In R ( Langton ) v SoS for DEFRA ( 2018 ) EWHC 2190 ( Admin ) Sir Ross Cranston restated principles in relation to consultation as follows.
Para 104 : there is a “ high threshold” of being “ clearly and radically wrong “ so as to render a consultation procedurally unfair and thus unlawful.
Para 105 : a consultation has to be considered in its statutory context.
Para 106 : once a consultation is launched it must be carried out fairly, but the statutory context is relevant when considering the performance of the consultation duty, the specific matters on which to consult, and the basis upon which the consultation should proceed.
Para 109 : only in exceptional cases and special circumstances is reference required to “ discarded alternatives”.
Para 115: as to how consultation responses are addressed, for unlawfulness the claimant must establish that a matter was such that no reasonable decision maker would have failed in the circumstances to take into account as a relevant consideration. Sir Ross observed that the duty to make reference to discarded alternatives arose in Moseley because of factors such as the nature of the consultees, the likely impact of the preferred proposal on their vital financial interests, the fact that the consultees could not be expected to identify the discarded alternatives, and the particularly wide terms of the statutory duty of consultation under consideration in that case.
On Tameside, Sir Ross said, at para 125, that the Tameside duty takes its colour from the statutory context. If the “ logic of the statute” does not compel certain considerations to be taken into account, it is for the decision maker to make the primary judgment as to what should be considered in the particular circumstances, with the Court making a secondary judgment where a matter is so “ obviously material “ that it would be irrational to ignore it.