What are the key cases on public consultation in the past 12 months?

R (on the application of The Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin), [2018] All ER (D) 35 (Aug) – a decision by the Lord Chancellor to introduce regulations to reduce fees payable under the Litigators Graduated Fees Scheme – was quashed as, among other things, it was based on an unlawful consultation. The consultation was held to be procedurally unfair because there had been no opportunity for the public to comment on statistical analysis that been relied upon by the Ministry of Justice in making its decision, be-cause the analysis had not been disclosed in the consultation documents.

R (on the application of Buckingham) v NHS Corby Clinical Commissioning Group [2018] EWHC 2080 (Admin)—a decision in relation to an NHS service reconfiguration—was quashed due in part to a failure to un-dertake consultation. No consultation had taken place, despite the fact that the defendant had stated in public that it would do so. There was a legitimate expectation of consultation and no consultation had been carried out without good reason for not doing so. The defendant had also failed in its duty to have regard to its public sector equality duty.
R (on the application of KE and others) v Bristol City Council [2018] EWHC 2103 – a decision by a local authority to set the funding for the provision of special educational needs education – was quashed due to a fail-ure to consult. No consultation had been carried out in relation to the decision, and this was in breach of the public sector equality duty as those affected by the decision were not consulted.

What principles of best practice have emerged on effective consultation?

It most cases the duty to consult in relation to a particular decision-making process will be prescribed in legis-lation. It is, however, important to remember that a duty to consult can arise from the common law duty of a public authority to act fairly, the duty in section 149 of the Equalities Act 2010 (EA 2010) and the public law principle of legitimate expectation.

The recent cases outlined above are a reminder that a duty to consult can arise in cases other than those where consultation is specifically prescribed in the legislation relating to that decision-making process.

What effect is the EA 2010 public sector equality duty having on consultation?

EA 2010, s 149(1), on the public sector equality duty, states:

‘A public authority must, in the exercise of its functions, have due regard to the need to—

• (a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
• (b) advance equality of opportunity between persons who share a relevant protected character-istic and persons who do not share it;
• (c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.’

he effect on consultation of this public sector equality duty is summarised in R (on the application of KE) at paras [50]–[52]. The context will significantly affect the steps needed to comply with the duty. What is clear is that decision-makers must make a conscious and conscientious effort to take account of the statutory criteria. They must evaluate the impact or likely impact of their decision on the relevant equality needs and must take reasonable steps to understand those impacts. What the reasonable steps are will depend on the context, but can be as simple as ensuring the decision-maker has an understanding of the practical impact on people with protected characteristics.

Underhill LJ in R (on the application of Unison) v Lord Chancellor and another [2015] EWCA Civ 935, [2016] 4 All ER 25 stated that where an impact was obvious as a matter of common sense, but the extent of the impact was difficult to predict, there might be ‘nothing wrong in making a reasonable judgment and then monitoring the outcome with a view to making any adjustments that may seem necessary’.

Paragraph [52] of R (on the application of KE) is particularly helpful in summarising the issue:

‘Consideration of the issue of whether there has been due regard to the listed equality needs requires analy-sis of substance not form. There is, by implication, a duty of inquiry upon any decision-maker who must take reasonable steps to inquire into the issues, so that the impact, or likely impact, of the decision upon those of the listed equality needs who are potentially affected by the decision, can be understood. On appropriate facts, this may require no more than an understanding of the practical impact on the people with protected characteristics who are affected by the decision, so there is little hard evidence about likely effects (see para 121 of R (Unison) v Lord Chancellor). However, it may require much more, including consultation. Context is everything.’

What guidance would you give to a public body assessing whether a consultation is necessary and if so how to undertake it to avoid challenge?

Careful consideration of the particular facts in question is increasingly necessary as a duty to consult can arise where it is not otherwise prescribed in statute.

Public bodies should particularly be aware of giving rise to a legitimate expectation of consultation. During the early phases of any project, a public body should consider whether it may need to consult on proposals, and if there is any doubt as to whether it will consult, then it should not publicly commit itself to doing so.

In some cases, for example where consultation is not required, and a public body would not want to set a precedent for doing so again in future, then it may be preferable not to consult on an issue. However, in general, where there is doubt as to whether a consultation is required, it will be preferable to carry one out. Even taking into account the additional time and cost involved in consulting, it is almost always more cost-effective than having a decision challenged, with the resulting delay and, ultimately, the potential for the decision-making processing having to be restarted and repeated (including consultation) in any event.

Alex Dillistone is a public law, planning and environmental lawyer specialising in infrastructure and energy projects at Winckworth Sherwood.