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The most important consultation case of the year? The return of Article 39

Earlier this year we reported on the case of Article 39 v Secretary of State for Education, a challenge brought by the children’s rights charity Article 39 to the Adoption and children (Coronavirus) (Amendment) Regulations 2020. The case went to appeal, and this week we received the judgment, and it could be one of the most significant consultation cases we’ve had in 2020.

The original case revolved around several different grounds, including allegations of a lack of consultation with the Children’s Commissioner and other children’s rights organisations. It was the consultation ground that was appealed to the Court of Appeal, and when it came before the Court, they disagreed with the judgment of the High Court and overturned the judgment.

In the original case, Mrs Justice Lieven concluded that the Government had acted lawfully when it undertook a short, informal consultation on the regulatory changes with local authorities and healthcare providers even though it neglected to consult the Children’s Commissioner or any children’s rights bodies. Within the context of the pandemic, she said that: “A legitimate expectation that arose in normal circumstances would not give a right to consultation in the circumstances of dealing with the pandemic in Spring 2020.”

In the Court of Appeal, Lord Justice Underhill and his colleagues rejected the Government’s arguments. There were, they said, clear duties to consult, established by three separate methods: statutory, established practice, and principles of fairness. Drawing on the Supreme Court judgment in Moseley v London Borough of Haringey, the bench highlighted the purposes of consultation. It said there were no reasons that the Commissioner and other relevant bodies could not have been brought into the scope of the informal e-mail based consultation that the Secretary of State had undertaken.

So why is the case important? Not only is the judgment beautifully clear, but it also represents a reassertion of some of the basic consultation principles and a reassertion of a more cautious approach to consulting under pandemic conditions. The two key lessons are perhaps these: if a consultation process takes place, it must take place properly. If a shorter process is required to adequately respond to changing circumstances, then it should be done as far as possible in line with normal practices, and any departures should be well-justified.

The judgment does not, however, answer all of the questions that remain for public bodies on how to consult during the pandemic. We wrote last week about the Rights: Community: Action case, which examined a departure from usual consultation practices and considered that it might be amenable to appeal. We can’t help but feel that this judgment might increase that likelihood.

 

This is a short initial analysis of the Article 39 appeal judgment, published today. Members will receive a detailed briefing note on the case early next week. If you are interested in membership, then get in touch with the Institute. In addition, at next week’s Wednesday Wisdom session, An Update on the Law of Consultation in 2020 we will be discussing this and other key cases from the year. Why not join us for the session?

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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