Introduction

The case of MP, R (On the Application Of) v. Secretary of State for Health and Social Care ([2018] EWHC 3392 (Admin)) was adjudicated in the England and Wales High Court (Administrative Court) on December 10, 2018. The claimant, a 58-year-old gentleman suffering from blood cancer, challenged the legality of the National Health Service (Charges to Overseas Visitors) Amendment Regulations 2017 ("the 2017 Regulations"). The primary contention was that the amendments, which included requiring advance payment for certain NHS services and mandating NHS trusts to record the chargeable status of overseas visitors, were made without proper public consultation and violated statutory equality duties.

Summary of the Judgment

The High Court dismissed the claimant's application for judicial review, ruling that the Secretary of State for Health and Social Care was not legally required to conduct public consultations on the specific regulatory changes in question. The court found no sufficiently settled and uniform practice that would give rise to a legitimate expectation for such consultations. Additionally, the court determined that the defendant had adequately fulfilled his statutory duties under the Equality Act 2010 and the National Health Service Act 2006, ensuring that the 2017 Regulations were compliant with existing equality and fairness mandates.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents to assess the legitimacy of the claimant's arguments:

• R v Lancashire County Council ex p. Huddleston [1986] 2 All E.R. 941: Established the duty of candour, obliging public authorities to provide sufficient information for courts to assess legal challenges.
• R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755: Discussed the necessity of a "sufficiently settled and uniform practice" for establishing a legitimate expectation of consultation.
• R (Davies) v HM Revenue & Customs [2011] 1 WLR 2625: Emphasized the need for evidence demonstrating an unambiguous and widespread consultation practice to support legitimate expectations.
• R (Brooke Energy Limited) v Secretary of State for Business, Energy and Industrial Strategy [2018] EWHC 2012 (Admin): Highlighted the criteria for determining whether a past practice elevates to a legitimate expectation warranting procedural adherence.
• R (BAPIO) v Secretary of State for the Home Department [2007] EWCA Civ 1139: Clarified that practices must be consistent and more than occasional to establish legitimate expectations.

These precedents collectively informed the court's evaluation of whether the defendant's actions created an enforceable expectation for comprehensive public consultations on all regulatory amendments.

Legal Reasoning

The court meticulously analyzed whether a legitimate expectation for public consultation existed based on previous practices. The key points in the legal reasoning included:

• Absence of a Uniform Consultation Practice: Prior to the 2017 Regulations, amendments to NHS charging regulations were occasionally made without public consultation. The first public consultation occurred in 2003, followed by selective consultations in subsequent years. This sporadic approach did not establish a consistently uniform practice that would give rise to an unavoidable expectation of consultation on all future amendments.
• Distinct Regulatory Changes: The two amendments in question—advance payment requirements and recording chargeable status—were discrete and not intrinsically linked to the changes that were subject to prior consultations. The court found that the lack of consultation on these specific amendments did not breach any established procedural requirements.
• Compliance with Equality Duties: The court examined whether the defendant had duly considered the equality implications of the regulations. Evidence showed that detailed equality analyses were conducted, addressing potential impacts on vulnerable groups, including those with protected characteristics under the Equality Act 2010.

Ultimately, the court concluded that without an unequivocal, settled, and uniform practice of consultation, the claimant could not uphold his argument for a legitimate expectation necessitating comprehensive public consultations on all regulatory changes.

Impact

This judgment has significant implications for administrative law and public authority procedures:

• Clarification of Consultation Obligations: Public authorities are not compelled to conduct public consultations on every regulatory amendment unless there exists a long-established and uniform practice that establishes a legitimate expectation.
• Streamlining Regulatory Amendments: The decision may enable more efficient implementation of regulatory changes by reducing procedural bottlenecks, provided that they do not fundamentally disadvantage affected individuals without due process.
• Reaffirmation of Equality Duties: The court's affirmation that statutory equality duties were met underscores the importance of thorough impact assessments and justified reasoning in the legislative process.

Complex Concepts Simplified

• Judicial Review: A legal process where courts oversee the legality of decisions made by public bodies, ensuring they comply with the law.
• Legitimate Expectation: A principle where individuals can expect a certain degree of fairness or procedure from public authorities based on past practices or assurances.
• Public Sector Equality Duty: Under the Equality Act 2010, public authorities must consider how their decisions affect people with protected characteristics and strive to eliminate discrimination.
• Advance Payment Requirement: A regulatory stipulation mandating that charges for certain services be paid before the service is rendered.

Conclusion

The High Court's decision in MP, R (On the Application Of) v. Secretary of State for Health and Social Care serves as a pivotal reference point in administrative law, particularly concerning the obligations of public authorities to conduct consultations. By affirming that a uniform and unambiguous practice of consultation is necessary to establish a legitimate expectation, the judgment delineates the boundaries within which public bodies must operate. Furthermore, the affirmation that the defendant had adequately fulfilled statutory equality duties reinforces the critical role of thorough impact assessments in policy formulation. This case underscores the balance courts maintain between procedural fairness and the operational flexibility of public authorities, ensuring that while due process is preserved, it does not unduly hinder administrative efficiency.