Features Consultations: when and how? It is wise for a public authority to consult before taking a decision that has a significant impact on third parties. Rupert Earle outlines when and Convention (private and family life) does not, of itself, how a public body should perform require consultation, national security was involved, and the challenge was too late. a consultation Rupert Earle At the other extreme, the same judge in R (The Partner The Cabinet Office’s revised Guidance on Consultation Plantagenet Alliance Limited) v The Secretary of T: 020 7551 7609 (July 2012) states ‘there may be a number of State for Justice and University of Leicester (with the [email protected] reasons to consult: to garner views and preferences, Cathedrals of Leicester and York as interested parties) to understand possible unintended consequences (2013) gave the alliance permission to seek a judicial Rupert is recognised as on a policy or to get views on implementation. a ‘star practitioner’ by review of the decision of the Secretary of State to Chambers UK, which Increasing the level of transparency improves the grant, without consultation, a licence for the body of comments that he ‘is quality of policy making by bringing to bear expertise Richard III to be buried in Leicester Cathedral. The universally lauded as and alternative perspectives, and identifying alliance was a campaigning organisation incorporated “a truly excellent lawyer; unintended effects and practical problems. It by the 17th Great-Nephew of Richard III to represent he is consistently should be part of strengthening policy making and the living collateral decedents of Richard III. English pragmatic, sensible should involve understanding the effects of the Heritage’s guidance for best practice of treatment of and clear”. Clients also policy on those affected…’. A decision taken appreciate his decades human remains excavated for Christian burial grounds of experience.’ without consultation may be quashed by the courts (2005) requires appropriate consultation so that as unlawful, although there is no general duty to the views of those with legitimate interests in those consult; to impose such a duty would stultify and remains may be taken into account, and taking steps delay prompt and necessary decision making. to determine the individual wishes of the dead. Emails disclosed pursuant to Freedom of Information Act In what circumstances to consult? requests suggested that a plan to consult had been considered but quietly dropped. There was significant A statute may impose an express duty on a public public interest in the two areas that asserted historical body to consult. claims to where Richard III should be buried (York and Leicester), and also commercial interests (footfall The common law may imply a duty to consult as at Leicester Cathedral had increased 20-fold since part of a public authority’s duty to act fairly: discovery of the body). The judge thought that Article n where there is a promise to consult (e.g. HM 8 has some role, requiring that the views of the Government’s 2010 Compact to engage with deceased person as to his funeral arrangements be voluntary organisations in taking decisions taken into account. Finally, it was an unprecedented relating to them); case. Richard III was the last king of England to die in battle. n where there has been an established practice of consultation; or The judge not only granted permission to seek a n in exceptional cases, where a failure to consult judicial review but also ordered full disclosure of would lead to clear unfairness, for example, relevant documents by the Secretary of State and the where a decision takes away an existing right, University of Leicester (which identified and holds the position or benefit. remains); made a protective costs order to prevent the defendant authorities recovering their costs of At one extreme, in R (Harrow Community Support the proceedings even if (ultimately) they successfully Limited) v The Secretary of State for Defence defended the case; and recommended that the parties (2012), Mr Justice Haddon-Cave found that there refer the issue of where Richard III should be reburied was no duty to consult residents of a tower block to an independent advisory panel, who should consult before deploying air defence missiles on the roof of all interested parties. that block for the duration of the London Olympics. An interference with Article 8 of the European 12 Public & Regulatory Law Update | Autumn 2013 Features How to consult? assessing the quality of care at different hospitals deprived it of the ability to make intelligent and Whether or not consultation is a legal requirement, informed responses to the consultation. The JCPCT if carried out it must be adequate and fair. In R sought to appeal the decision, but the whole process (Gunning) v London Borough of Brent (2005) the was subsequently suspended by The Secretary of court suggested that: State for Health. n the consultation must be at a time when proposals are still at a formative stage; When to challenge a failure to consult? n adequate information must be provided to In R (Nash) v Barnet London Borough Council consultees to enable them properly to respond (2013), Mr Justice Underhill found that Barnet to the consultation exercise; Council had failed to fulfil its duty to consult under Section 3(2) of the Local Government Act 1999 n adequate time must be given for response; before deciding whether to undertake a major n the decision maker must conscientiously take outsourcing programme; but the challenge failed into account those responses. because it had been brought well outside the three- month time limit (for judicial review challenges) In R (Save Our Surgery Limited) v Joint Committee from the date of the relevant decision. His decision of Primary Care Trusts (7 March 2013), Mrs Justice on delay was upheld by the Court of Appeal. Time Davies held unlawful the decision of JCPCT to ran from when the council made its well-publicised decide that the future performance of paediatric decisions in 2010 and 2011 to enter into the cardiac surgeries in England should be rationalised procurement process by way of a competitive to seven specialist centres not including Leeds dialogue, with subsequent heavy expenditure and General Infirmary. Save Our Surgery Limited (another use of time and resources, not when the decision entity formed expressly for a legal challenge) argued was made to accept Capita’s final tender as the successfully that JCPCT’s failure to disclose the preferred bid in December 2012. sub-scores awarded by the independent panel when Public & Regulatory Law Update | Autumn 2013 13.