-

“183. A decision-maker is under a duty of inquiry: a duty to ask himself the right question and to take reasonable steps to acquaint him or herself with the relevant information to enable him to answer it correctly: … Subject to Wednesbury challenge, it is for the decision-maker and not the court to conclude what is relevant and to decide upon the manner and intensity of inquiry to be undertaken into any relevant factor accepted or demonstrated as such. The court should only strike down a decision not to make further inquiries if no reasonable decision-maker, possessed of material before the decision-maker, could suppose that the inquiries made were sufficient: …”

From paragraph 185, Morris J addressed a Wednesbury challenge. He said:-

“192. …Wednesbury unreasonableness has two distinct aspects:

(1) Whether the decision was outside the range of reasonable responses open to the decision-maker.

(2) As regards the process by which it was reached, a decision may be challenged on the basis that there is a demonstrable flaw in the reasoning which led to it – for example, that significant reliance was placed on an irrelevant consideration, or that there was no evidence to support an important step in the reasoning or that the reasoning involved a serious logical or methodological error. Factual error can also be regarded as an example of flawed reasoning – the test being whether a mistake as to a fact which was uncontentious and objectively verifiable played a material part in the decision-maker’s reasoning.

193. The intensity of the scrutiny of review depends on the circumstances of the case. There is a spectrum of decisions, from, at one end, decisions involving political judgment or policy where there is low intensity of review to, at the other end, decisions involving fundamental rights where review is stricter and sets a lower threshold of unreasonableness. The greater the policy content of a decision and the more remote the subject matter of a decision from ordinary judicial experience, the more hesitant the court must necessarily be in holding a decision to be irrational: …”

Finally, from paragraph 204, Morris J considered Article 1 Protocol 1 of the ECHR and Article 34 of the TFEU, and proportionality.  He said:-

212. The following principles are relevant to the application of A1P1:

(1) The concept of possessions under A1P1 is freestanding. Loss of future income per se is not a possession protected by A1P1. However the goodwill of a business with a present marketable value may constitute a possession. That present day value may reflect a capacity to earn profits in the future, which in turn is derived from the reputation that the business enjoys as a result of its past efforts: … If the interference causes a loss of marketable goodwill at the time of the interference and it can be capitalised, it is protected by A1P1.

(2) Both deprivation (expropriation) and control of possessions amount to interference within A1P1. But the distinction between the two is not crucial:

(3) A1P1 can be engaged by measures which are not yet effective. A proposal for consultation which, as a matter of fact and in practice, has an immediate and serious adverse impact on business will amount to an interference:…

(4) Justification of an interference with property rights protected by A1P1 involves four stages: (i) whether there is a legitimate aim which could justify the restriction of the protected right (ii) whether the measure adopted is rationally connected to that aim (iii) whether the aim could have been achieved by a less intrusive measure and (iv) whether, on a fair balance, the benefits of achieving the aim by the measure outweigh the disbenefits resulting from the restriction of the protected right: … A fair balance must be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The Court must consider whether the person concerned has to bear a disproportionate and excessive burden: …

(5) At the fourth, fair balance, stage, the Court must decide for itself the question. However where the authorities have given proper consideration to the issues of fair balance, the court should give appropriate weight to their assessment: …”

“214. … As regards EU principle of proportionality, this is not expressed or applied in the same way as the principle under the ECHR (set out above). Under EU law, it is for the national court to reach its own conclusion on proportionality (and not merely to review the proportionality assessment of the national authority responsible for the measure). Proportionality involves consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method. However, this does not require the selection of the least onerous method; rather the question is whether a less onerous method could have been used without unacceptably compromising the objective pursued. Further there is some debate as to whether there is a third question, sometimes referred to as proportionality stricto sensu: namely, whether the burden imposed by the measure is disproportionate to the benefits secured: …”

“219. … the Decision does not infringe either A1P1 or Article 34 TFEU and Ground 5 is not established.

220. These proceedings have raised a number of matters about which the Claimants have, understandably, had concerns. There are aspects of the Secretary of State’s approach to the introduction of a proposed ban on e-collars which are justifiably open to criticism. Ultimately however I conclude that the Secretary of State has not acted unlawfully.

221. … the Claimants have not established any of their grounds of challenge. Accordingly this claim for judicial review is dismissed.”

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