Another twist in the consultation case law – so just what is a consultation?

In R (Liberty) v Secretary of State for the Home Department [2025] EWCA Civ 571, the Court of Appeal upheld the Divisional Court's decision that the previous Government acted unlawfully in seeking to amend primary legislation in a way that gave the police broad powers to restrict protests. As well as finding the use of Henry VIII powers ultra vires, the decision provides a further development in the spate of recent caselaw on consultation.

The public law team at Herbert Smith Freehills LLP represented Public Law Project (PLP) on a pro bono basis in the case, with PLP providing assistance to the court in support of Liberty's challenge.

Key Points

• The leading Court of Appeal decision in Eveleigh is not authority for the proposition that, in any case where a decision maker chooses to seek the views of an interested party at the formative stage of a "sufficiently crystallised" proposal affecting the rights of a particular group, that must be treated as a formal consultation attracting the requirements of common law procedural fairness.
• Instead, whether a process constitutes a formal consultation in that sense, and with those consequences, has to be judged by a wider assessment of its purpose and character.
• The court implied that a process aimed at gathering opinions from various affected parties, both for and against a proposal, may be likely to be classified as a formal consultation that needs to adhere to the Gunning criteria for a fair consultation.

Background

The claimant, Liberty, challenged the lawfulness of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (the Regulations), introduced pursuant to a power in the Police, Crime, Sentencing and Courts Act 2022 to define certain terms in the Public Order Act 1986.

The Public Order Act 1986, as amended, permits police officers to impose conditions on public processions and assemblies if certain thresholds are met, including if the officer reasonably believes that the procession or assembly may result in "serious disruption to the life of the community". Where conditions are imposed, it may be a criminal offence not to comply.

The Police, Crime, Sentencing and Courts Act 2022 contained a power for the Home Secretary to make regulations about what "serious disruption to the life of the community" means. The Regulations stated that they were made under this power and defined "serious disruption" as any disruption that is "more than minor".

Prior to the Regulations being made, the Government had attempted to include the relevant changes in primary legislation, by including them as amendments to the then Public Order Bill, but was defeated in the House of Lords and made no further attempt to reintroduce the amendments into primary legislation during that Parliamentary session. Instead, the Government simply exercised the Henry VIII power to make the Regulations, introducing the same changes by secondary legislation.

Divisional Court judgment

The Divisional Court had upheld Liberty's challenge to the Regulations on two grounds:

1. That the Regulations were ultra vires. The concept of "more than minor" disruption did not fall within the scope of "serious" disruption, the relevant concept in the enabling power. This conclusion was consistent with the ordinary and natural language of the relevant words, principles of construction appliable to Henry VIII powers, and considerations of legal certainty, amongst other principles.
2. That by seeking the views of various bodies such as the Metropolitan Police but not protest groups or groups representing the interests of protesters, the Government had voluntarily undertaken a consultation process which was one sided and not fairly carried out. This was therefore procedurally unfair and unlawful.

Court of Appeal decision

Ultra Vires

The Secretary of State (SoS) argued that the power to create regulations "about the meaning" of the word "serious" was broad and that "more than minor" fell within the range of "linguistically tenable" meanings of "serious." It was argued that whether the definition in the Regulations matched Parliament's intended meaning in the original Act's undefined language was irrelevant, as was the fact that it was a use of a Henry VIII power since there was no ambiguity.  

However, the Court of Appeal dismissed this ground of appeal, agreeing with the Divisional Court that the word "serious" could not reasonably include anything merely "more than minor." The court pointed to contextual factors emphasising that Parliament did not intend to give a power to provide for a definition which lowered that threshold, such as that the legislation interfered with fundamental rights. Additionally, the Court of Appeal noted that a narrower interpretation should be adopted when dealing with a Henry VIII power, in accordance with established authority.

Consultation

The SoS argued that the Divisional Court had erred in concluding that there had been a voluntary consultation exercise, and that the Regulations resulted from an unfairly one-sided consultation process.

Liberty relied on what it described as the principle established in R (Coughlan) v North & East Devon Health Authority [1999] EWCA Civ 1871(the Coughlan principle), namely that if a voluntary consultation is undertaken, it must be carried out "properly," in accordance with the Gunning criteria. Liberty argued that the Home Office's series of meetings and communications in December 2022 to discuss the Regulations with various policing bodies constituted a voluntary consultation to which the Coughlan principle applied, and that the consultation was unfairly conducted because no representatives of protesters were involved, making it wholly one-sided.

