“An Act to regulate employment agencies and businesses; and for connected purposes”
“The Secretary of State may make regulations to secure the proper conduct of employment agencies and employment businesses and to protect the interests of persons availing themselves of the services of such agencies and businesses and such regulations may in particular make provision- (a) requiring persons carrying on such agencies and businesses to keep records; (b) prescribing the form of such records and the entries to be made in them; (c) prescribing qualifications appropriate for persons carrying on such agencies and businesses; (d) regulating advertising by persons carrying on such agencies and businesses; (e) safeguarding clients’ money deposited with or otherwise received by persons carrying on such agencies and businesses; (ea) restricting the services which may be provided by persons carrying on such agencies and businesses; (eb) regulating the way in which and the terms on which services may be provided by persons carrying on such agencies and businesses; (ec) restricting or regulating the charging of fees by persons carrying on such agencies and businesses.”
“Regulations and orders. (1) Subject to the next following subsection, the Secretary of State shall have power to make regulations for prescribing anything which under this Act is to be prescribed. (2) The Secretary of State shall not make any regulations under this Act except after consultation with such bodies as appear to him to be representative of the interests concerned. …. (5) Regulations under section 5(1) or 6(1) of this Act shall not be made unless a draft has been laid before, and approved by resolution of, each House of Parliament….”
“…the business…of supplying persons in the employment of the person carrying on the business, to act for, and under the control of, other persons in any capacity.”
“…these basic requirements are essential if the consultation process is to have a sensible content. First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third . . . that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals.”
“The Government is committed to ensuring that strikes only ever happen as the result of a clear, democratic decision and commits to tackling the disproportionate impact of strikes in important public services. The Government thinks that removing Regulation 7 from the Conduct Regulations will give the recruitment sector the opportunity to help employers to limit the impact to the wider economy and society of strike action, by ensuring that businesses can continue to operate to some extent.”
“The line we continue to use, as approved by previous Ministers, is that “we are considering responses to the consultation”
“We intend to implement the reforms in theTrade Union Act 2015 (sic) and consider the impact of these fully before making any further policy decisions.”
“…I just want to emphasise that, given we are a week away from IA, the Transport Secretary is incredibly keen we get this ready at serious pace. He would like this to be in a position to be announced soon, and laid before recess, which, and not to speak for [redacted] , is goal which I believe is shared by the PM”
“Urgent – we understand this is a high priority for Number 10 and there is a desire to proceed at pace including, if possible, laying required statutory instruments before the recess.”
“I specifically asked the Secretary of State if he wanted to remove regulation 7. I explained that repealing regulation 7 was a manifesto commitment from the 2015 Conservative Manifesto and that the Government had consulted on it from July to September 2015. I provided him with a summary of the responses to that consultation. The Secretary of State’s private office advised me later that day that he was content to proceed with removing regulation 7 and indicated that he wanted the repeal to take place at pace.”
“7. … BEIS ran a consultation from 15 July to9 September 2015 to gather views on what the impact would be of repealing this regulation. We received 167 substantive responses from a range of stakeholders. We can provide you with a full analysis of these responses if that would be helpful. In addition to these responses, the TUC also submitted a petition opposing the repeal signed by 25,000 members, 1,500 of whom also made comments. We also received 11,000 individual emails with comments. 8. The CBI responded in support of the repeal but the responses from recruitment sector trade associations were more varied. Following the consultation, Ministers at the time decided not to take a decision as they wanted to wait until after theTrade Union Act 2016 had been implemented. A short statement in response to the consultation was issued stating that a decision had been made not to progress this but no detailed reasons were given.”
“The CBI responded in support of the repeal but the responses from recruitment sector trade associations were more varied.”
“In my advice on13 June 2022 , I asked the Secretary of State if he wanted to consult ahead of legislating to remove regulation 7, should he decide to go ahead with the reform. Later that day his private office confirmed that he did not want to consult in advance of laying the regulations.”
“The Government carefully considered these points but chose to proceed with repealing regulation 7 of the 2003 Regulations”
“(3) The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. As I said in Hoareau at para 20: “It is the function of the public authority itself to draw the court's attention to relevant matters; …… to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.” (4) The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for “spin”.” “It is the function of the public authority itself to draw the court's attention to relevant matters; …… to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”
“On13 June 2022 , the SoS decided that Regulation 7 should be repealed and that this should be done as soon as reasonably practicable. In deciding to proceed with the repeal of Regulation 7 the Government carefully considered the responses to the 2015 Consultation [see [55] and [60] of Mr Stevens’ statement]”
“There is no dispute that the Secretary of State was obliged to give conscientious consideration to the outcome of the 2015 Consultation. The Secretary of State did so, twice. First, in 2015, and again, in 2022, when the Secretary of State took the responses to the 2015 Consultation fully into account when deciding to make the 2022 Regulations. It follows that the limited statutory duty to consult contained in section 12(2) of the EAA was plainly fulfilled.”
“DFT advice (at official level at least) continues to be that this change will not have a positive short-term impact on the planned rail strikes.Therefore it is not clear, in policy terms, what the benefit of the accelerated timetable is. If it is to act as a deterrent or encourage unions to negotiate more seriously then this may be achieved by laying the regulations before the summer recess (which shows Government intent);”
“Repealing this regulation does not remove or put additional barriers in the way of an individual’s ability to strike but it would allow employers more flexibility in how they limit the impact of strike action on the wider economy and members of the public.In our view it strikes the right balance between the right to strike against the right of employers and ordinary people to not suffer disproportionate disruption to their daily lives.”
