FDA, PCSU and Prospect, R (On the Application Of) v HM Treasury

An enforceable expectation of procedural consultation requires a clear, unambiguous and unqualified promise, assessed objectively and in context. Consultation must occur while proposals remain formative, provide sufficient reasons, allow adequate time, and have responses conscientiously considered. Positive engagement and information exchange do not become consultation merely because officials use that word or make minor drafting changes. An offer to meet after ministerial approval to discuss or explain a policy does not promise meaningful consultation. A decision-maker’s duty of sufficient inquiry is governed by rationality. Affected bodies’ views need not be obtained where departmental affordability is the decisive issue and those views are not legally relevant.

Three trade unions representing civil servants challenged the Civil Service pay remit guidance published on 25 June 2018. The guidance permitted departments to make average pay awards within a range of 1% to 1.5% without specific approval. The unions alleged that officials had promised meaningful consultation, particularly after disclosure of the range, and that the failure to consult also breached duties of sufficient inquiry and proper voluntary consultation.

Permission was granted at an expedited rolled-up hearing, which proceeded as a substantive judicial review. The central issues were whether a legitimate expectation of consultation had arisen, whether the decision-maker had irrationally failed to obtain the unions’ views, and whether the engagement process had to be conducted as formal consultation.

1. Permission to apply for judicial review was granted, but the substantive claim was dismissed. The court also granted relief from sanctions, admitting the Defendant’s late witness evidence.

2. The consultation principles in R v Brent LBC ex p. Gunning (1985) 84 LGR 168 require consultation while proposals remain formative, sufficient reasons for intelligent consideration and response, adequate time, and conscientious consideration of the product of consultation. The requirements are context-sensitive. A public body that embarks on consultation must conduct it properly: R v North and East Devon Health Authority ex p. Coughlan [2000] All ER 850 at [108].

3. An enforceable legitimate expectation requires a statement that is clear, unambiguous and devoid of relevant qualification, applying the benchmark in R v Inland Revenue Commissioners ex p. MFK Underwriting Agents Ltd [1990] 1 WLR 1545. The question is objective and depends on how the statement would reasonably have been understood on a fair reading in context, as explained in Paponette v AG of Trinidad and Tobago [2010] UKPC 32. The absence of dissent from an official during a fractious meeting did not establish such a promise. Offers to meet after the guidance had reached a late ministerial approval stage could reasonably be understood as information exchange, not Gunning consultation.

4. The process between March and June 2018 was principally an exchange of information intended to maintain industrial relations. Positive engagement, the use of the word consultation, and minor alterations to the draft guidance did not change its substance. Grounds 1 and 3 therefore failed.

5. The duty of sufficient inquiry is subject to rationality. The decision-maker chooses the manner and intensity of inquiry and need only take reasonable steps to inform himself. Intervention is justified only where no rational decision-maker could regard the inquiries as sufficient. The guidance operated as a cost-control mechanism for administrative arrangements. Since departmental affordability above fixed 1% funding dictated the range, the unions’ views were not legally relevant to setting it. Ground 2 also failed. The judicial review application was dismissed.

This was a first-instance judicial review. The claim was issued on 8 August 2018, and on 21 August 2018 Nicola Davies J ordered expedition of a rolled-up permission and substantive hearing. No appellate stage is stated in the judgment.