In response the SoS maintained that the series of meetings and communications did not amount to consultation in the sense that would attract the requirements of fairness, but was simply targeted engagement of the kind ministers proposing legislation routinely conduct with other relevant public authorities.

Underhill LJ reviewed the leading authorities in the area. In doing so he commented that, as a matter of principle, if Coughlan is right to say that a voluntary consultation must be carried out fairly, it is hard to see why that obligation should not extend to a fair selection of consultees. He also noted previous authority distinguishing between a formal consultation process ("with all the baggage inherent in that process") and meetings and exchanges of views with interested parties "falling short of that". It is only if the decision-maker has undertaken a consultation that any question of unfair selection of consultees may arise - if it is not a consultation, the fact that the engagement is one-sided goes nowhere. 

Liberty argued, relying on R (Eveleigh) v Secretary of State for Work and Pensions [2023] EWCA Civ 810 (Eveleigh), that engaging with stakeholders constitutes a consultation to which the Gunning criteria apply if:

• there was a sufficiently crystallised proposal;
• it was likely that proposal would impact a particular group (usually adversely); and
• the proposal was at a formative stage.

The Court of Appeal did not accept Eveleigh was authority for this proposition, unlike the Divisional Court. Instead the Court of Appeal interpreted Eveleigh as establishing that without these characteristics the Gunning criteria would not apply, but this did not mean that whenever these three criteria were fulfilled the process would necessarily constitute a formal consultation attracting the Gunning requirements. These criteria may be necessary, but they are not sufficient. Rather, whether the process constitutes a formal consultation in that sense, and with those consequences, has to be judged by a wider assessment of its purpose and character.

The Court of Appeal observed that accepting Liberty's submission would mean that, in a case where there was otherwise no statutory or common law duty to consult, a decision-maker would nevertheless come under such duty if they chose to engage with any third party in circumstances satisfying these three criteria. In practice, public authorities contemplating a legislative measure which will affect a particular group are likely to have some such engagement; and if they do, it is most likely to occur at a time when the proposal is "sufficiently crystallised" and at a formative stage since that is when it is most likely to be useful. On Liberty's case that would mean they become automatically obliged to apply the Gunning principles and consult a fairly chosen group. Underhill LJ concluded that "seems to me wholly inconsistent with the law as it has developed in this field".

The Court of Appeal concluded that the Government's engagement with policing bodies in December 2022 did not have the character of a formal consultation requiring compliance with common law principles of procedural fairness. The court noted that this was not a process seeking views from a range of affected parties for and against a proposal, with the implication being that such a process may well constitute a formal consultation. Here the purpose was to obtain the input of other public bodies with responsibility in the field, and the court described it as an "essentially intra-governmental" process. This engagement was necessary and sensible, but was of a wholly different character from a formal consultation.

As an aside, in response to the SoS questioning whether the test should be one of fairness or rationality, Underhill LJ commented that as a matter of ordinary public law principles, he did not see why a decision-maker who is obliged to conduct a consultation, or who has voluntarily undertaken to do so, should not be under a duty to act both fairly and rationally when choosing whom to consult. In many or most cases, a choice which is unfair is likely also to be irrational.

Comment

This judgment is the latest in a string of cases on the issue of what constitutes a formal consultation that needs to be carried out fairly and in accordance with the Gunning criteria. It appears to be an even further narrowing of those circumstances. Although the court commented on the need to consider the purpose and character of a process, it did not give much guidance on what sorts of processes would constitute a formal consultation. The decision therefore underscores the need for public authorities to clearly articulate the scope and purpose of any process seeking views from specific groups.

It is worth noting however that the majority of consultations are clearly identified as such, and this line of case law does not diminish the requirements to which formal consultations are subject, or the importance of stakeholders participating fully and raising concerns where processes appear to be inadequate.

Outside the consultation ground, this case is a welcome reinforcement from the Court of Appeal of the limits to Executive power, and the importance of established approaches to interpretation such as taking a narrow approach to Henry VIII clauses.