Article 39, R (On the Application Of) v Secretary of State for Education (Rev 1)

Once a public authority embarks on consultation, it must conduct the process properly and fairly, even if consultation was not initially required. When proposed regulations substantially affect vulnerable children in care, a consultation confined to service providers may be irrational and conspicuously unfair. Those representing the affected children, particularly the Children’s Commissioner, must be included where a rapid and informal consultation remains practicable.

An emergency may affect the form and timescale of consultation. It does not justify excluding a central statutory representative while consulting other stakeholders through the same readily available process.

The Secretary of State introduced the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 during the Covid-19 pandemic. They temporarily relaxed safeguards across ten statutory instruments governing children’s social care. The Department informally consulted local authorities, regulators and service providers, but did not consult the Children’s Commissioner or organisations representing children’s rights before finalising the changes.

Article 39 sought judicial review on several grounds. Lieven J dismissed the claim, holding that the emergency justified the limited consultation. The charity appealed only on consultation. The central question was whether excluding the Children’s Commissioner and other children’s rights bodies made the consultation unlawful.

1. Appeal allowed. The Secretary of State acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing the rights of children in care before introducing the Adoption and Children (Coronavirus) (Amendment) Regulations 2020.

2. The pandemic created an urgent and difficult problem, but it did not preclude a short informal consultation. The Department had chosen to consult local authorities and service providers over several weeks. Once consultation was undertaken, it had to be proper and fair. The proposed amendments were substantial, wide-ranging and capable of materially altering the services and safeguards available to vulnerable children.

3. The duty to include children’s representatives arose in three ways. First, for regulations made under the Care Standards Act 2000, section 22(9) required consultation with persons whom the Secretary of State considered appropriate. In the circumstances, excluding the Children’s Commissioner and children’s rights bodies was irrational. Secondly, there was an established practice of consulting such bodies about substantive regulatory changes. Thirdly, their exclusion was conspicuously unfair.

4. Children in care were the persons most directly affected and were particularly vulnerable. The Children’s Commissioner and specialist organisations were better equipped than service providers to identify the effect of the proposals upon their rights and interests. The Commissioner’s functions under the Children Act 2004, including considering the effect of proposed legislation and having particular regard to children receiving social care, strengthened the reasons for her inclusion.

5. The observations in R (Christian Concern) v Secretary of State for Health and Social Care [2020] EWHC 1546 (Admin) about an emergency overriding a legitimate expectation were of little relevance because the Secretary of State had in fact consulted. The Commissioner could have been consulted by the same rapid email process.

6. The Court granted a declaration of unlawful failure to consult. It declined to declare the Regulations ultra vires or quash them because neither party sought that relief, the flexibilities had rarely been used, their practical effects were unknown, they had expired, and replacement regulations had followed a proper consultation.

1. Court of Appeal (Civil Division): The appeal was allowed in [2020] EWCA Civ 1577. The Court declared that the Secretary of State had acted unlawfully by failing to consult the Children’s Commissioner and other bodies representing children’s rights.
2. Administrative Court: Lieven J dismissed the judicial review claim. She held that the emergency circumstances justified the consultation being confined to service providers, although the amendments were substantial and the Commissioner could have been consulted.