The retreat from Gunning? The riddle of the ‘Question Seven’ case

This is Blog no 67

Until recently, the law was clear and effective. If you ran a public consultation, the Gunning Principles applied. Unfortunately, the Courts are muddying the waters.

Last year, in the Eveleigh case [2023] EWCA Civ 810, the Court of Appeal, both through its decision in that case and through some rather loose suggestions made in the judgment, has cast doubt on the application of these well-established principles. It ruled that just because an engagement is ‘labelled’ as a consultation, it does not necessarily mean that Gunning will apply. Laing LJ also restricted their relevance to certain kinds of consultation – where specific decisions were to be influenced. This potentially might mean that consultees responding to consultations on entire strategies, policy development papers or programmes of action might lose the protections of the Gunning Principles. To make matters even worse, she hinted – but made no definitive ruling – that a consultation undertaken ‘voluntarily’ – meaning one presumably that was not required by statute or common law – might also not need to follow the Gunning Principles.

We now have a case, where a particular question in a consultation has been denied the protection of Gunning. It is the case of R (CU) v Secretary of State for Education [2024] EWHC 638. I will refer to it as the ‘Question Seven case’ as it turns upon whether it was lawful for the consultation to have omitted to tell consultees enough of what it really meant by asking the Question. In my view, it is a straightforward application of the Gunning Two principle that requires the publication of sufficient information as would enable respondents to give the matter intelligent consideration.

As always, the context matters, and has been well-explained by Stephen Hill in his recent article on this case for The Consultation Institute. The exercise in question was an important consultation about future of services for children and young people with Special Educational Needs and Disabilities in England. It was styled a ‘Green Paper’ and published in March 2022. It posed 22 sensible questions and a very professional Output report, (prepared by ICF Consulting services) was published a year later. In a reasonable response of almost 6,000 consultees, over half were parents or carers; a further 18% were teachers.

It is a VERY comprehensive consultation, covering a national SEND system, education and care plans, alternative provision, training and much else. It was much needed as SEND services have been under immense strain in most local authorities, and there have been many legal challenges by parents and campaigners dissatisfied with the arrangements made under the legislation. Redress – when things go wrong - has been a hot topic. Indeed, 59% of respondents ‘disagreed’ or ‘strongly disagreed’ with the Green Paper’s proposals for national standards and mandatory mediation in such cases. Specifically, some parents of disabled children believed that there should be financial compensation where Councils were found to have breached Equality Law and possibly, their human rights by discriminating against them. They were keen for a change of policy, enabling such redress to be part of the SEND Review.

Against this background, this was a challenge based just on one question.

Here it is:

7. “Do you consider the current remedies available to the SEND Tribunal for disabled children who have been discriminated against by schools effective in putting children and young people’s education back on track?”

To those mostly concerned with the issue of compensation, this was deeply unsatisfactory wording; it gave little scope for them to express their views. Moreover, the consultation narrative failed to point out that compensation was not a ‘current remedy’. Significantly fewer consultees responded to this question, suggesting maybe that there was a degree of confusion. In this case, claimant lawyers argued that the failure to explain the situation properly amounted to a breach of Gunning Two. Stephen Davies J. disagreed and found for the Government.

The explanation was that this was not a question seeking a response to a policy proposal. An official told the Court that Question Seven “did not need to be included in the Green Paper, but it was decided to include it because it was ‘linked to the theme of strengthening accountability in the SEND system.” All the department wanted to do was “gather information on the current arrangement”, even though it had not thought it worth pointing out to respondents what was and what was not a ‘current remedy’. It was effectively a ‘do nothing’ proposal, or, in the words of the Judge, “a proposal to kick the can down the road”

Maybe the unique circumstances of this case (aren’t they all?) enabled the Judge to conclude that the failure to explain what was meant by ‘current remedies’ did not vitiate the validity of the consultation, and it just so happens that this assisted Ministers to swerve around the awkward and contentious issue of compensation whilst appearing to consult on the subject of remedies. And it is possible that attempting to impugn a consultation just on the alleged failure to provide sufficient information on one single question – was a little optimistic.

But what is important is that the case illustrates the worrying hangover of the Eveleigh judgment and its signal of a potential retreat from Gunning.

Do we really want a regime of public consultation in this country where the sound principles that next year celebrate forty years of generally-accepted applicability are subject to unnecessary uncertainty. Will it be helpful to the practice of public engagement if Courts can rule that whereas the Gunning Principles might apply to the consultation as a whole, one of the Principles can be said not to apply to a single contentious question?

Of course,  there has previously been a significant case that turned on a single question. In 2016, Derbyshire CC successfully challenged a consultation by the proposed Sheffield Combined Authority – arguing that the wording of one key question tried to by-pass the real issue under debate. But on that occasion, the question was pivotal to the main thrust of the consultation. Here, Question Seven seems to have been something of an optional extra and not part of the Government’s core proposition for SEND. It is a shame that the Government failed to explain this; indeed,  for some respondents it might have been THE most important issue. For parents of a disabled child who feel that the failure to provide adequately amounted to discrimination, and justified compensation, the subject of Question Seven might well have been the most critical of all!

Time will tell if this is a single outlier, but I am personally worried that whereas the Gunning Principles may have, to date, been assumed to apply almost universally, organisations may now be able to take risks – and argue that either the whole or part of their consultation may be excused from compliance with these established standards.

The result would be greater uncertainty and a retreat from the high standards that consultation always need to observe if they are to command the respect of consultees and play the part they should in our democracy.

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.