(Tameside) Inquiring minds- the fundamentals of consultation
On a fundamental level, consultation is about the acquiring of sufficient information for a decision-maker to be able to make a good decision. It constitutes a clear duty, whether founded on statute, or in common law, for those in charge to reach out to their communities and gather information that can then be analysed and used in coming to their final conclusions. It’s not the only duty of this sort that is incumbent upon public bodies. The other is known as the Tameside duty of inquiry, the name derived from the case (Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014) in which it first featured.
Broadly speaking, the Tameside duty requires decision-makers to seek out the relevant information that they need to make their decision. It was formulated by the judge at the time, Lord Diplock, as follows:
“The question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”
So far, so already covered by the Gunning Principles you might think. After all, they cover some of the same subject matter. From Sheffield Combined Authority we know that consultors have to ask the right questions. From Gunning 4, we know that decision-makers have to acquaint themselves ‘conscientiously’ with the information gathered, from Gunning 1 we know that this must be done before the decision is made, and from an increasing body of case law we know that consultors must consult relevant people before they make their decision.
So why do we bring this separate duty up? It’s not irrelevant to consultation, and it has arisen in consultation cases passim, although no judge has ever found (to the best of our knowledge) that a consultation case failed because of inadequate inquiry. There are several reasons this might be. Perhaps the most prominent consideration of the duty came in the famous Plantagenet Alliance case, back in 2014.
The basic facts of the case can be summed up in a single sentence. A long-dead king was buried under a car park in Leicester, they needed to rebury him, and a group of people claiming to be his descendants challenged the location of the burial on various procedural grounds. Simple. The Tameside challenge here arose out of a claimant allegation that the Secretary of State had failed to properly inform himself (as required under the Tameside duty) by conducting a public consultation, as to where Richard III’s body should be reburied.
In Plantagenet Alliance, the court held that although the information required to satisfy the Tameside duty could be the result of a consultation, the Tameside duty should not itself be used to bring about consultation by the back door. The duty for Tameside is functionally one of rationality, not process and the test for a successful challenge is therefore both different, and higher than it would be for a challenge founded on procedural consultation grounds.
It crops up in many cases, usually either as an alternative ground to more substantive procedural grounds, or as an aside from judges, noting that public authorities have a duty to inform themselves of critical information. The few that engage with it at all tend to follow the line of thinking in Plantagenet Alliance.
So are there any likely circumstances in consultation where a Tameside challenge might succeed, where others might fail? Or is it, as was the case in the first iteration of the case that would eventually become R (Moseley) v Haringey and go all the way to the Supreme Court, forever doomed to be dropped as a ground in preference for an easier to sustain argument of bad process under duty to consult laws?
It’s not inconceivable. The duty to consult only arises in a limited set of circumstances (broadly speaking, again from Plantagenet Alliance: statutory duty, promise to consult, established practice of consultation, and in exceptional cases where not to do so would be conspicuously unfair). Although the court rejected the argument made in that case that a consultation was required to fulfil the Tameside duty of inquiry, might there be edge-cases where the necessary information required to fulfil the Tameside duty might only be acquirable through a public consultation?
Although we wouldn’t expect a seismic shift on this any time in the immediate future, substantive discussion of the relationship between Tameside and consultation does seem to be cropping up more frequently, even appearing in the important Petsafe case last year, albeit in one of the quickest dismissals of an argument we’ve ever seen. The high bar to a successful challenge seems to ensure that most lawyers will head straight to an easier process challenge. It remains to be seen whether any circumstances will ever arise where we might see the duty being successfully argued in a consultation case.