Court of Appeal considers duty of consultation on public bodies

In R. (on the application of MP) v Secretary of State for Health and Social Care [2020] EWCA Civ 1634, the Court of Appeal clarified the common law duty of consultation upon public bodies based on fairness, and the test for when a legitimate expectation will be established.

Key points

  • The common law duty of fairness upon public bodies is not in itself enough to found a duty to consult.
  • When a public body undertakes a consultation, it has a duty to carry out that consultation properly, but that duty is confined to the proposals included in the consultation and does not necessarily extend to consultation on other proposals.
  • The legal test for establishing a procedural or substantive legitimate expectation requires:
    1. an express promise, representation or assurance which is “clear, unambiguous and devoid of relevant qualification” ; or
    2. a practice tantamount to such a promise.

Background

In 2015, the Appellant (an individual referred to as “MP”) was diagnosed with a form of blood cancer and began receiving NHS chemotherapy treatment. In the same year, MP was refused indefinite leave to remain in the UK. MP’s immigration status was unclear due to a pending appeal to the Upper Tribunal.

As a result of MP’s pending immigration status, MP was classed as an “overseas visitor” for the purposes of his next stage of treatment and under the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 he was required to pay for his treatment upfront.

The 2017 Regulations introduced three changes to the rules governing NHS charges for certain treatment for those not ordinarily resident in the UK:

  • 1: Charges to be paid in advance for non-urgent treatment;
  • 2: NHS trusts to be required to record the fact that a person was an overseas visitor liable to be charged; and
  • 3: Liability to pay charges to be extended to cover certain NHS-funded services provided in the community.

Prior to making the 2017 Regulations, the Government had in 2015 undertaken a public consultation into proposal 3 above but did not include proposals 1 and 2 above in the consultation.

MP commenced judicial review proceedings, alleging that the advance payment and recording of information provisions in the 2017 Regulations (1 and 2 above) should be quashed because the Secretary of State had failed to undertake due consultation before promulgating them. He was unsuccessful in the High Court. On appeal the Court of Appeal considered two grounds:

  1. Did the fact that the Secretary of State elected to undertake the 2015 consultation mean that he had a duty to consult on proposals 1 and 2 even if he would not otherwise have been obliged to do so?
  2. Whether the Secretary of State was under a duty to consult on the advance payment and recording of information requirements because there was a legitimate expectation of consultation.

Judgment

The Court of Appeal dismissed the appeal on both grounds.

Duty to consult

The Court held that, having chosen to undertake a consultation on a set of proposals in the 2015 Consultation created a duty upon the Secretary of State to consult on all proposals contained within it “properly” (R. v North and East Devon HA Ex p. Coughlan [2001] QB 213 applied). However that duty to consult did not extend to the disclosure or consultation of all other proposals it might have considered in the same field. Proposals 1 and 2 were held to be “discrete, self-contained issues” which were not linked to the proposals consulted upon within the 2015 consultation.

Legitimate expectation

The doctrine of legitimate expectation has two aspects: procedural as well as substantive. Procedural legitimate expectation refers to the expectation of an individual that they have a right to a certain procedure, such as the right to a hearing or a consultation, in advance of a decision being taken by a public body. Substantive legitimate expectation refers to a scenario where an individual or entity seeks a substantive benefit from a public body.

The Court of Appeal held that cases concerned with substantive legitimate expectation were relevant when considering procedural legitimate expectation and that the “fundamental ingredients” of procedural and substantive legitimate expectation were the same, applying R. (on the application of Heathrow Hub Ltd) v Secretary of State for Transport [2020] EWCA Civ 213. The Court clarified these fundamental ingredients by setting out the legal test for when a legitimate expectation (substantive or procedural) would be established in relation to a practice undertaken by a public body, namely that there must be:

  1. an express promise, representation or assurance which is “clear, unambiguous and devoid of relevant qualification“; or
  2. a practice tantamount to such a promise.

The Court concluded that in this case no legitimate expectation of consultation had been established, in circumstances where the Secretary of State had not previously consulted on all amendments to the regime governing NHS charges for those not ordinarily resident in the UK, and that when there was consultation not all the changes made had been consulted upon.

Commentary

The common law duty of fairness on public bodies is not enough to found a duty to consult on its own. Careful consideration is needed of all of the circumstances in a case to determine whether such a duty arises. The Court of Appeal noted with approval the identification by the Divisional Court in R. (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 of the four main circumstances in which a duty to consult may arise. First, where there is a statutory duty to consult. Secondly, where there has been a promise to consult. Thirdly, where there has been an established practice of consultation. And fourthly where, in exceptional cases, a failure to consult would lead to conspicuous unfairness.

The judgment makes clear that a procedural legitimate expectation cannot be established merely by showing a “sufficiently settled and uniform practice” which is not unequivocal. The test for such an expectation is a high bar as it is for a substantive legitimate expectation, namely that of a clear and unambiguous promise or representation.

Andrew Lidbetter

Andrew Lidbetter
Partner
+44 20 7466 2066

Nusrat Zar

Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa

Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Broad public consultations not always sufficient to meet the requirements of fairness

In R (on the application of British Blind & Shutter Association) v Secretary of State for Housing, Communities & Local Government [2019] EWHC 3162 (Admin) the High Court quashed a regulation inserted into the Building Regulations 2010 by the Building (Amendment Regulations) 2018 (“the 2018 Regulations”). The court found that the Secretary of State’s consultation in respect of this regulation was so unfair as to be unlawful as the consultation failed to let those who had a potential interest in the subject matter of the consultation know in clear terms what the proposal was.

