Courts Consider Public Authorities' Duty To Consult

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Employment and HR, Strategy, Employee Rights/ Labour Relations, Government Policy & Public Finance
• Author: Mr Andrew Lidbetter, Nusrat Zar and Jasveer Randhawa
• Published date: 15 August 2023

Two recent judgments relating to consultation outline the fact and context specific nature of this area. In one decision, the Court of Appeal overturned the High Court's finding that the Government's National Disability Strategy was unlawful on the basis that the voluntary exercise undertaken did not meet the requirements of a fair consultation (R (on the application of Secretary of State for Work and Pensions) v Eveleigh [2023] EWCA Civ 810). In the second decision, the High Court found that the Secretary of State for Business and Trade failed to comply with his statutory duty to consult (R (on the application of ASLEF and ors) v Secretary of State for Business and Trade [2023] EWHC 1781 (Admin).

Key points

• The common law requirements of a fair consultation are based on the assumptions that a public authority is proposing a specific decision which is likely to have some impact and that is at a sufficiently crystallised stage to allow the public authority to provide sufficient information to enable consultees to respond intelligently and provide views which might influence the decision.
• If these assumptions are not present, then the proposal cannot be said to conceivably be the subject of a consultation to which the common law requirements of a fair consultation apply.
• A statutory duty to consult cannot be satisfied simply provided there was consultation at some point before the making of any regulations, but regardless of the time elapsed since, or the quality of, the consultation.
• A fresh decision does not necessarily require a fresh consultation, so long as evidence shows that the decision was informed by the views and the evidence of bodies which were representative of the interests concerned.
• In assessing whether there is a duty to consult further on a proposal, a court will take into account the lapse of time, the developments in the intervening period, the reasons why the proposal was not originally implemented, and any new reasons for wanting to implement it.

R (on the application of Secretary of State for Work and Pensions) v Eveleigh

Background

This was an appeal from a High Court judgment which allowed an application for judicial review of the National Disability Strategy (the "Strategy") published by the Secretary of State for Work and Pensions (the "SoSWP") in July 2021.

The claim related to an online UK Disability Survey (the "Survey") published by the Cabinet Office's Disability Unit in January 2021, for the purpose of collecting...