Anti-protest regulations were unlawful because the consultation was one-sided: Closing a Gunning loophole?

This is Blog no 70

Almost exactly ten years ago, next week, counsel for two single mothers adversely affected by a proposed new scheme for Housing benefit rose to argue their case against the London Borough of Haringey before five distinguished members of the Supreme Court. Their case had been rejected in the High Court and then by the Court of Appeal. 

But the Supreme Court judgment handed down that October became the most important ruling on the lawfulness of public consultations in the UK. R (ex parte Moseley) v London Borough of Haringey has become the most quoted and most relied upon precedent on consultation law ever since. 

There are many reasons for this, but primarily it is because this gave authoritative endorsement to The Gunning Principles, whose formulation dated from 1985, and which had already become routinely used as criteria by which to assess compliance with common law concepts of fairness.

But they were never wholly comprehensive. Sir Stephen Sedley, who initially proposed them never sought to promote them as the last word on the subject; he always accepted that they were just a conceptual framework. Before the Moseley  judgment, there had been about 150 significant judicial reviews where the Courts had carefully refined, extended, and interpreted the Principles when seeking to apply them to so many different circumstances.

At The Consultation Institute, we always felt there was an important omission. It seemed to us that a consultation could be at a formative stage (Gunning One), provided consultees with enough information to enable intelligent consideration (Gunning Two), allowed sufficient time (Gunning Three) and been conscientiously considered (Gunning Four), and still be conspicuously unfair. We argued (e.g., in The Politics of Consultation) that there was a need for a fifth Gunning Principle. This would be that to be lawful, a consultation must seek the views of key stakeholders – or those most likely to be impacted by its proposals.

There were occasional judicial nods in this direction. When another London Borough sought to make changes to Landlord action areas, an out-of-area consultee won his case because the Council had not consulted him. In the 2017 ‘Help Refugees’ case, claimants sought to argue that some Councils had been successfully engaged in a consultation but others, due to no fault of their own, had not been consulted. They failed to persuade the Judge (though the case was won on appeal by the claimants but on other grounds), and in general, the Courts supported the view that consultors could use their discretion just to consult whoever they wished. Things began to change in 2020. At the time of the first COVID-19 lockdown, the Education Secretary approved a significant loosening of the processes for child adoption, but failed to consult the Children’s Commissioner. This was declared unlawful in the Article 39 case, and there have been rather more positive references to the need to consult the right people in the last few years. Frankly, though, our push for a ‘Gunning Five’ has not been a notable success!  Until now.

Largely overlooked because the PM called a General Election just as the judgment emerged, the case of R (National Council for Civil Liberties) v Home Secretary takes us a lot further.

This is what happened. When Suella Braverman was Home Secretary, the Government tried to toughen up the law on demonstrations and protests by giving the police more powers to intervene. New powers were inserted in the Public Order Bill, then going through Parliament, but these were defeated. It then decided to use secondary legislation to achieve the same outcome, but the High Court has decided that primary legislation did not give it the authority to make such changes to the law. This was a major victory for LIBERTY (by which the NCCL is now better known) and campaigners from the Public Law Project who argued against a major infringement of the rights to protest – promulgated by Regulation rather than primary legislation.

However, the Government also lost on other grounds – namely that the consultation was ‘one-sided and not fairly carried out.’  When the Regulations were laid before Parliament, as is customary, they were accompanied by an Explanatory Memorandum which stated that:-

       “The National Police Chiefs National Council, the Metropolitan Police Service, the Police and Crime    

        Commissioners of the police forces whose areas include the M25 and National Highways were consulted

        as to how to improve the response to highly disruptive protests …”

Government lawyers tried to argue that in this context, the word ‘consultation’ meant ‘targeted engagement’ and no doubt hoped that, following the Eveleigh case  where the use of the term was ruled not to be determinative, the Gunning principles might not apply. The Court disagreed. They DID apply.

What was unfair was for the Home Office to have conducted a one-sided exercise – listening only to the police and organisations inconvenienced by some of the recent protests. LIBERTY argued that this was a massive extension of police powers to interfere with citizens’ right to protest – a truly totemic feature of our democracy – with significant legal, practical, procedural, and human rights implications. Ministers claimed that prosecutions would  increase by a third, and the judgment concludes that:

       “At an elementary level of fairness, if the views of enforcement agencies are sought and obtained, then

        the views of those negatively affected by enforcement should equally be canvassed.”

This is a hugely important and impressive judgment from two highly experienced members of the Judiciary (Lord Justice Green, who conducted the giant Tobacco Manufacturers challenge to health-related warnings on cigarette packets, and Mr Justice Kerr who has handled many consultation cases – often disappointed consultee claimants!). They point out that this judgment may be of limited application to other cases in respect of whether there is always a duty to consult in such circumstances. On the question of who needs to be consulted, however, I believe the case sets a clear precedent which Courts will need to follow.                   Those affected by proposals must be consulted. Period.

Finally, an election postscript.

It seems that Home Office lawyers have lodged an Appeal. One wonders whether this is in the spirit of the period of ‘political sensitivity’. Labour opposed these changes and in the event of winning the forthcoming General Election, would it be right for an incoming Home Secretary to seek to defend a Government department’s clear breach of fairness by undertaking a ‘one-sided’ and unfair consultation? I think not.

Rhion H Jones LL.B

Commentaries are prepared primarily to help consultation practitioners take account of developments in the law and to guide them on situations where legal advice should be sought. They are no substitute for reading Court judgments or studying statutory provisions or associated Guidance.

Rhion has monitored and written commentaries on the Law of Consultation since 2007 but does not provide legal advice. He will, however, be happy to discuss the content of this or any other commentary.

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