Ministerial consultation


It had been niggling away at me over the week-end and as the writhing form of the intended #CSA Inquiry has unfolded over the past three or four days: does the Home Secretary have any duty to consult with survivors when she sets up her inquiry (in whatever legal format that may ultimately be). Any wind in my sails may have been taken away a little, by the fact that it was reported on 21 July 2014 – how reliably, I do not know – that she had already promised to ‘consult’. I doubt she has, in fact done so, so far as appointment of Lady Woolf as chair is concerned; and if she has done so, probably not in any realistic way.


So is there any duty upon her to consult? On a brief reading (so far) I have found no decision on the point in relation to a discretionary inquiry (ie as distinct from a statutory inquiry under Inquiries Act 2005). By definition this is an area very much within ministerial control. However courtesy and the feelings of a number of those involved – the survivors – might have dictated some form of consultation. And, it seems, she promised she would consult. Hers is an administrative decision. It is therefore susceptible to ordinary administrative law: judicial review and so on.


Duty to consult and the common law


Strictly speaking the common law does not require her to consult. However, the tendency of modern government and administration is to do so whenever reasonably possible. The Court of Appeal has considered the point in the last few months. (This was in relation to the closing of a local authority run home; but the principles are broadly the same.) In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 (http://www.bailii.org/ew/cases/EWCA/Civ/2014/404.html) Lord Justice Longmore explained the position as follows:


Consultation on what?

[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.


‘Fairness in consultation’


The role of fairness in consultation is stressed by the leading judicial review text-book by reference to another case, R v North & East Devon HA exp Coughlan [1999] EWCA 1871: http://www.bailii.org/ew/cases/EWCA/Civ/1999/1871.html ) where the Master of the Rolls Lord Woolf said:


[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken.


It would always have been courteous of Mrs May to consult, I should have thought. If nothing else it is a modern approach to administrative decisions. If she does not do so on that ground alone there is probably little that those affected can do to challenge her failure.


Was consultation promised?


If she has indeed promised consultation, that may raise different issues about her decision-making and whether Home Office procedures can be reviewed. Lord Woolf said (as quoted above) that if consultation ‘is embarked upon it must be carried out properly’. Was consultation promised? Might it reasonably be expected? What form should consultation on the panel and its terms of reference take then?


Alongside questions about the ‘impartiality’ of her chair, Mrs May might reasonably be expected, please, to answer those three questions.



  1. Pingback: A Fortnight in the Life of the Overarching Child Sexual Abuse Inquiry. Where now? | cathyfox

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