Introduction

The case of Secretary of State for Work and Pensions v Eveleigh & Ors (Rev1) ([2023] EWCA Civ 810) represents a significant judicial examination of the obligations tied to governmental consultations under common law. The appeal focused on whether the Secretary of State's use of the UK Disability Survey ("the Survey") in developing the National Disability Strategy ("the Strategy") constituted a legally binding consultation, thereby subjecting the Secretary of State to procedural obligations under established precedents.

The core parties involved were the Secretary of State for Work and Pensions, represented by Sir James Eadie KC and colleagues, and the respondents, Eveleigh and others, who challenged the legitimacy of the Strategy based on perceived deficiencies in the consultation process.

Summary of the Judgment

Initially, Griffiths J ruled in favor of the claimants, asserting that the Survey constituted a 'consultation' at common law and that the Secretary of State had breached obligations under the Gunning criteria by conducting an inadequate consultation. However, upon appeal, the England and Wales Court of Appeal overturned this decision. The appellate court held that the Survey did not meet the substance required to be classified as a consultation under the Gunning/Moseley principles, primarily because the Strategy was in a formative stage without concrete proposals to inform meaningful consultation.

Consequently, the Court of Appeal concluded that the Judge erred in his interpretation and application of the law, thereby declaring the Strategy lawful. The appeal was allowed on the first ground, dismissing the Secretary of State's breaches of consultation obligations, and refused permission on a second, undeveloped ground.

Analysis

Precedents Cited

The judgment extensively referenced three pivotal cases:

• R v Brent London Borough Council ex p Gunning (1985): Established fundamental criteria for lawful consultations, emphasizing the need for proposals to be at a formative stage, adequately reasoned, allowing sufficient response time, and conscientiously considering feedback.
• R v North East Devon Health Authority ex p Coughlan [2001]: Reinforced the Gunning criteria, particularly focusing on the nature of consultation and the necessity for public authorities to act fairly when lacking statutory consultation obligations.
• R (Moseley) v Haringey London Borough Council [2014] UKSC 56: Affirmed that the principles from Gunning and Coughlan apply even in voluntary consultations, thereby creating binding expectations for fairness and adequacy in governmental engagements.

These cases collectively underscore the judiciary's inclination to ensure that consultations, whether statutory or voluntary, adhere to standards that facilitate meaningful public participation and informed decision-making.

Legal Reasoning

The appellate court focused on discerning the substance over the form of the Secretary of State's actions. The pivotal question was whether the Survey was genuinely a consultation as defined by Gunning and Moseley cases or merely an information-gathering exercise.

Lord Justice Bean emphasized that the Gunning criteria are predicated on the existence of a specific, formative proposal that would significantly affect the rights or interests of individuals or groups. In this case, the Strategy was overarching and non-specific, lacking concrete proposals at the time of the Survey. Without such specificity, the obligations under Gunning and related cases do not automatically materialize.

Furthermore, the court highlighted that the design and intent of the Survey were more aligned with accumulating insights to inform a future policy framework rather than influencing a specific, detailed proposition. This distinction was crucial in determining that the Gunning criteria did not apply, thereby nullifying the argument that the Secretary of State had breached consultation obligations.

Impact

This judgment has far-reaching implications for governmental policy development and public consultations. By clarifying that not all forms of engagement equate to legally binding consultations, the court delineates clearer boundaries for public authorities in their consultation processes. Specifically:

• Policy Flexibility: Government bodies retain greater flexibility in designing broad-based surveys and engagement initiatives without the stringent constraints of legal consultation requirements.
• Clarification of Obligations: The decision provides a nuanced understanding of when consultation obligations arise, thereby guiding future challenges and defenses related to governmental engagements.
• Judicial Restraint: Reinforces the principle that courts are cautious in expanding legal obligations, especially in realms involving broad policy frameworks where complete specificity is unattainable during initial consultation phases.

Moreover, this ruling may influence how public consultations are framed and executed, encouraging authorities to ensure that if they intend to invoke consultation obligations, they must embody the necessary substance and specificity to meet established legal standards.

Complex Concepts Simplified

Conclusion

The appellate decision in Secretary of State for Work and Pensions v Eveleigh & Ors reinforces the importance of substantiating the nature of public engagements. While public consultations are pivotal for democratic participation and informed policymaking, this case delineates the boundaries within which such consultations operate legally. The ruling underscores that not all governmental engagements qualify as consultations warranting legal obligations under common law.

For policymakers and public authorities, the judgment serves as a reminder to meticulously design consultation processes, ensuring they meet legal standards when required. Simultaneously, it provides clarity that broad, formative policy surveys may not inherently impose legal consultation duties unless they embody specific, actionable proposals capable of influencing defined outcomes.

Ultimately, this case contributes to the evolving jurisprudence on public consultations, balancing the necessity for government accountability and responsiveness with the pragmaticities of policy development.