British Medical Association, R (on the application of) v General Medical Council

A public authority will generally be free to change a policy without consultation where there has been no promise or established practice of consultation. A secondary procedural legitimate expectation arises only exceptionally. The past conduct must have created a pressing and focused impact, giving an individual or group substantial grounds to expect that a benefit will continue for a reasonable period.

Consultation was not required where the authority reasonably concluded that an age-based fee exemption was unlawful, had no identified lawful justification, and needed to act promptly to cure the illegality. The absence of consultation was not conspicuously unfair or an abuse of power.

The British Medical Association sought permission to apply for judicial review of the General Medical Council’s decision to abolish an exemption from annual retention fees for registered doctors aged 65 or over.

The GMC had concluded, following leading counsel’s advice, that the exemption was unlawful age discrimination under the Employment Equality (Age) Regulations 2006. It had given advance notice to representative bodies and affected doctors but had not conducted a formal consultation.

The central issues were whether registered doctors had a legitimate expectation of consultation, whether the decision was conspicuously unfair or irrational, and whether further disclosure should be ordered.

1. Application dismissed. Permission to apply for judicial review was granted, but the substantive application was dismissed. Interim relief was discharged. The claimant was ordered to pay the defendant’s costs, to be assessed if not agreed.
2. The GMC had reasonably concluded that the age exemption constituted direct age discrimination under regulation 3 of the Employment Equality (Age) Regulations 2006. The exemption treated doctors below 65 less favourably than those aged 65 or over. Regulation 27 did not assist because the fee regulations were made by the GMC, not by a Minister of the Crown. No legitimate aim proportionately served by the exemption had been identified.
3. The principles concerning secondary procedural legitimate expectation, explained by Laws LJ in Niazi and others v Secretary of State for the Home Department and Bhatt Murphy (a firm) and others v The Independent Assessor [2008] EWCA Civ 755, applied. Such an expectation arises only exceptionally, where the authority’s past conduct has had a pressing and focused impact and affected persons have substantial grounds to expect continuation of the benefit for a reasonable period.
4. The circumstances did not meet that high threshold. There had been no promise or established practice of consultation; the GMC had not consulted when changing other fee exemptions or increasing fees; it had reasonably considered itself obliged to act promptly to cure an unlawful arrangement; and consultation of approximately 231,000 doctors would have been cumbersome and delayed compliance. The affected organisations and doctors had nevertheless been notified and given an opportunity to raise concerns.
5. The abolition of the exemption did not finally determine whether a different, lawful fee concession based on length of service or another criterion might be introduced. That possibility remained open. The decision was neither conspicuously unfair nor irrational.
6. The application for further disclosure was refused. The material already supplied was sufficient for the issues raised, and further background material was not necessary.
7. The claim had technically not been brought promptly, but time was enlarged. The court refused permission to appeal.

This was a first-instance judicial review claim in the Administrative Court. His Honour Judge Waksman QC had stayed implementation of the GMC’s decision pending determination of the proceedings. The stay was discharged and the claim dismissed.