Greenpeace Ltd., R (on the application of) v Secretary of State for Trade and Industry

A public authority which promises consultation must honour that promise unless it has good reason to depart from it. Consultation must be fair in the circumstances. Consultees must understand the proposal and why it is under consideration, receive enough information to respond intelligently, have adequate time, and have their responses conscientiously considered.

A consultation presented as preliminary issue-scoping cannot ordinarily support a substantive policy decision where the public was promised the fullest consultation before that decision. If significant material emerges after an information-poor consultation, fairness may require a further opportunity to comment. Responses from well-informed consultees do not cure unfairness to the wider public where the consultation was addressed to everyone.

The claimant sought judicial review of the Government's decision in the 2006 Energy Review that nuclear new build should have a role in the United Kingdom's future electricity-generating mix. The 2003 Energy White Paper had promised the fullest public consultation before any decision to proceed with new nuclear power stations.

The claimant contended that the 2006 consultation appeared to be a preliminary issues paper rather than consultation on whether nuclear new build should be supported. Alternatively, it supplied insufficient and misleading information, particularly about economics and nuclear waste. Much of the substantive evidence relied upon by the Government appeared only after the consultation period had closed.

The central issue was whether the consultation fulfilled the promised standard and was procedurally fair.

1. The claim succeeded and declaratory relief was appropriate. The consultation process was procedurally unfair and breached the claimant's legitimate expectation of the fullest public consultation. The resulting policy decision that nuclear new build had a role in the future generating mix was unlawful.

2. A public authority's promise about how it will act must be honoured unless there is good reason to depart from it. The Government had expressly promised the fullest public consultation before supporting new nuclear build and advanced no good reason for failing to honour that promise. The applicable consultation requirements in Coughlan were therefore engaged.

3. The 2006 Consultation Document, read as a whole and with the public summary, appeared to be an issues paper. It sought views about matters which the Government should examine, stated that policy proposals were not yet being advanced, and did not clearly ask whether nuclear new build should now be supported. The substantive policy outcome was consequently not reasonably foreseeable to an interested person who took the documents at face value.

4. The responses of organisations which anticipated the possible outcome did not cure the defect. The promise extended to the adult population generally. The court could not know who might have responded, or how responses might have differed, had the substantive question and the finality of the opportunity been made clear.

5. If treated as the substantive consultation paper, the document was manifestly inadequate. It provided no information of substance about the economics of new nuclear build or the disposal of nuclear waste, although those were the two critical obstacles identified in the 2003 White Paper. Its description of the waste committee's position was also seriously misleading because it omitted significant qualifications concerning the political, ethical and practical implications of new nuclear waste.

6. Fairness may require an opportunity to address significant material emerging after consultation. Here, the Government relied upon a substantial cost-benefit evidence base and the waste committee's recommendations after consultees had received little substantive information. Elementary fairness required a proper opportunity to respond before the in-principle decision was made.

7. Although strategic policy-making allows the decision-maker broad procedural discretion, a consultation becomes unlawful where its defects are sufficiently serious that something has gone clearly and radically wrong. That threshold was met. The proper remedy for a policy document of this kind was a declaration rather than a quashing order.