MP, R (On the Application Of) v Secretary of State for Health And Social Care

A public body which voluntarily consults must consult properly on the proposals it has chosen to put forward. That obligation does not ordinarily require consultation on separate, self-contained proposals in the same field. Fairness alone is not a freestanding source of a duty to consult.

A procedural legitimate expectation requires the same fundamental assurance as a substantive expectation. An express assurance must be clear, unambiguous and devoid of relevant qualification. A past practice must be sufficiently consistent to amount to an implied assurance, in those terms, that the practice will continue. A practice need not be entirely unbroken, but a mixed history of consulting on some changes and not others will not ordinarily suffice.

The appellant challenged provisions introduced by the National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017. The provisions required advance payment for chargeable NHS treatment, subject to exceptions for immediately necessary and urgent services, and required certain NHS bodies to record a patient's chargeable overseas-visitor status.

The Government had consulted in 2015 on extending charging to additional NHS services, but the disputed requirements were developed after that consultation. Lewis J dismissed the judicial review claim in [2018] EWHC 3392 (Admin).

The appeal raised whether proper conduct of the voluntary consultation required consultation on the later proposals; whether previous consultation practice created a legitimate expectation of consultation; and, if unlawfulness were established, whether relief should be granted.

1. The appeal was dismissed unanimously. The Secretary of State was under no duty to consult on the advance-payment and record-keeping requirements. Newey LJ delivered the judgment, with which Moylan and McCombe LJJ agreed.

2. Once a public body undertakes consultation, it must conduct that consultation properly. It must consult while its proposals remain formative, provide sufficient reasons for an intelligent response, allow adequate time, and conscientiously consider the product of consultation. New information or a different proposal may require disclosure where it materially affects the proposal under consultation. The obligation nevertheless remains directed to the proposals on which the body chose to consult.

3. A public body need not ordinarily disclose, still less consult upon, every other proposal in the same field. A failure to disclose a plan which significantly affects the consulted proposal may invalidate implementation of the consulted proposal. It does not, without more, invalidate the separate plan. The position may differ where the later measure is a variant or development of a proposal already under consultation.

4. Fairness is relevant to whether proper consultation requires disclosure of a different proposal, but it is not a freestanding source of a duty to consult. Such a duty principally arises from statute, a promise, an established practice or, exceptionally, where non-consultation would cause conspicuous unfairness. The disputed requirements were discrete and self-contained. They were neither variants nor developments of the 2015 proposals. The advance-payment requirement concerned the timing of an existing liability and reflected earlier guidance; record-keeping imposed no new financial liability.

5. The fundamental requirements of procedural and substantive legitimate expectation are the same. An express promise, representation or assurance must be clear, unambiguous and devoid of relevant qualification. A practice can found an expectation only if it is tantamount to such an assurance. Although it need not be wholly unbroken, it must clearly and unambiguously imply, without relevant qualification, that it will continue.

6. The judge applied the correct test and was entitled to find no settled and uniform practice. The history included consultations on some proposed amendments, amendments made without consultation, and additional changes introduced alongside consultations without themselves having been consulted upon. That mixed history did not create a legitimate expectation. As no unlawfulness was established, it was unnecessary to decide whether relief should be withheld under section 31(2A) of the Senior Courts Act 1981.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 1634, the court unanimously dismissed the appeal and affirmed that the Secretary of State had no duty to consult on the disputed requirements.

2. High Court, Administrative Court: Lewis J dismissed the judicial review claim in [2018] EWHC 3392 (Admin), finding neither an obligation arising from the consultation undertaken nor a legitimate expectation founded on past practice.