Secretary of State for the Home Department v Police and Crime Commissioner for the West Midlands
[2024] EWCA Civ 367
Secretary of State for Work and Pensions v Eveleigh & Ors
11 July 2023
[2023] EWCA Civ 810
Court of Appeal
The government did a survey to get ideas for a disability plan. A court said it wasn't a formal consultation needing strict rules, only a way to gather information before making a concrete plan.
Key Facts
- •The Secretary of State for Work and Pensions (Appellant) appealed a High Court decision that the UK Disability Survey, preceding the National Disability Strategy, constituted a consultation subject to common law obligations.
- •The Survey was conducted to gather information and views to inform the development of the National Disability Strategy.
- •The High Court judge found the Survey to be a consultation, and that the Secretary of State breached consultation obligations by not providing sufficient information for respondents to provide intelligent responses.
- •The claimants argued that the Secretary of State's failure to comply with the consultation requirements rendered the Strategy unlawful.
Legal Principles
Common law does not impose a general obligation to consult. Obligations arise from statutory duty, legitimate expectation, or conspicuous unfairness.
Gunning
If a consultation is embarked upon, it must be carried out properly. The Gunning requirements (formative stage, sufficient reasons, adequate time, conscientious consideration of responses) are relevant.
Coughlan
A duty to consult can arise from statute or a common law duty to act fairly. Procedural fairness must be linked to the consultation's purposes. In some cases, information on discarded alternatives may be required.
Moseley
Outcomes
Appeal allowed.
The Court of Appeal held that the Survey did not constitute a consultation subject to the Gunning requirements. The Strategy was at too early a stage of development to require a consultation of that nature; there was no concrete proposal to which the Gunning criteria could apply. The Survey's purpose was information gathering, not consultation on a specific proposal.
Permission to appeal on the second ground refused.
The Court declined to address whether a voluntary consultation is subject only to rationality review, as this was unnecessary given the decision on the first ground.
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