Key Points

  • A statutory duty to consult may require the relevant public body to take positive steps to identify who might be affected by the proposals contained in a consultation and to communicate to those parties that the consultation is taking place.
  • The public body must communicate sufficient information about the nature and scope of the proposals contained in a consultation to ensure that those who might be affected by the proposals are aware that the consultation is relevant to them.
  • Carrying out a public consultation open to responses from all does not diminish or replace a duty to carry out more targeted communications towards specific bodies or individual who will be substantially affected by the proposals in a consultation.

Background

After the Grenfell Tower Fire in 2017 the Secretary of State for Housing, Communities & Local Government (the “Respondent”) set up a “Building Safety Programme” to try to improve building safety standards. As part of this, in 2018, he published a consultation titled “Banning the use of combustible materials in the external walls of high-rise residential buildings” (the “Consultation”). Following the Consultation, the 2018 Regulations were made and came into force on 21 December 2018.

The 2018 Regulations included regulation 6(2)(b)(ii) which banned any “specified attachment” from use in building work on high-rise buildings unless it complied with certain safety standards (“the Regulation”). The impact of this would have been to ban the use of external shutters, blinds and awnings attached to high-rise residential buildings.

The British Blind and Shutter Association (BBSA) (the “Claimant”) is a UK trade association which represents members who manufacture, sell, and install blinds, awnings, shutters and associated services in the UK.

The Claimant’s Company Secretary saw the title of the Consultation following its publication in June 2018. However he did not read the Consultation as the title led him to believe that it would not be relevant to members of the BBSA. As such, the Claimant did not respond to the consultation and the interests of its members were not taken into account when the 2018 Regulations were drafted.

The Claimant submitted that the Respondent breached his duty to consult the Claimant under s.14(3) of the Building Act 1984 (“s.14(3)”) which states that “Before making any building regulations containing substantive requirements, the Secretary of State shall consult…such other bodies as appear to him to be representative of the interests concerned”. The Claimant also argued that the ban was irrational as the Respondent failed to take into account material considerations such as the absence of evidence that the banned products posed any fire risk.

The Respondent argued that he had complied with the duty of consultation as the “interests concerned” in this case were so broad as to encompass the public at large and a public consultation had been carried out. The consultation was published on the government website, referred to in Parliament and was the subject of public scrutiny. Additionally, the decision to impose the ban was not irrational as the Respondent was entitled to take a precautionary approach to reducing the risk of fire based on the evidence before him.

Judgment

The court accepted the Claimant’s submission that the consultation was so unfair as to be unlawful and quashed the Regulation.

The court agreed that the Claimant was “a body representative of the interests concerned” (as defined in s.14(3)) because the 2018 Regulations introduced substantive requirements which effectively banned the products manufactured by the Claimant’s members. The statutory duty to consult applied in respect of the Claimant. The Respondent was free to go further than the statutory requirements and conduct a public consultation, but carrying out a public consultation did not diminish the requirement to consult the relevant representative bodies.

If a consultee is expressly identified by statute, direct notification of the statutory consultation is required. If groups of consultees are not expressly identified by statute (for example the reference to “representative bodies” in s.14(3)) the duty to make statutory consultees aware of the invitation to express their views involves a combination of taking proactive steps to identify consultees to notify them of the consultation and taking adequate steps to bring it to the attention of bodies representing the interests concerned (for example through publicising the consultation in specialist media).

In this case, the Respondent took no steps to identify statutory consultees and the Consultation was published generally (for example on the government website) rather than in specialist media. However the steps taken to publicise the Consultation were deemed to be sufficient given that in this case the Claimant had seen the title of the Consultation, meaning the Respondent had communicated it to them. The problem was instead that the Claimant did not realise the relevance of the Consultation to its members and so did not read or engage with the Consultation.

The court stated that the demands of fairness were higher in this context as the Regulation deprived members of an existing right to sell products, rather than depriving them of a potential future benefit.

The Consultation was deemed to be so unfair as to be unlawful as nothing in the title of the Consultation, description of the scope of the Consultation, or explanation of its background indicated that it proposed a ban which would extend to the devices covered by the Regulation. The Respondent’s statements, press release and the publicity in national and industry press regarding the Consultation focused on the proposal to ban combustible cladding. There was no reference to any evidence that the use of combustible materials in products such as external shutters, blinds and awnings was linked to an increased fire risk and the Claimant was not aware of any such evidence, meaning it had no reason to believe these products would be banned.

Finally, the court dismissed the Claimant’s submissions that the Regulation was irrational because the Respondent had failed to take into account material considerations including the absence of evidence that external shutters, blinds and awnings gave rise to a fire risk, the financial impact of the ban on the Claimant’s members and the benefits of the Claimant’s members’ products in reducing fire risks. The court considered that if these matters were presented to the Respondent during the Consultation he would have been obliged to take them into account. However the Claimant had no opportunity to raise such points and the Respondent was not aware of them. The decision to include the products within the ban was not irrational given the Respondent was entitled to be guided by the views of his technical experts and take a precautionary approach to preclude the use of any combustible materials, including in blinds, shutters and awnings.

Comment

Where public bodies have a statutory duty to consult, they should consider whether that gives rise to positive duties to take steps to identify those to whom the proposals in a consultation may be relevant and to ensure that proposals are communicated to them in sufficient detail. This may require public bodies to take proactive steps to identify which groups may be affected by a consultation, and ensure that the consultation is announced in media relevant to these bodies or communicated to them directly. Fair communication of a consultation involves more than sending the title or a general summary of a consultation to parties who may be affected by its proposals. Public bodies must ensure that they provide sufficiently detailed information on the content of a consultation to ensure recipients of their communications are aware that it contains proposals which could be relevant to them.

Andrew Lidbetter

Andrew Lidbetter
Partner
+44 20 7466 2066

Nusrat Zar

Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa

Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Hannah Smith

Hannah Smith
Associate
+44 20 7466 2847