This briefing examines the change in the court's approach to consultation, and explains how we can help public bodies to conduct lawful consultation exercises to avoid risk of challenge.

When should you consult?

A public body is not generally required to consult on its proposals. However, it will be obliged to do so in three cases:

• If there is a statutory duty to do so (for example, a duty to consult on certain NHS service reconfigurations under regulation 23(1)(a) of the Local Authority (Public Health, Health and Wellbeing Boards and Health Scrutiny) Regulations 2013)

• If there is a legitimate expectation that it will do so (whether because of a promise, or a sufficiently consistent past practice)

• If it would be conspicuously unfair not to consult

A consultation must be carried out fairly, and in accordance with the four requirements set down in R v London Borough of Brent ex p. Gunning [1985] LGR 168 ("the Gunning principles"):

• First, that consultation must be at a time when proposals are still at a formative stage

• Secondly, that the proposer must give sufficient reasons for any proposal to allow for intelligent consideration and response

• Thirdly, there should be adequate time for consideration and response

• Finally, results of the consultation should be conscientiously taken into account

If there is a duty to consult, then that consultation must be carried out fairly and in accordance with the Gunning criteria. It is also the case that where a public body embarks on a consultation, notwithstanding the fact that there is no duty on them to do so, the Gunning principles may apply to such voluntary consultation.

The recent case of Eveleigh suggests an emerging trend in the court's interpretation of consultation so as to narrow the criteria of what constitutes a "consultation".

The Eveleigh case

The challenge in R (Eveleigh) v Secretary of State for Work and Pensions [2023] EWCA Civ 810 ("Eveleigh") related to the National Disability Strategy, and the UK Disability Survey which preceded the Strategy.

The UK Disability Survey was launched "to help the government with understanding the barriers that disabled people face and what it may need to focus on to improve the lives of disabled people, we need to hear about your views and know more about your experiences". It did not outline the proposed content of the Strategy and it did not allow comment on any specific policy proposals to do so. When the Strategy itself was published some months later, the foreword referred to "the biggest listening exercise with disabled people in recent history".

At first instance, the judge found that the Survey was a consultation - it was referred to by the DWP as a consultation, placed on the Government's consultation hub, and was explicit that responses would be informing the Strategy.

On appeal, the Court of Appeal held that the mere use of the word "consultation" (even if it is repeated numerous times) does not itself attract any duty to consult or obligations to do so in accordance with the Gunning principles. The judgment was clear that, although the word "consultation" was used and it was placed on the "consultation hub" - these factors were "legally irrelevant". It is the substance, rather than the form of consultation, which is important.

Remembering the second Gunning criterion, proposals must be "crystallised sufficiently" to allow an opportunity to respond. The Court of Appeal found that the Survey merely sought views to inform the Strategy, as opposed to giving the opportunity to comment on any sufficiently crystallised provision of the Strategy.

Impact

The impact of Eveleigh is that it may be more difficult for claimants to challenge consultations moving forward - it cannot be assumed that because an exercise is labelled as a consultation that it is indeed one.

We are likely to see more arguments about whether proposals are or are not "sufficiently crystallised" and therefore whether an exercise is in fact a consultation at all. This can cut both ways for public bodies, as it is not difficult to foresee the argument being put the other way around to argue that a 'consultation' carried out by a public body was not in fact a consultation at all, rendering a subsequent decision unlawful.

The second ground - that even if the Survey was a consultation, as it was conducted voluntarily it did not require the application of the Gunning principles - was considered by Laing LJ in obiter. In her judgment, she stated that although she "saw the force of the argument that it is not a binding decision that the Gunning criteria apply to voluntary consultations, and that point has not been the subject of any binding decision since...there is a further question whether that passage in paragraph 108 of Coughlan (R v North and East Devon Health Authority, ex p Coughlan [2001] QB 213) is correct" but then declines to comment further on the basis that it was not necessary in this case given the decision on substantive Ground 1. This indicates the suggestion of possible departure in future from the traditional position in Coughlan that where a consultation is embarked upon, it must be carried out properly. We can look forward to more argument on that point in future cases.

This opens the door wide open for the court to consider further whether or not the Gunning principles apply at all to voluntary consultation in future.

How we can help

We specialise in supporting public bodies to make lawful decisions. For further information or to discuss any proposed or ongoing consultation exercise, please contact a member of our public law team.