UK: Designing the Consultation Exercise

Last Updated: 20 January 2003

Some implications of the recent East Kent NHS Trust and Medway Council (Gatwick Airport) cases.


It has for long been common for statutes to provide that before a public body exercises a statutory function it should engage in a process of consultation with such categories of interested parties as the statute may define.

These procedural obligations have been quite rigorously policed by the judges, who have generally regarded as null and void acts and decisions taken following failure to have consulted, or consulted adequately. The judges have regarded such statutory duties as important both in terms of the solace they may provide the citizen in knowing that his or her opinions must be sought and considered by the public body in question, and also because such procedures have clear potential to enhance the quality of decision-making. Decisions informed by a broad range of information and opinion should, in principle, be of better quality than decisions taken from a narrower, and probably more remote, perspective.

In addition to requirements to consult which are provided expressly by statutory provision the judges have in recent years developed case-law doctrine which provides that in certain circumstances a duty to consult may exist even though the statute governing a public body's exercise of its functions is silent on the matter. This will be the case in circumstances where the public body may have conducted itself in such as way as, by word or deed, to have unequivocally given to a claimant a legitimate expectation that a decision would not be taken without his or her views first being sought and considered.

The East Kent NHS Trust and the Medway Council (Gatwick Airport) cases

Two recent decisions of the Administrative Court have shed some valuable light on the scope of such obligations on public bodies to engage in consultation as a precondition of the valid exercise of statutory powers.

  • R (on application of Smith) v East Kent NHS Trust and Another (Administrative Court, 4 December 2002) deals with the duty (if any) to re-consult in cases where wisdom gained from a consultation exercise into certain stated policy options leads the decision-maker to conclude that a rather different option should ultimately be pursued. In the absence of a further process of consultation will there have been proper consultation in relation to that final decision?
  • R (on application of Medway Council & ors) v Secretary of State for Transport (Administrative Court, 26 November 2002) explores the circumstances in which a claimant may challenge a consultation exercise on the basis that the range of options upon which the consultation focuses has been set inappropriately narrowly.

The East Kent NHS Trust case

The facts of East Kent were complex. In his judgment Silber J describes in some considerable detail the recent history of changes in health care provision at hospitals within Kent, the various options for further change which were presented for comment during a statutory consultation exercise in early 2002, and the decision about restructuring services as subsequently announced by East Kent NHS Trust.

For present purposes it is sufficient to note that Silber J's assessment of the facts was that the difference between the options consulted upon and the final decision of the NHS Trust was not so fundamental as to lead to the conclusion that that final decision had not been consulted upon. In the language of an earlier case, the final decisions could be regarded as having 'emerged from' and 'reflected' the consultation process. Accordingly, on the facts, the challenge failed.

However, the position would have been different had the judge found there to have been a more fundamental difference between the consultation options and the ultimate decisions. In such a case the challenge would have succeeded: the final decision would not have been preceded by a proper process of consultation.

To persuade a judge that the facts fall into this category may, however, not be easy: the test to be satsified is a strong one. Silber J explained the proper judicial approach as follows:

"The concept of fairness should determine whether there is a need to re-consult if the decision-maker wishes to accept a fresh proposal but the court should not be too liberal in the use of its power of judicial review to compel further consultation on any change. In determining whether there should be further re-consultation, a proper balance has to be struck between the strong obligation to consult on the part of the health authority and the need for decisions to be taken that affect the running of the Health Service. This means that there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt".

Medway Council (Gatwick Airport)

In this case a challenge was brought in relation to the scope of a consultation to be conducted by the Department for Transport into how how much extra airport capacity will be needed over the next 30 years, and where that capacity should be located. The consultation exercise would lead to a White Paper during 2003 setting out Government policy.

Objectors to possible development at certain potential locations (Stansted in Essex, and Cliffe in north Kent) objected to the omission of 'enlargement of capacity at Gatwick' from the range of options upon which consultees' views were sought.

Maurice Kay J accepted the arguments put forward by the claimants that the reasons put forward by the Government in support of its decision to exclude 'Gatwick' from the consultation process were tainted by irrationality, and held that the range of consultation options should have included the possibility of accommodating further capacity at that airport. Certain difficulties, referred to by Government, associated with the development of Gatwick were not such as to warrant omission of this option from the range of options in relation which the consultation should have been focused. Further, the known 'nature conservation' issues associated with development of an airport at Cliffe required that that option would need in due course to be assessed in the light of the availability of alternative sites which might have a lesser nature conservation impact. It followed that a proper initial assessment of the Cliffe option required a wide range of information as regards its comparative advantages and disadvantages as compared to all other potential locations (including Gatwick) for adding to airport capacity.

In relation to this last argument Maurice Kay J commented:

"The Consultation Document contemplates a serious possibility that the White Paper will express a policy which includes the development of Cliffe but ... at the moment, the Government has not decided whether there are any viable alternatives or whether imperative reasons of overriding public interest resolve the matter in favour of Cliffe. I therefore infer that it has not decided that Heathrow and Stansted, separately or together, would amount to a viable alternative or, indeed, that Heathrow, Stansted and Gatwick, separately or together, would not. Moreover, ... it may be the case that Gatwick, by itself or with one or both of the others, would be an ... alternative solution ....

I have come to the conclusion that, in the context of these conservation considerations, it was irrational to exclude all Gatwick options from the consultation process."


These two recent decisions provide a valuable reminder that public bodies including regulators should design their consultation processes with some care. Consultations tend nowadays to be fairly specific as regards the matters upon which views are particularly sought. This may assist consultees focus their responses, and may assist government in its collation and assessment of responses. However, some care should be taken that such itemisation of options or matters upon which a public body seeks opinions should not

  • offer potential for challenge to the consultation process as involving too narrow a range of considerations relevant to the decision to be taken (as in Medway County Council (Gatwick)); or
  • unduly constrain options as regards the ultimate decision to be taken without a re-consultation exercise being necessary (as contemplated in East Kent NHS)

Care taken in the design of the consultation exercise may well provide protection from the possibility of subsequent judicial challenge.

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions