Public Law Case Update - Consultation Edition

In this edition, our experts examine the following cases:

Failure to consult: R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin); R (KE) v Bristol City Council [2018] EWHC 2103 (Admin); and R (Brook Energy Limited) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin); Failure to consult fairly: R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin); and R (on the application of British Homeopathic Association) v National Health Service Commissioning Board [2018] EWHC 1359 (Admin); Failure to consider the product of consultation: R (Kohler) v Mayor's Office for Policing and Crime [2018] EWHC 1881 (Admin); and R (WX) v Northamptonshire County Council [2018] EWHC 2178 (Admin). Consultation Duties and Requirements

Many decisions made by public bodies have an impact on or affect their stakeholders. Although there is no single overarching duty which obliges public bodies to seek and take account of the views of such stakeholders in making these decisions, a duty can arise in certain cases.

This may be because there is a statutory requirement to consult before making that particular type of decision; the public body has made a commitment to seek views from interested parties; or because in all the circumstances, fairness requires that it should seek those views. Moreover a public body can choose to consult even where it does not have a duty to do so.

The law states that where a public body carries out a consultation, whether because it is required or chooses to do so, it must consult properly. The basic requirements of an adequate consultation are interchangeably referred to as the 'Sedley criteria' and the 'Gunning principles'1, and have been endorsed by the Supreme Court2. They are that:

the consultation must be undertaken when proposals are still at a formative stage; sufficient reasons for the proposal must be given to allow intelligent consideration and response; adequate time is given for consideration and response; and the product of the consultation is conscientiously taken into account in the decision-making process. A significant body of case law has built up in which these principles have been applied by the courts. Notwithstanding this, the courts are continuing to be kept busy with judicial review challenges on the role consultation has or has not played in public bodies' decision-making.

We explore, by reference to some key themes, a number of recent cases.

Failure to consult

As noted above there are certain circumstances in which a public body is required to consult.

This includes, for example, where it has made public statements alluding to the prospect of a formal consultation being carried out, as confirmed in R (Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin), which concerned a decision by the defendant to change the provision of health services. Here the Clinical Commissioning Group (CCG) had engaged in a lengthy period of public engagement, but had made it publicly known that it intended to consult on the proposal following that engagement. It later decided not to follow through on that intention on the basis that its plan had...