Mixed Messages on the Gunning Principles

This is Blog No 34

For the last ten years, the core position of the law of consultation has been relatively stable and centred around consistent application and a widespread understanding of the Gunning Principles.

Two decisions handed down by the Courts this week reveal a contrasting approach to these important rules, and we may be facing a period of avoidable legal uncertainty.

The first case - R (ASLEF, UNISON, NAS/UWT v The Sec of State for Business & Trade) is essentially a straightforward application of the current law, finding that the then Minister, Kwasi Kwarteng should have consulted before revoking regulations that have hitherto prevented the deployment of people to carry out the work of employees taking part in official industrial action. It was not an original idea. In 2015, the Government sought to make such a change and as required by statute, held a consultation on proposal. Its impact assessment was criticised by an independent authority, but as responses were overwhelmingly negative, Ministers dropped the idea.

In 2022, and no doubt in response to the recent wave of industrial disputes, political pressure mounted for a swift repeal of the same regulations. Undertaking a fresh consultation would take too long and officials decided to review and summarise the exercise undertaken six years earlier – but which had never been published. Mr Justice Linden was not impressed, ruling that a re-consultation would have been necessary. He also decided that even had it not been necessary, the Minister could not rely on the 2015 exercise as there was no evidence that its findings had been conscientiously considered by the Secretary of State before deciding to proceed with revoking the Regulation.

That makes it just the latest in a long line of cases where ‘Gunning Four’, as it is known, has operated so as to give consultees the right for their views to be considered before decisions are taken. The Judge accordingly took care to review the caselaw on the duty to consult – making reference to well over a dozen of the cases where the Gunning Principles have featured in recent years. He had plenty to choose from. I have personally analysed about 150 judgments where the Principles have been held to apply. His finding in favour of the Trades Unions will have surprised very few specialists in consultation law, as it was clear that the Government was trying to bypass a statutory requirement to consult.

Far more problematic, therefore is the Court of Appeal’s decision in the case of the Secretary of State for Work and Pensions v Eveleigh. In it, the Court overturns a 2022 judgment by Griffiths J to declare unlawful, the Government’s Disability Strategy because its comprehensive survey of disabled people failed to satisfy the Gunning requirements for a consultation. It had been branded as a consultation and there were many fine words about the way in which responses would influence the Strategy! Was it really a consultation? The Judge at first instance thought so, and commentators were swift to enjoy the joke that “If it looks like a duck and quacks like a duck and is called a duck … it probably IS a duck.”

The Court of Appeal decided that it wasn’t a duck after all.

There is certainly room for debate as to whether the Government should ever have called it a consultation, and whether the true state of its policy development was merely … confused. Lady Justice Elizabeth Laing maintains that the test of being a consultation is one of ‘substance’ rather than form; in her words:

             “….there is no magic in the word ‘consultation’. It is a word which in ordinary usage has a range of    

               meanings. The mere use of that word cannot entail legal consequences, especially if that word is

               used by people who are not lawyers.”

However, in my view, many practitioners will be deeply concerned about blurring the definition and allowing politicians to enjoy the accolades of being ‘consultative’ without being answerable to the common sense standards of the Gunning Principles. Will it really be good for democratic processes if consultees cannot in future be sure if engagement exercises described as consultations will be subject to standards which, for many years have been assumed to apply?

But the Court went much further. It sought to circumscribe the situations where the Gunning Principles apply. It did so, apparently by relying upon only three cases – those of Gunning in 1985, Coughlan in 2001 and the seminal Supreme Court judgment in Moseley in 2014. At paragraph 83, she asserts that:

            “All the cases in which the Gunning criteria have been held to apply are cases in which a public

             authority contemplated making a specific decision which would or might adversely affect a particular

             person or group of people.”

I do not believe this is true. Neither is it clear whether their Lordships were making an observation about the authorities upon which they had heard arguments or suggesting that, in future, these would be the only scenarios to which the Gunning Principles might apply.

If it is the latter, there could be an immediate and chilling effect upon the consistency and perceived fairness of consultations in this country. There are many reasons, and we may need to explore these in greater detail in another paper. At a top-level I advance the following:

• Consultations are rightly and regularly used at different stages of policy-formulation and decision-making. It is not always a 'specific decision'. In fact, it is common to find genuine and well-conducted consultations on major, comprehensive strategies on aspects of housing, transport, health, education and almost everything else. The mere suggestion that these might no longer attract the protection of the Gunning Principles would be an astonishing step backwards.
• Restricting their application to a ‘public authority’ will provoke huge uncertainty and much litigation. Ministers are keen to see Trades Unions consult their members on strike action. How would they feel if they were free of a Gunning Two requirement to provide sufficient information as to allow ‘intelligent consideration’. Do we want a loophole whereby hybrid bodies or other organisations can undertake a consultation having already taken the relevant decisions (Gunning One), providing inadequate information (Gunning Two), or insufficient time (Gunning Three) and then take not steps to consider the output (Gunning Four)? 
• Similarly – restricting the Gunning Principles to situations where people are ‘adversely affected’ would make them inapplicable to ‘good news’ consultations. Finding stakeholders and citizens’ priorities and preferences is every bit as important – and whether or not the Gunning Principles apply should not depend upon a test of whether there might be negative consequences for some.

The Court hinted that ‘voluntary’ consultations might also not require adherence to the Gunning Principles. Again, this would be hugely destabilising, for deciding what is ‘voluntary’ and what is not would be a nightmare. Many public bodies statutorily obliged to consult on a very specific issue sensibly (and voluntarily) enlarge the exercise in order to learn more about consultee views on the wider context. The NHS does it all the time!

Determining the extent to which the Gunning Principles apply is a prospect full of horror for those of us who just want to see best practice observed.

This is why the long-term effect of Everleigh may be a final recognition that consultor obligations and consultee rights cannot be left to the Courts. We probably need legislation – a Consultation Act that lays down what a consultation should be and creates a mechanism for standards-setting and regulation.

And in the meantime, might we hope for a Supreme Court ruling that might help with some much-needed clarification?

Rhion H Jones LL.B
18 July 2023

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.