https://www.bailii.org/ew/cases/EWCA/Civ/2023/810.html
A previous ruling which found the Government’s National Disability Strategy survey was unlawful has been overturned by the Court of Appeal (Civil Division). The judgment was handed down on 11 July 2023, following a hearing on 28 June 2023 before Lady Justice Macur, Lord Justice Bean and Lady Justice Elisabeth Laing.
Background
Four disabled claimants had previously brought judicial review proceedings in January 2022 in R (Binder & Others) v Secretary of State for Work and Pensions [2022] EWHC 105 (Admin) over the Government’s UK Disability Survey. The Government had undertaken the Survey as part of the implementation of its National Disability Strategy, a manifesto pledge from 2019.
The High Court had found that the Survey amounted to a consultation, and therefore the Gunning principles would apply as to the quality being such as be adequate. Having established that it counted as consultation, it went on to find that the Secretary of State for Work and Pensions, Therese Coffey, had not furnished the recipients with enough information to enable a meaningful response, thereby not complying with the Gunning principles, which led Griffiths J (the Judge) to quash the Strategy.
The Appeal
The Government, in lodging its appeal against this judgment, advanced two grounds:
Ground 1: That the Judge in the High Court was wrong to find that the Survey attracted legal obligations (i.e. that it amounted to a consultation) by contending that it was instead an information-gathering exercise; and
Ground 2: That the Gunning principles do not apply to voluntary consultations (the Government had not previously raised this ground before the High Court and so sought leave to raise it before the Court of Appeal).
Relevant case law
The key case law applying to consultation, and referenced in the proceedings, is:
- Gunning R v Brent London Borough Council ex p Gunning (1985) 84 LGR 168 (which established the Gunning principles)
- Coughlan R v North and East Devon Health Authority ex p Coughlan [1999] QB 213; [2000] 2 WLR 622; and
- Moseley R (Moseley) v Haringey London Borough Council [2014] UKSC 56; [2014] 1 WLR 3947
Judgment
Ground 1
Laing LJ found in favour of the Government on Ground 1, agreeing that the survey did not amount to a consultation, but was instead an information-gathering exercise.
Her reasoning was that: “there is no magic in the word ‘consultation’. It is a word which in ordinary usage has a range of meanings. The mere use of that word cannot entail legal consequences, especially if that word is used by people who are not lawyers. For that reason, the repeated use by the Disability Unit of the word ‘consultation’ and the fact that the Survey was put on the Consultation Hub are legally irrelevant.” and that “when a public authority engages with the public, whether that engagement attracts legal obligations is a question of substance, not form.”
“All the cases in which the Gunning criteria have been held to apply are cases in which a public authority contemplated making a specific decision which would or might adversely affect a particular person or group of people. The three main cases [i.e. Gunning, Coughlan and Moseley] concern closing and merging specific schools in the area of a local education authority, closing an NHS facility for the long-term care of a very few patients, and the adoption of a particular council tax reduction scheme which might make poor residents in the area of a billing authority even poorer than they were already.”
“Unsurprisingly, it might be thought, the Gunning criteria therefore assume that a public authority is proposing to make a specific decision which is likely to have a direct (and usually adverse) impact on a person or on a defined group of people. The Strategy is not comparable with those proposed decisions. It is a different thing altogether: a series of general policy commitments which are at such a high level of abstraction that it is not easy to see their direct negative (or positive) impact on a particular person or group of people. So the Strategy is not obviously the type of intended decision to which the Gunning criteria can, or are intended to, apply.”
“In my judgment, the Strategy had not reached a stage at which it could conceivably have been the subject of a ‘consultation’ complying with the Gunning criteria. It is not suggested that, at the time of the Survey, the Disability Unit had a secret draft of the Strategy locked in a drawer. The purpose of the Survey was to find out information and views which might ‘inform’ the Strategy. That suggests to me that the potential Strategy was no more than an inchoate plan which would take shape as and when information was gathered, and in response to that information. The references to respondents’ views shaping or informing the Strategy, far from showing, as the Judge seems to have thought, that the Survey was a ‘consultation’, tend to show, instead, that there was not, at that stage, a concrete proposal to which the Gunning criteria could apply.”
Ground 2
Laing LJ refused the Secretary of State permission to appeal on this newly asserted further ground. Her reasoning was that:
“In the light of my decision on ground 1, anything I were to say about ground 2 would
not be necessary to my decision. I see the force of the Secretary of State’s submissions
that the passage in paragraph 108 of Coughlan (see paragraph 12, above) was not the
subject of argument or reasoned decision in that case and has not been since, however
many times it has been repeated in the authorities. I therefore also see 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, however, which is, binding or not, whether that passage is
nevertheless correct. Since it is not necessary for me to decide that issue, I decline to
do so.” [91]
However, she did go on, to say that:
“Precisely because I have held that the Gunning criteria could not apply in this case, I
find the counter-factual assumption (that they do apply) impossible to make on these
facts. That is a further reason for not considering ground 2. Finally, if it is to be assumed
that a public authority has freely decided to consult on the sort of decision to which the
Gunning criteria are capable of applying, I also find it difficult to see, whether the test
is fairness, or rationality, why the Gunning criteria, or an equivalent, should not apply
to that exercise.”
Comment:
What is interesting, and perhaps rather ironic about this case, is that so often public authorities are chastised for not carrying out engagement with stakeholders early enough in the policy process and that any consultation, such that it is, is often too constrained in terms of the questions it asks, and done too late in the process, when the policy proposals have already taken shape and there is limited scope to influence them. For example, in TLAP’s ladder of co-production, ‘consultation’ is seen as falling short of the standard of ‘co-production’, partly because the involvement is not sought from the outset of policy design.
The significance of how the Survey was referred to in these instances (noting that it was referred to in other instances as a survey and not a consultation) was quickly put to bed by LJ Elisabeth Laing: “when a public authority engages with the public, [whether] that engagement attracts legal obligations is a question of substance, not form”.
In this particular case, no specific proposals were being advanced, leading Laing LJ to conclude that “the Strategy is not obviously the type of intended decision to which the Gunning criteria can, or are intended to, apply”.
The judgment also turned on the fact that “the Strategy had not reached a stage at which it could conceivably have been the subject of a ‘consultation’ complying with the Gunning criteria”. Laing LJ was incisive in her assessment that consultations are undertaken when at least some proposals have already taken shape: “The references to respondents’ views shaping or informing the Strategy, far from showing, as the Judge seems to have thought, that the Survey was a ‘consultation’, tend to show, instead, that there was not, at that stage, a concrete proposal to which the Gunning criteria could apply.”