Robin Murray & Co, R (on the application of) v The Lord Chancellor

Where a public authority undertakes consultation without an express statutory obligation, the consultation must nevertheless be fair. It must occur while proposals remain formative, provide sufficient reasons for intelligent consideration and response, allow adequate time, and involve conscientious consideration of the responses. Fairness does not generally require disclosure of internal advice, emerging assessment criteria, or all material relied upon, unless exceptional circumstances make further disclosure necessary. A consultation is unlawful for unfairness only where something has gone clearly and radically wrong. A public authority’s assessment under section 49A of the Disability Discrimination Act 1995 is reviewable on conventional public-law grounds, including Wednesbury unreasonableness.

The claimant firm sought judicial review of the Lord Chancellor’s decision to close Sittingbourne Magistrates’ Court following a national review of court buildings. The challenge concerned the adequacy and fairness of the consultation, including the alleged failure to disclose assessment criteria and two surveys, and the relevance of a national survey to local circumstances.

The claimant also argued that the assessment of disabled facilities at Sittingbourne and Medway was irrational and failed to comply with the duty under section 49A of the Disability Discrimination Act 1995. The claim was heard as a rolled-up application for permission and, if granted, determination on the merits.

1. Permission and outcome. Permission was granted, but the application for judicial review was dismissed. The Lord Chancellor’s decision to close Sittingbourne Magistrates’ Court was lawful.
2. Consultation. Although there was no express statutory duty to consult under the Courts Act 2003, undertaking consultation created a duty to conduct it fairly. The applicable requirements were that consultation occur at a formative stage, provide sufficient reasons for intelligent consideration and response, allow adequate time, and involve conscientious consideration of the responses. The precise content of fairness depends on the circumstances. A consultation is unlawful only where something has gone clearly and radically wrong.
3. The Lord Chancellor was not required to disclose the regional benchmarking factors developed during the consultation. Those factors emerged from the internal consideration of consultation responses and did not represent a fundamentally different proposal. There is generally no obligation to circulate internal advice, information, or material to consultees. Exceptional further consultation may be required where the emerging material produces a fundamentally different proposal, fairness otherwise demands it, or it undermines the value of the responses.
4. The local and national surveys did not require prior disclosure. Neither changed the Lord Chancellor’s thinking or undermined the responses. The national survey was relevant to the general closure programme, and its weight was for the Lord Chancellor to assess. The impact assessments and response document showed that local deprivation and increased travel times had been taken into account.
5. Disability duty. The duty under section 49A of the Disability Discrimination Act 1995 required due regard to the need to eliminate discrimination and promote equality of opportunity. It did not require a particular substantive outcome or consultation with disabled users or representative groups. The weight given to relevant factors was reviewable only on conventional public-law grounds, including Wednesbury unreasonableness.
6. On the evidence, including the additional assessment of the court buildings and the Equality Impact Assessment, the conclusion that Medway’s disabled facilities were preferable was not irrational and did not disregard relevant considerations or breach section 49A.

First-instance judicial review proceedings. The court granted permission at the rolled-up hearing and dismissed the claim on its merits.