Fairness and the Common Law Duty to Consult

The English courts have in recent decades recognized a common law duty to consult as an aspect of the duty of fairness. It was the subject of a comprehensive treatment by the Supreme Court in R. (Moseley) v. London Borough of Haringey, [2014] UKSC 56, though it is not clear whether Lord Wilson’s more expansive view of consultation as part of the duty of fairness at common law or Lord Reed’s emphasis on the particular statutory context will prevail in future cases.

Lord Reed wrote, for example, at para. 35:

There is however no general common law duty to consult persons who may be affected by a measure before it is adopted. The reasons for the absence of such a duty were explained by Sedley LJ in R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139; [2008] ACD 20, paras 43-47. A duty of consultation will however exist in circumstances where there is a legitimate expectation of such consultation, usually arising from an interest which is held to be sufficient to found such an expectation, or from some promise or practice of consultation.

By contrast, Lord Wilson did not limit his reasoning to the statutory context. He acknowledged that a statute could trigger the duty to consult but suggested that “the duty cast by the common law upon a public authority to act fairly” could also do so; in either case, the “common law duty of procedural fairness will inform the manner in which the consultation should be conducted” (at para. 23). Three criteria provide a “prescription for fairness”:

First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third,… that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals (at para. 25, quoting lower courts)

Two further elements emerge from the case law, in Lord Wilson’s view. “First, 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” (at para. 26). Second, “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 (at para. 26, again quoting a lower court).

So, on some occasions, “particularly when statute does not limit the subject of the requisite consultation to the preferred option, fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options” (at para. 27). But at the same time, “even when the subject of the requisite consultation is limited to the preferred option, fairness may nevertheless require passing reference to be made to arguable yet discarded alternative options” (at para. 28). Lord Reed was pithy: “the consultees should be provided not only with information about the draft scheme, but also with an outline of the realistic alternatives, and an indication of the main reasons for the authority’s adoption of the draft scheme” (at para. 39).

On the facts here, the municipality (Haringey) had to make up a tax shortfall and proceeded on the basis that it would have to reduce the extent of a tax relief scheme for its less well-off residents. This was problematic because Haringey could have made up the shortfall in other ways. It was not required to dip into the tax relief pot:

Those whom Haringey was primarily consulting were the most economically disadvantaged of its residents. Their income was already at a basic level and the effect of Haringey’s proposed scheme would be to reduce it even below that level and thus in all likelihood to cause real hardship, while sparing its more prosperous residents from making any contribution to the shortfall in government funding. Fairness demanded that in the consultation document brief reference should be made to other ways of absorbing the shortfall and to the reasons why (unlike 58% of local authorities in England: see para 15 above) Haringey had concluded that they were unacceptable (at para. 29).

As Lord Reed put it, at para. 42:

The consultation document presented the proposed reduction in council tax support as if it were the inevitable consequence of the Government’s funding cuts, and thereby disguised the choice made by Haringey itself. It misleadingly implied that there were no possible alternatives to that choice. In reality, therefore, there was no consultation on the fundamental basis of the scheme.

Unhelpfully, Lady Hale and Lord Clarke agreed with both Lord Wilson and Lord Reed. They endorsed elements of Lord Reed’s general approach but only endorsed Lord Wilson’s disposal of the appeal. Quite what to make of that will doubtless much occupy future judges. For more, see Steve Broach and David Hart.

One might quibble with the more expansive approach on the basis that it gives reviewing courts a great deal of scope to determine what “fairness” requires in a given context. Pity the local government lawyers who have to design a consultation process in the knowledge that a court may conclude after the fact that a particular process was not “fair” in judicial eyes.

A contrasting recent Canadian case, set in the context of a statutory duty to consult about by-law setting out a ‘official community plan’, is Bradshaw v. Victoria (City), 2015 BCCA 4. Groberman J.A. recognizes municipalities have “broad discretion in determining the nature and extent of consultation” (at para. 41). A deferential standard applies (at para. 42). Here, it was satisfied:

There were some changes to the OCP late in the consultation process, including the expansion of development permit requirements. It is true, as the appellant alleges, that there was less opportunity for consultation on the amended provisions than on the OCP as a whole. That, however, is a function of the consultation process itself; where a local government engages in genuine consultation with a view to improving proposed legislation, that consultation is likely to result in some changes to the legislation as the process nears its conclusion. At some point, the consultation must come to an end, and a local government must be able to adopt a bylaw. In the case before us, there were extensive opportunities to comment on the OCP as it was developed, and right up to the moment of its adoption…(at paras. 43-44).

This certainly leaves more scope for decision-makers, which is as it should be (in my view) given the context-sensitive nature of consultation.

This content has been updated on January 19, 2015 at 11:48.