Key Facts
- •Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) made it unlawful for employment businesses to supply workers to employers during official industrial action.
- •In 2015, a consultation was held on revoking Regulation 7, with the majority opposing the change. The proposal was subsequently dropped.
- •In June 2022, the government decided to revoke Regulation 7 without further consultation, leading to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 (SI 2022/852).
- •Thirteen trade unions challenged this decision, arguing failure to consult under section 12(2) of the Employment Agencies Act 1973 and breach of Article 11 ECHR.
Legal Principles
Meaningful consultation requires (1) consultation at a formative stage, (2) sufficient reasons for proposals, (3) adequate time for response, and (4) conscientious consideration of responses.
R v Brent London Borough Council, Ex p Gunning (1985) 84 LGR 168
Statutory duty to consult requires conscientious consideration of responses by the Secretary of State personally, not just officials.
R (National Association of Health Stores) v Department of Health [2005] EWCA Civ 154
Section 12(2) of the 1973 Act requires consultation with representative bodies before making regulations.
Employment Agencies Act 1973, section 12(2)
In deciding whether to re-consult due to changed circumstances, the court considers whether the change was so significant that failure to consult further is unlawful.
Various case law including R (Smith) v East Kent Hospital NHS Trust and Another [2002] EWHC 2640 (Admin); R (Elphinstone) v City of Westminster [2008] EWCA Civ 1069; R (Stirling) v Haringey LBC [2013] EWCA Civ 116
Under section 31(2A) Senior Courts Act 1981, relief must be refused if it's highly likely the outcome would not have been substantially different without the unlawful conduct.
Senior Courts Act 1981, section 31(2A)
The court determines fairness in consultation, not just whether there was a 'duty to re-consult'.
R (Moseley) v Haringey London Borough Council [2014] UKSC 56
Outcomes
Ground 1 (failure to consult) succeeded.
The Secretary of State did not conscientiously consider the 2015 consultation responses before the June 2022 decision. The significant time lapse, changes in circumstances, and the lack of a compelling reason for haste rendered the decision to not consult further unlawful.
Ground 2 (Article 11 ECHR breach) not decided.
Given the success on Ground 1 and the hypothetical nature of the Article 11 claim in light of the potential for future consultation and further evidence, the court declined to address this ground.
2022 Regulations quashed.
Due to the failure to comply with the statutory duty to consult under section 12(2) of the 1973 Act.