Associated Society of Locomotive Engineers and Firemen & Ors, R v The Secretary of State for Business and Trade

A statutory duty to consult requires a meaningful and fair consultation interpreted in its statutory context. Consultation must occur before the decision is made, while the proposal remains open to reconsideration, and the decision-maker must conscientiously consider the responses. Where an earlier consultation is relied on after a substantial lapse of time, particularly after the proposal was abandoned and circumstances have materially changed, fairness may require updated consultation. The court determines whether the process was so unfair as to be unlawful. It should proceed cautiously, but need not defer to the decision-maker’s view of what fairness requires. A decision taken without informed consideration of the earlier responses, and without further consultation despite material intervening developments, breached the statutory duty. Relief must not be refused under section 31(2A) of the Senior Courts Act 1981 unless it is highly likely that the outcome would not have been substantially different.

Thirteen trade unions challenged the Secretary of State’s decision to make the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022. The Regulations revoked regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003, which had restricted employment businesses from supplying workers to perform duties normally carried out by workers taking part in official industrial action.

The Secretary of State relied on a public consultation conducted in 2015 and decided in June 2022 to proceed without further consultation. The claimants alleged breach of the statutory duty to consult under section 12(2) of the Employment Agencies Act 1973 and breach of Article 11 of the European Convention on Human Rights. The court determined Ground 1 and declined to express a view on Ground 2 because the Regulations were quashed and the Article 11 issue would otherwise be hypothetical or potentially overtaken by further consultation.

1. Ground 1 succeeded. The 2022 Regulations were quashed. The Secretary of State had to comply with section 12(2) of the Employment Agencies Act 1973 before making regulations. The provision required consultation with representative bodies and incorporated the basic Gunning requirements of meaningful consultation.
2. Consultation had to take place before the decision to implement the proposal. The relevant decision was made on 13 June 2022. The evidence did not establish that the Secretary of State had conscientiously considered the responses to the 2015 consultation. He had received only a limited summary and had not requested the fuller analysis offered to him.
3. The Secretary of State’s decision not to consult further was independently unlawful. The consultation had occurred nearly seven years earlier, the proposal had previously been abandoned, the Trade Union Act 2016 had altered the industrial relations framework, and there had been significant developments affecting the labour market, recruitment sector and international and devolved-law context. The Government’s evidential case in 2022 also differed materially from that advanced in 2015 and had not been tested through consultation.
4. The correct question was whether the approach was so unfair as to be unlawful, having regard to the statutory purpose. The court should exercise caution because public bodies must be able to make decisions without endless consultation. That caution did not justify deference or an irrationality-only test in a case involving a statutory duty to consult.
5. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of relief. The Secretary of State had not shown that, in the counterfactual world of a lawful consultation conducted with an open mind and conscientious consideration, it was highly likely that the outcome would not have been substantially different. Ground 2 was not decided.

First-instance judicial review in the Administrative Court. The court quashed the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 on Ground 1 and declined to determine Ground 2.