It is trite law that a public body must adopt a fair procedure to decision-making to ensure that members of the public, affected by a potentially adverse decision, are given a fair and informed say before the decision comes into effect. If a public body embarks on a consultation procedure, the outcome of which may be to deprive someone of a benefit that they previously enjoyed, then the common law imposes basic criteria that must be satisfied in order for that procedure to be considered lawful and fair.
The case of R. v Brent London Borough Council, ex. p. Gunning  84 LGR 168 established the following basic criteria (now known as the Sedley criteria), that all fair consultations must satisfy:
- consultation must be at a time when proposals are still at a formative stage;
- sufficient reasons must be given for any proposal to allow an intelligent consideration of and response to the proposal;
- adequate time must be given for consideration and response; and
- responses must be conscientiously taken into account in finalising any proposal.
Recently, the Supreme Court expanded the scope of the “sufficient reasons” criterion. This has been generally viewed as the high water mark of what the common law demands by way of a fair consultation. Since then, various cases have arguably read down the Supreme Court’s requirements, allowing a much wider discretion for the decision-maker.
The high water mark
The central issue in the Supreme Court case of R. (Moseley) v LB Haringey  UKSC 56 was the extent to which the law requires a decision-maker to provide information to the public on options that have been considered but not pursued and the reasons why such options have been discarded. Crucially, Lord Wilson in Moseley held that: “consulting about a proposal does inevitably involve inviting and considering views about possible alternatives,” and: “sometimes…fairness will require that interested persons be consulted not only upon the preferred option, but also upon arguable yet discarded alternative options.” Lord Reed added: “the provision of such information is necessary in order for the consultees to express meaningful views on the proposal.” This judgment was reached on the basis that a decision-maker should not enter into the consultation process having predetermined the outcome by not allowing potentially affected members of the public, particularly those who are economically disadvantaged, to have a say on alternative options, even if they are not the preferred options of the public authority.
Moreover, Lord Wilson went on to set out certain other important principles of a fair consultation, namely that: (i) the public body is under a duty to act fairly regardless of whether the consultation is a statutory requirement or not; (ii) the “democratic principle at the heart of our society” means that there is constitutional value in itself in involving, and hearing the views of, members of the public in the decision-making process; (iii) potentially affected members of the public, who are economically disadvantaged, should be given more specific information about the consultation by the public body; and (iv) the demands of fairness will be stricter where the outcome of the consultation may be to deprive someone of a benefit that they previously enjoyed.
Rowing against the tide
Interestingly, although hardly surprisingly, given the far-reaching impact of Moseley, a number of lower court cases have rowed the law back from requiring a public body to consult on alternatives in all circumstances.
In the case of R. (Angharad Morris and Donna Thomas) v Rhondda Cynon Taf County Borough Council  EWHC 1403 (Admin), in which Bindmans LLP were instructed by the claimants, the Administrative Court concluded that there was no inviolable rule established by Moseley that alternatives had to be consulted upon in every consultation exercise. The Administrative Court took a fact-sensitive approach to hold that sometimes fairness may require consultation on alternatives, only so far as the alternatives were realistic. Essentially, in this case the Administrative Court was of the opinion that the option of the status quo, namely funding for full-time nursery education, was deemed to be a sufficiently realistic alternative to the preferred option, despite the public body having stated in the consultation material that such an option was “considered to be unaffordable going forward.” Thus, the demands of fairness as established by Moseley were met on the facts.
Following Morris, the case of R. (on the application of Hall) v Leicestershire County Council  (unreported) held that it had been open for the public to submit alternative proposals, whereas it had been for the public body to decide how, and about what to, consult on. This reasoning appears to say that the public body need only consider alternative proposals as part of the consultation response, rather than beforehand as part of the list of options to be consulted upon. In this case, the public body was entitled to have a preferred option, provided that it had not closed its mind to other options. On these facts, it had not. Therefore, the consultation had not been unfair.
The case of Morris had also considered other post-Moseley decisions. In R. (on the application of Robson) v Salford City Council  EWCA Civ 6 it was held that, despite the fact that the consultation material produced by the public body had presented an incomplete picture, that did not amount to the public law error of conveying a positively misleading impression that other options were irrelevant, as had happened in Moseley. Accordingly, there had not been a failure to consult fairly.
Similarly, in R. (on the application of T) v Trafford MBC  EWHC 369 (Admin) the court concluded that the public body had not misled the public by suggesting that there was no alternative to the cuts. On the contrary, before the consultation, it had considered increasing council tax or using its reserves, and it had provided some information about why it had rejected those options. The court considered that it was lawful, and fair, for the public body to consult on a preferred option, and to arrive at a position before the consultation that increasing council tax or using reserves were not realistic alternatives that necessitated separate consultation.
Clearly, Moseley can no longer be viewed as the landmark judgment on the requirements of a fair consultation that many had hoped for. In practice, public bodies can ostensibly act fairly without consulting on alternative options to its preferred proposal. Nevertheless, there still remains an important condition from Moseley that public bodies can only do so, if they do not mislead the public, particularly where those who are economically disadvantaged have not been given sufficiently specific information about the proposal under consultation. It is at least arguable that a minimum requirement of fairness in Moseley means that a public body must not mislead the public by providing no information whatsoever about realistic alternatives. In such cases, there will still be a question of fairness that will have to be addressed.