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

High Court finds professional disciplinary process to be unlawful

In Captain Arshad Rashid v Oil Companies International Marine Forum [2019] EWHC 2239, the High Court criticised a voluntary association for unlawfully removing the accreditation of one of its inspectors, finding its disciplinary process to be inconsistent with the requirements of procedural fairness and in breach of contract.

Key Points

  • In the context of disciplinary processes conducted by voluntary and professional associations, an obligation to afford procedural fairness may arise either as a matter of contract law or public law.
  • Procedural fairness requires that a person adversely affected by a decision be provided with an opportunity to be heard and sufficient notice of the matters under consideration by the decision-maker.
  • In the circumstances of this case, a denial of procedural fairness arose from numerous flaws in the disciplinary committee’s process. The committee failed to honour an assurance that certain serious allegations previously raised with the claimant would not form part of its hearing process. Further, fresh allegations which had not previously been raised with the claimant or his lawyers were raised at the hearing and formed the basis of its final decision.

Background

The Oil Companies International Marine Forum (“OCIMF“) is a voluntary association of oil companies whose mission is to increase standards in safety and environmental responsibility in the shipping industry. In order to further this mission, OCIMF operates a ship inspection report (“SIRE“) programme and database which is based on inspection reports carried out by OCIMF-accredited ship inspectors.

The claimant in the case, Captain Arshad Rashid, undertook the necessary training and examinations through OCIMF and became an accredited SIRE inspector in February 2006.

OCIMF reserves the right to review the accreditation of its inspectors. Captain Rashid was informed by OCIMF that it had opened an inquiry regarding his conduct due to certain anomalies in his SIRE inspection schedule. The inquiry was to consider four allegations against Rashid: coercion of crew to falsify log entries relevant to his inspection; misrepresentation of the time spent on board vessels conducting inspections; providing instruction to trainee inspectors on how to falsify SIRE reports; and failure to follow guidelines when accompanied by trainee inspectors. Captain Rashid was then informed that a forthcoming disciplinary hearing would consider the allegation regarding the time spent on board vessels. The effect of this communication was that the more serious allegations of coercion of a crew member, corruption of a trainee, and failing to follow the guidance on accompanied inspections, were not being pursued.

At the disciplinary hearing, the OCIMF committee (the “Committee“) had before it the full OCIMF investigation report containing the more serious allegations. The Committee also raised a number of new factual concerns which had not previously been raised with Captain Rashid and which he was unaware would be the subject of the hearing. The Committee proceeded to recommend that Captain Rashid should have his accreditation permanently withdrawn, relying on these new matters as grounds for its recommendation.

Captain Rashid sought unsuccessfully to appeal the Committee’s recommendation through OCIMF’s internal appeals process. He then commenced proceedings against OCIMF in the High Court on the basis of breach of contract and / or principles of natural justice, alleging a denial of procedural fairness arising from the Committee imposing a sanction which was based on a consideration of matters outside the scope of its inquiry.

Decision

The Court considered, firstly, the source of law governing its decision-making process against Captain Rashid. The Court accepted that a contract existed between OCIMF and its inspectors, arising from the inspectors’ submission to the rules and in OCIMF’s agreement to operate the rules and permit the inspector to carry out inspections in accordance with them. An obligation of procedural fairness existed as a matter of contract law. In any event, an obligation for OCIMF to afford procedural fairness when disciplining its inspectors arose as a matter of public law.

The Court then considered the content of the Committee’s obligation to afford procedural fairness in the particular circumstances of this decision. A central tenet of procedural fairness is ensuring that a person adversely affected by a decision is provided with a reasonable opportunity to be heard; this entails that the person be provided sufficient notice of the allegations against him or her.

The allegations against Captain Rashid during the hearing were wider in scope than the one allegation he was informed would be the focus of the hearing. Captain Rashid was questioned about the standard of his reports, the number of inspections he carried out per year and the extent of rest periods during and between inspections. He had not been previously informed of these allegations. Each of the matters which formed the basis of the decision of the Committee could and would have been addressed in advance by Captain Rashid’s lawyers with decisive answers, had he been informed of the allegations against him.

The Court concluded that the Committee went beyond the appropriate scope of the inquiry in relation to both the questioning and the reasons for its decision, and that Captain Rashid was not given sufficient notice of the nature of the matters which formed the focus of the decision to remove his accreditation.

It was held that the handling of both the investigation and disciplinary hearing was deeply flawed, wholly unfair on the Captain and a serious breach of the principles of fairness and natural justice. Captain Rashid was awarded a declaration reinstating his accreditation and damages in the sum of £127,000 for loss of income.

Comment

A disciplinary body, such as the OCIMF Committee, may owe obligations to members who are the subject of investigations, both as a matter of contract law and public law.

There is no obligation on a disciplinary body to follow formal procedures akin to a court but it must comply with the common law rules of natural justice. The obligations of procedural fairness are “flexible and fact specific in their application”, depending on a range of factors including the nature of the decision, the rights affected, and the overall decision-making procedure. Fundamentally, fairness requires that a person adversely affected have an opportunity to be heard and to know the allegations they have to meet.

 

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