UK public bodies: principles of consultation in a pandemic

The ruling, in the case of R (Article 39) v Secretary of State for Education, granted some flexibility in the way that consultations may be carried out in the context of the coronavirus pandemic, but reinforced the fundamental principles of good consultation practice that must be complied with.

Public bodies should heed the warning from the judgment to avoid judicial review challenges; and businesses or other persons may wish to consider the option of a judicial review of a public body's decision where they feel they have not been adequately consulted.

The case

The charity Article 39, which promotes the rights of children, challenged by judicial review regulations made by the Department for Education (DfE) which were prompted by the coronavirus pandemic and concerns about the staffing challenges faced by local authorities. The regulations relaxed a number of requirements, such as statutory timescales, contained in the regulations governing the children’s social care system.

Before making the amendments, DfE consulted informally with local authorities, adoption agencies and service providers. It did not consult the Children's Commissioner for England (CC) or any other organisation representing the rights of children. The Court of Appeal ruled this failure to consult to be unlawful.

The court rehearsed the case law establishing that a duty to consult arises where there is a statutory duty to do so, or a legitimate expectation at common law. It found that some of the regulations made under the Care Standards Act 2000 were subject to a statutory duty in that Act to consult the CC. It found that a duty to consult on the rest of the regulations had arisen by way of a legitimate expectation based on the established practice of DfE consulting the CC when considering regulatory changes of this sort.

The exceptional urgent circumstances in March 2020 created by the coronavirus pandemic were recognised as relevant to the way the consultation was conducted. The court accepted that it was appropriate for DfE to consult stakeholders on short timescales by informal means of emails and phone calls.

In this way, the court was prepared to be pragmatic and flexible in the standards it would usually expect in 'normal' times as to the quality of the information and timescales, so that stakeholders are able to respond with informed views to contribute to the decision-making process.

However, the court was highly critical of the DfE decision not to consult the CC or any other organisation representing the rights of children. It emphasised the fundamental principle that if a public body chooses to consult, whether or not it is under a duty to do so, it must consult properly and fairly. In this case, the court held, DfE had conducted the consultation on an entirely one-sided basis and excluded those most directly affected by the changes.

Interestingly, the court left open the question of whether exceptionally urgent circumstances might in some cases override a duty to consult. However, it was not prepared to accept that possibility in this case, because it was clear from the facts that there was no good reason why DfE could not have consulted the CC at the same time and on the same basis as other stakeholders, in order to ensure a fair consultation.