In the recent case of Moseley v Haringey, the Supreme Court considered the necessary ingredients of proper consultation by a local authority. The Court endorsed a set of six requirements. It remains to be seen how the requirements set out in this case will translate across other types public authority consultation.

Moseley concerned the introduction of a new Scheme for council tax relief in Haringey. The council had consulted residents on their draft Scheme, as required by statute. The appellants successfully argued that the council’s consultation had, incorrectly, assumed that the council’s preferred approach was the only option available. Alternative approaches were not set out in the consultation documents, and they should have been, if only to explain why they were not appropriate.

Haringey’s consultation exercise was declared unfair and therefore unlawful, but the Court concluded that ordering a fresh consultation would not be proportionate in the circumstances. The Court also highlighted specific statutory duties placed on public authorities from time to time; in this case there had been a duty on the council to ensure public participation in the decision-making process, which Haringey had failed to fulfil.

In carrying out consultations, public authorities must be mindful of both their common law duty of fairness, and their obligations under statute.

Consultation requirements

Amongst other things, the judgment endorses six general principles: the four “Sedley criteria” plus two additional principles arising from wider case law.

​So, what are the Sedley criteria? In R v Brent London Borough Council, ex p Gunning it was accepted that the following four “basic requirements are essential if the consultation process is to have a sensible content”:​

  1. "a consultation must be at a time when proposals are still at a formative stage"
  2. "the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response"
  3. "adequate time must be given for consideration and response"
  4. "the product of consultation must be conscientiously taken into account in finalising any statutory proposals"

 In addition, the Court also endorsed two further general principles:

5. “the degree of specificity with which, in fairness, the public authority should conduct its consultation exercise may be influenced by the identity of those whom it is consulting.”

Is the public authority consulting e.g. local authorities, or members of the public? The latter and “particularly perhaps the economically disadvantaged” may require the consultation to be laid before them to a greater degree of specificity than the former, in order to be able to respond satisfactorily.

6. “the demands of fairness are likely to be somewhat higher when an authority contemplates depriving someone of an existing benefit or advantage than when the claimant is a bare applicant for a future benefit.” (citing Simon Brown LJ in R v Devon County Council, ex parte Baker [1995] 1 All ER 73).

Whilst the Supreme Court’s approval of these principles provides a helpful steer, it is not clear how they will be applied to consultations with different facts. In addition, Lord Reed stressed that, “The content of a duty to consult can… vary greatly from one statutory context to another… A mechanistic approach to the requirements of consultation should therefore be avoided.”

At BWB, our Public & Regulatory team has extensive experience of working with public authorities to ensure they comply with their common law and statutory duties in consultation. If you would like advice, please contact the team.

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Melanie Carter

Partner and Head of Public & Regulatory

+44(0)20 7551 7615

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Posted on 04/11/2014 in Legal Updates

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