Are we moving towards tougher legal requirements for ‘stakeholder engagement’? TOP BLOG

Posted on 1st March, 2023


This is Blog No 17


A recent case – R (Holland Park School) v Secretary of State for Education [2022]EWHC 3159 suggests that we might…

For years, we have been explaining that one of the key distinctions between ‘consultation’ and ‘engagement’ has been that whilst ‘consultation’ brings with it the potential for the enforcement of strict legal rules – notably through the Gunning Principles, the whole arena of ‘engagement’ is a rules-free environment where anything goes.


No wonder public bodies, if given the choice, prefer the looser, less demanding form of public involvement. For years, the Department of Health and others have enthusiastically promoted the ‘engagement’ concept, safe in the knowledge that even the most inadequate activity cannot give rise to a legal challenge.


This may be about to change. We have had various obiter dicta from sympathetic Judges in the last few years. But now we have a High Court judgment which substantially turned on whether the Department of Education’s (DfE’s)‘stakeholder engagement’ was lawful. As always, the context is important.


Holland Park School was a Single Academy Trust (SAT) that experienced severe problems leading its Governing Body to accept the consensus that it needed to move into being part of a Multi-Academy Trust (MAT). This is a standard process; the DfE has elaborate Guidance which the School’s Governors initially followed. This requires ‘stakeholder engagement’, the extent of which depends upon how contentious the issue might be locally. There was then an unfavourable OFSTED Report and, in cosequence the Secretary of State took over the proposed reorganisation – again observing the Guidance.


When some parents claimed that the exercise was not fair and in breach of Gunning Principle 2 about publishing sufficient information (in this case, explaining what the various options had been, and why one was particularly favoured), it raised the whole question of whether this was, for these purposes, a ‘consultation’.


The difficulty for Mrs Justice Hill was that there have been some recent cases - including R (Binder) v Sec of State for Work and Pensions -  where the infamous ‘duck’ test has surfaced. Judges, of course, do not use this language, but in essence, if it quacks like a duck, looks like a duck and swims like a duck, it probably is a duck. And to read the DfE’s Guidance, it certainly points in this direction.

In keeping with this theme, however, we must report that the Judge actually ‘ducked’ the issue. She chose to ‘assume’ that, in the specific context of this case, the stakeholder engagement could be assessed against the Gunning Principles. This meant that she could examine the facts, as the claimants argued that key communications failed to disclose either the existence or the evaluation of competing bids to absorb or merge with Holland Park School. In the event, she decided that sufficient information was already in the public domain as to prevent the parents’ case from being seriously prejudiced.


For those who organise public consultations, it is often difficult to decide how much information to publish, and in what way. In truth, it should probably be a matter of sensible politics rather than law, but since the Supreme Court’s definitive 2014 judgment in R (Moseley) v Haringey LBC, the established position is that if the purpose of having the consultation is to encourage extensive public participation in decision-making, then enough must be disclosed to enable them to do so. But when the scope and rationale of the exercise is narrower, the requirement may be less onerous. In the Holland Park School case, the gist of the judgment is that this “was a focussed process aimed at securing input from a relatively closely defined group of stakeholders on a specific issue”, and that the claimants were, in fact, all well aware of the options and their appraisal.


We must always be cautious in the interpretation of cases like this:

  • Although the DfE won its case, it will probably be unhappy that a precedent has now been set for treating its Guidance as creating an expectation of an exercise observing the full rigours of the law of consultation.
  • This means that parents and communities with concerns about Ministerial decisions to move schools into and out of Multi-Academy trusts will be emboldened to demand a higher level of engagement – equivalent maybe to a full statutory consultation.
  • The Binder case is shortly subject to Appeal. This is where the Government, having run an extensive survey and called it a consultation, argued that it had never intended it to be a consultation, and was therefore not subject to the rules. It lost, but who knows what the Court of Appeal may decide.

Clearly one strand of judicial thinking is to seek to understand the intent and character of the engagement intended by Parliament or other authority. But the other direction of travel may be to look at the status of the requirement. Might Courts draw a distinction between ‘stakeholder engagement’ that has statutory backing – maybe in secondary legislation, and a self-selected exercise determined upon by a public body as a measure of good management? 

Looking ahead, the agenda for increasing public participation in major decisions continues to grow. Witness the difficult policy options surrounding climate-change and net zero, clean-air zones, energy generation and transmission and dozens of other contentious issues.


Knowing the necessity of carrying public opinion with them, politicians and legislatures everywhere – and bureaucrats working to their enactments – are all exhorting public bodies to engage … engage …engage.

It is only a matter of time before Courts will have to concede that those being engaged deserve to have some rights of fair treatment. What we are seeing in the Holland Park School case and others are the first hesitant steps towards stakeholder rights, comparable to consultee rights, even if different.


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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 Jones LL.B 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. NEW: Use Rhion to brief you on Consultation law


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