FAIRNESS, CONSULTATION AND THE SUPREME COURT: THERE IS (SOMETIMES) AN ALTERNATIVE

By Richard Clayton QC

In the last few years Austerity Britain has generated a large number of judicial review challenges to public spending cuts, particularly against local authorities.  Many cases allege that the public body has consulted unlawfully. The legal principles involved have been firmly established.  However, in October 2014 the Supreme Court in R(Moseley) v Haringey LBC[2014] 1 WLR 394 added a new ingredient to the mix, and the courts are still in the process of working out the implications of that decision.

The general approach to the principles of consultation was recently summarised by the Court of Appeal in R(United Company Rusal PLC) v The London Metal Exchange[2014] EWCA Civ 1271.  Assuming that a public bod is under a duty to consult, the content of  that duty to consult is governed by a common law duty to act fairly, and the Court should only intervene if there is a clear reason on the facts of the case for holding that the consultation is unfair: [25]-[27].  The Court of Appeal stressed that the application of the duty of fairness is intensely case-sensitive; and approved the approach of Sullivan J held in R(Greenpeace Limited) v Secretary of State for Trade and Industry[2007] EWHC 311 (Admin):judgments are not to be construed as though they were enactments of general application, and the extent to which judicial dicta are a response to the particular factual matrix of the case under consideration must always be borne in mind.

The principles of fair consultation have been settled for many years.  In Moseley the Supreme Court endorsed [25] the long standing Sedley principles formulated in 1984  by Stephen Sedley QC in argument in R v Brent LBC ex p Gunning (1985) 84 LGR 168 (subsequently approved by the Court of Appeal in  R v Devon County Council ex p Baker [1995] 1 All ER 73 pp 91 and 87 and in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213 [108]; and see also R(Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts (2012) 126 BMLR 134 [9] where Arden LJ described the Sedley criteria as a  ‘a prescription for fairness’.)

‘Fairness, Consultation, and the Supreme Court: There Is (Sometimes) an Alternative’ by Richard
Clayton QC was first published on U.K. Const. L. Blog (16th Mar 2015) available at:
http://ukconstitutionallaw.org

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