Consultation

Kate Olley Landmark Chambers

24th October 2013

The starting point

• Whether or not there is an obligation to consult, where consultation is embarked upon it must be carried out fairly.

- what are the circumstances of the case? - what is the nature of the proposals under consideration? • Unless there are statutorily prescribed procedures, the

decision-maker will have a broad discretion as to how a consultation exercise should be carried out and what people should be consulted about.

Vale of Glamorgan Council v Lord Chancellor [2011] EWHC 1523 R (Madden) v Bury MBC [2002] EWHC 1882 R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516

R (Royal Brompton) v Joint Cttee of Primary Care Trusts [2012] EWCA 472

• Present the issues so as to facilitate an effective response. • Make the consultation document clear to the general body of consultees. • Ensure the document presents the information fairly. • The options for change must be fairly presented. • NB Object of requiring fairness: ensuring high standards in decision-

making and enabling responses which will best facilitate a sound decision. • Where a consultation process is alleged to be unfair, clear unfairness must

be shown- Sullivan J in Greenpeace [2007] EWHC 311: something must have gone ‘clearly and radically wrong’.

• Sufficient to show that unfairness affects only a group of the persons affected by the consultation (Medway); unfairness to the general body of consultees not required.

• Aspects of alleged unfairness should be reviewed both individually and in aggregate.

The Gunning (or Sedley) principles

• Formulated by Stephen Sedley QC in R v Brent LBC ex p Gunning (1985) 84 LGR 168 at 169

• Approved by Simon Brown LJ in R v Devon CC ex parte Baker [1995] 1 All ER 73 at 91g-j and

• The Court of Appeal in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 at 108

• Note CA in R (Royal Brompton) v Joint Cttee of PCTs [2012] EWCA Civ 472- “the Coughlan formula is a prescription for fairness”

(i)

Consultation must take place when the proposal is still at a formative stage • R (Bailey) v Brent [2011] EWHC 2572 • R (T and others) v Sheffield [2013] EWHC 2953

Keeping an open mind

• A decision-maker can consult on a preferred option or even a decision in principle, provided the consultation document is clear what the other options are (Nicol v Gateshead (1988) 87 LGR 435, applied in R (M) v Haringey [2013] EWCA Civ 116).

Evidence of a closed mind?

• Whether a decision maker will be found to have closed its mind to the outcome of consultation will be a question of fact based on the evidence.

But it is not necessary to consult on all options or on alternative means of achieving the same ends

• R v Worcs Health Council, ex p Kidderminster & District

Community Health Council [1999] EWCA Civ 1525 • R (Bailey) v Brent LBC [2011] EWHC 2572 (Admin)

Where a provisional view has been formed...

...Or where the decision maker is ‘minded’ to take a particular course, subject to the outcome of consultation:

It is expected that those being consulted should be informed of this “so as to better focus their responses”

(Wilkie J, R (Sardar) v Watford Borough Council [2006] EWHC 1590 Admin)

(ii) Sufficient reasons to allow for intelligent consideration and response

This means:

• Consultees should be made aware of the basis on which a proposal for consultation has been considered and will thereafter be considered.

• Those consulted should be aware of the criteria that will be applied when considering proposals and what factors will be considered ‘decisive’ or ‘of substantial importance’ at the end of the process (R (Capenhurst) v Leics CC [2004] EWHC 2124 approved in Robin Murray & Co v The Lord Chancellor [2011] EWHC 1528)

How much information?

• Nature of the group being consulted; relative expertise R (Breckland District Council) v The Boundary Committee

[2009] EWCA Civ 239

Information sharing?

• Ordinarily it is not necessary for the decision-maker to circulate the submissions of those who respond to the consultation to all others who have responded to it: R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640.

• Lord Woolf MR in Coughlan (para 112): “consultation is not litigation...”

Sharing of advice received?

• In general no obligation to communicate to consultees advice received from officials or internal material or information.

• No obligation to disclose own thought processes for criticism prior to making a decision (R (Edwards) v Environment Agency [2006] EWCA Civ 877 [103])

• Exceptions (see Robin Murray & Co & v The Lord Chancellor [2011] EWHC 1528)

- catalyst to do something fundamentally different - material which undermines the value of the consultation

responses

(iii) Adequate time for consideration and response

pause for thought...

No time frame

• Unless statutory time requirements are prescribed, there is

no necessary time frame within which the consultation must take place

• Shorter periods are permissible for urgently required decisions

• Judgment call required (take into account whether there has been prior discussion, also the complexity of the information disclosed)

(iv) Conscientious consideration of the results

But the decision-maker does not personally have to read every response provided in the process

Who should be consulted?

• A fair consultation requires fairness in deciding whom to consult as

well as fairness in deciding the subject matter of the consultation and its timing (Pill LJ, R (Milton Keynes Council v SSCLG [2011] EWCA Civ 1575)

• Individual consultation? - British Medical Association v. Secretary of State for Health [2008]

EWHC 599 - R (on the application of Staff Side of the Police Negotiating Board)

Secretary of State for Work and Pensions [2011] EWHC 3175 - R v Devon CC Ex p. Baker [1995] 1 All E R 73

Fresh consultation?

• Warning of Schiemann J in R v. Shropshire Health Authority and Secretary of State ex parte Duffus [1990] 1 Med L R 119

• No need where the changes are trivial (Silber J, East Kent Hospital NHS Trust)

• What is a fundamental change? (Kenneth Parker QC, R (Elphinstone) v Westminster City Council, [2008] EWHC 1287)

• Did the amended proposal itself emerge from and reflect the consultation process?

• R (Royal Brompton)- it is inherent in the consultation process that it is capable of being self-correcting.

When a consultation comes under challenge

Tests applied by the Court

• When- as soon as the consultation commences or before its conclusion?

• Test applied in assessing the fairness of the consultation - R (Greenpeace) v. Secretary of State for Trade & Industry

[2007] EWHC 311 - Devon County Council v Secretary of State for Communities

and Local Government [2010] EWHC 1456 • R (Royal Brompton)- in general the court should only step in

“if there is some irretrievable flaw in the consultation process”.

To consult or not to consult?

• The disadvantages:

The advantages: