Designing the Consultation Exercise

Some implications of the recent East Kent NHS Trust and Medway Council (Gatwick Airport) cases.

Introduction

It has for long been common for statutes to provide that before a public body exercises a statutory function it should engage in a process of consultation with such categories of interested parties as the statute may define.

These procedural obligations have been quite rigorously policed by the judges, who have generally regarded as null and void acts and decisions taken following failure to have consulted, or consulted adequately. The judges have regarded such statutory duties as important both in terms of the solace they may provide the citizen in knowing that his or her opinions must be sought and considered by the public body in question, and also because such procedures have clear potential to enhance the quality of decision-making. Decisions informed by a broad range of information and opinion should, in principle, be of better quality than decisions taken from a narrower, and probably more remote, perspective.

In addition to requirements to consult which are provided expressly by statutory provision the judges have in recent years developed case-law doctrine which provides that in certain circumstances a duty to consult may exist even though the statute governing a public body's exercise of its functions is silent on the matter. This will be the case in circumstances where the public body may have conducted itself in such as way as, by word or deed, to have unequivocally given to a claimant a legitimate expectation that a decision would not be taken without his or her views first being sought and considered.

Two recent decisions of the Administrative Court have shed some valuable light on the scope of such obligations on public bodies to engage in consultation as a precondition of the valid exercise of statutory powers.

• R (on application of Smith) v East Kent NHS Trust and Another
(Administrative Court, 4 December 2002) deals with the duty (if any) to re-consult in cases where wisdom gained from a consultation exercise into certain stated policy options leads the decision-maker to conclude that a rather different option should ultimately be pursued. In the absence of a further process of consultation will there have been proper consultation in relation to that final decision?
• R (on application of Medway Council & ors) v Secretary of State for Transport
(Administrative Court, 26 November 2002) explores the circumstances in which a claimant may challenge a consultation exercise on the basis that the range of options upon which the consultation focuses has been set inappropriately narrowly.

The facts of East Kent were complex. In his judgment Silber J describes in some considerable detail the recent history of changes in health care provision at hospitals within Kent, the various options for further change which were presented for comment during a statutory consultation exercise in early 2002, and the decision about restructuring services as subsequently announced by East Kent NHS Trust.

For present purposes it is sufficient to note that Silber J's assessment of the facts was that the difference between the options consulted upon and the final decision of the NHS Trust was not so fundamental as to lead to the conclusion that that final decision had not been consulted upon. In the language of an earlier case, the final decisions could be regarded as having 'emerged from' and 'reflected' the consultation process. Accordingly, on the facts, the challenge failed.

However, the position would have been different had the judge found there to have been a more fundamental difference between the consultation options and the ultimate decisions. In such a case the challenge would have succeeded: the final decision would not have been preceded by a proper process of consultation.

To persuade a judge that the facts fall into this category may, however, not be easy: the test to be satsified is a strong one. Silber J explained the proper judicial approach as follows:

"The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the court should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt".

In this case a challenge was brought in relation to the scope of a consultation to be conducted by the Department for Transport into how how much extra airport capacity will be needed over the next 30 years, and where that capacity should be located. The consultation exercise would lead to a White Paper during 2003 setting out Government policy.

Objectors to possible development at certain potential locations (Stansted in Essex, and Cliffe in north Kent) objected to the omission of 'enlargement of capacity at Gatwick' from the range of options upon which consultees' views were sought.

Maurice Kay J accepted the arguments put forward by the claimants that the reasons put forward by the Government in support of its decision to exclude 'Gatwick' from the consultation process were tainted by irrationality, and held that the range of consultation options should have included the possibility of accommodating further capacity at that airport. Certain difficulties, referred to by Government, associated with the development of Gatwick were not such as to warrant omission of this option from the range of options in relation which the consultation should have been focused. Further, the known 'nature conservation' issues associated with development of an airport at Cliffe required that that option would need in due course to be assessed in the light of the availability of alternative sites which might have a lesser nature conservation impact. It followed that a proper initial assessment of the Cliffe option required a wide range of information as regards its comparative advantages and disadvantages as compared to all other potential locations (including Gatwick) for adding to airport capacity.

In relation to this last argument Maurice Kay J commented:

"The Consultation Document contemplates a serious possibility that the White Paper will express a policy which includes the development of Cliffe but ... at the moment, the Government has not decided whether there are any viable alternatives or whether imperative reasons of overriding public interest resolve the matter in favour of Cliffe. I therefore infer that it has not decided that Heathrow and Stansted, separately or together, would amount to a viable alternative or, indeed, that Heathrow, Stansted and Gatwick, separately or together, would not. Moreover, ... it may be the case that Gatwick, by itself or with one or both of the others, would be an ... alternative solution ....

I have come to the conclusion that, in the context of these conservation considerations, it was irrational to exclude all Gatwick options from the consultation process."

These two recent decisions provide a valuable reminder that public bodies including regulators should design their consultation processes with some care. Consultations tend nowadays to be fairly specific as regards the matters upon which views are particularly sought. This may assist consultees focus their responses, and may assist government in its collation and assessment of responses. However, some care should be taken that such itemisation of options or matters upon which a public body seeks opinions should not

• offer potential for challenge to the consultation process as involving too narrow a range of considerations relevant to the decision to be taken (as in Medway County Council (Gatwick)); or
• unduly constrain options as regards the ultimate decision to be taken without a re-consultation exercise being necessary (as contemplated in East Kent NHS)

Care taken in the design of the consultation exercise may well provide protection from the possibility of subsequent judicial challenge.

© Herbert Smith 2003

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