Secretary of State for Work and Pensions v Eveleigh & Ors

The Gunning requirements apply only where a public authority proposes a sufficiently specific decision which is likely to affect a person or defined group directly, usually adversely. The proposal must remain open to influence, but must also have crystallised enough for the authority to explain the proposed decision and its reasons so that consultees can respond intelligently.

An exercise which gathers experiences and views to inform an inchoate, high-level policy does not acquire those legal consequences merely because it is called a consultation or because the resulting policy will be informed by the responses. Whether the Gunning requirements apply to a voluntary consultation concerning a decision otherwise capable of consultation remains open.

The Secretary of State appealed against Griffiths J’s decision, [2022] EWHC 105 (Admin), allowing judicial review of the National Disability Strategy. Before publishing the Strategy, the Disability Unit conducted a public survey about disabled people’s experiences, priorities and suggested improvements.

The Judge held that the Survey was, in substance, a voluntary consultation governed by the common law Gunning requirements. Because respondents had not been given sufficient information about proposed policies, he declared the Strategy unlawful and quashed it.

The principal issue was whether the Survey had the characteristics necessary to attract the Gunning requirements. A proposed additional ground raised the separate question whether those requirements apply to voluntary consultations.

1. Appeal allowed on ground 1. The Survey was an information-gathering exercise, not a consultation to which the Gunning requirements could apply. The Judge therefore erred in declaring the Strategy unlawful and quashing it: per Elisabeth Laing LJ, with whom Bean and Macur LJJ agreed.

2. The word “consultation” has several ordinary meanings. Its use by officials, and the Survey’s location on a “Consultation Hub”, could not itself create legal consequences. Whether public engagement attracts legal obligations depends on its substance rather than its form: paras 81–82.

3. The Gunning requirements presuppose a proposed specific decision which is likely to affect a person or defined group directly and usually adversely. The proposal must be sufficiently formative for consultees’ views to influence it. It must nevertheless have crystallised sufficiently for the authority to identify the possible decision and explain its reasons in enough detail to permit an intelligent response. Depending on the circumstances, information about arguable discarded alternatives may also be required: paras 83–85 and 95.

4. The Strategy was an inchoate plan comprising high-level policy commitments. At the time of the Survey, there was no concrete proposal or draft Strategy upon which respondents could comment. Statements that responses would “inform” or “shape” the Strategy confirmed that experiences and views were being gathered to help formulate its future content. They did not convert the exercise into a Gunning consultation: paras 86–90.

5. The respondents could not be given details of proposed policies because none then existed. The Survey’s free-text questions allowed respondents to identify desired changes, overlooked barriers and possible solutions. Judicial review did not require the court to assess the quality or sophistication of a general survey once the Gunning requirements were inapplicable: paras 87–88 and 96.

6. Permission to appeal on proposed ground 2 refused. Whether the Gunning requirements apply to a voluntary consultation did not arise for decision. The statement in Coughlan that a consultation, once undertaken, must be conducted properly had not been the subject of argument or reasoned decision and was not binding on that issue. Its correctness was left open: paras 91–98.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 810, the court allowed the Secretary of State’s appeal on ground 1 and refused permission to appeal on proposed ground 2. The declaration of unlawfulness and quashing of the Strategy could not stand.

2. High Court, Administrative Court: Griffiths J allowed the judicial review in [2022] EWHC 105 (Admin). He held that the Survey was a voluntary consultation subject to the common law requirements of fair consultation, that the second Gunning requirement had been breached, and that the Strategy was unlawful.