“2.3 The Government is committed to ensuring strikes only happen as the result of a clear, democratic decision and commits to tackling the disproportionate impact of strikes on important public services. In addition, there are sectors in which industrial action has a wider impact on members of the public that is disproportionate and unfair. Strikes can prevent people from getting to work and prevent businesses from managing their workforces effectively. 2.4 The Government also considers it important to protect individuals’ right to strike but believes this must not come at the cost of unreasonable disruption to important services for members of the public or unreasonable cost to businesses at a time when both are struggling with the rising cost of living and doing business. 2.5 This instrument therefore repeals regulation 7 of the Conduct Regulations, with the aim of limiting the impact to society and the wider economy of strike action by ensuring that businesses can continue to operate to some extent.”
“The Government has carefully considered all these points and remains of the view that removing regulation 7 is the right course of action…”
“Kwasi Kwarteng at the Department for Business, Energy and Industrial Strategy (BEIS) can confirm that this Explanatory Memorandum meets the required standard.”
“Yesterday, the government published an Impact Assessment with vastly reduced costs and benefits from the Impact Assessment published in 2015, previously declared “not fit for purpose” by the Regulatory Policy Committee (RPC). Without any consultation with those most affected – the agencies and their workers – it’s difficult to give the assumptions in the latest assessment any credence. Relying on a seven-year-old consultation to apply to legislation being laid in 2022 is wholly inappropriate and fails to take account of the wider economic and political context.”
“In order to estimate the impact of this measure, we would need to make a number of assumptions and do not have the evidence to do this. The IA therefore uses a simple model that looks at impacts from business impacted from industrial action and carried out break even analysis. This shows that if agency workers were able to reduce annual average working days lost from industrial action by 2%, with around half the productivity of regular workers, then the impact of this policy would be neutral (break-even). This does not include non-monetized impacts, most notably the wider (significant) benefits on the rest of the economy if employers facing strike action can maintain some activity. Hence, we are confident that this policy change is likely to be net beneficial, however, we are unable to robustly estimate the size of this impact.”
“In our view the 2015 consultation discharges this obligation and there is no need for an additional exercise.”
“As the Explanatory Memorandum sets out, the consultation itself was thorough and elicited a large number of responses (167 in total) and from a wide range of different types of stakeholders. While we accept that circumstances have altered in some ways, we do not think these are particularly relevant to the changes we are proposing to make. As such there is no reason to think any new groups of stakeholders would respond or that they would raise new points.”
“Now that the Trade Union Act has been in place for some time, we have taken the opportunity to consider, once more, whether our industrial relations framework strikes the right balance between the important right of workers to strike and the rights of the public to go about their daily lives unimpeded. In doing this, I have come to the conclusion that removing this regulation is the right thing to do.”
“As we have highlighted repeatedly, parliamentary scrutiny starts when legislation is laid before Parliament, and every time an instrument is laid without the supporting IA, this undermines our ability and the ability of Parliament more generally to scrutinise legislation effectively. The fact that in the IA the Department was unable to “robustly estimate the size” of the policy’s impact because of a lack of evidence raises questions as to the effectiveness of the change proposed by the draft Regulations.”
“ in particular the Government’s intention to repeal the 2017 Act to ensure that the draft Regulations apply equally across GB. Given that this raises highly sensitive constitutional questions, there should have been an earlier and more comprehensive engagement with the Welsh Government and Senedd on the draft Regulations. We note that the Secretary of State has committed to further engage with the Welsh Government on the repeal of the 2017 Act.”
“…irrespective of how the duty to consult has been generated, that same common law duty of procedural fairness will inform the manner in which the consultation should be conducted”
“Such are two valuable practical consequences of fair consultation. But underlying it is also a third purpose, reflective of the democratic principle at the heart of our society.”
“It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”
“far removed in context and scope from the situations in which the common law has recognised a duty of procedural fairness. The purpose of public consultation in that context is in my opinion not to ensure procedural fairness in the treatment of persons whose legally protected interests may be adversely affected, as the common law seeks to do. The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority’s decision-making process.”
“There appears to us to be very little between them as to the correct approach. We agree with Lord Reed JSC that the court must have regard to the statutory context and that, as he puts it, in the particular statutory context, the duty of the local authority was to ensure public participation in the decision-making process. It seems to us that in order to do so it must act fairly by taking the specific steps set out by Lord Reed JSC, in para 39. In these circumstances we can we think safely agree with both judgments.”
“139. .. at the relevant time the decision-maker must have an "open mind on the issue of principle involved"… The question is whether the decision-maker had already made up its mind to adopt the proposal or whether it was willing to reconsider its proposal in the light of the consultation process if a case to do so was made out. There must be no actual pre-determination on the part of the decision-maker. Where the decision-maker is consulting on a particular proposal, the consultation must include consultation on whether the proposal should be adopted, and not just on how ..there is a legitimate distinction to be drawn between actual pre-determination on the part of the decision-maker and the decision-maker having a "pre-disposition" towards the proposal. The latter is permissible, and necessarily so in circumstances where the decision-maker is, as entitled to do, to determine the particular proposal upon which he wishes to consult….”
“What needs to be published about the proposal is very much a matter for the judgment of the person carrying out the consultation to whose decision the courts will accord a very broad discretion . . . But, in my judgment, sufficient information to enable an [intelligent] response requires the consultee to know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision, or the basis on which the decision is likely to be taken.”
“151. This requirement does not amount to an obligation to adopt the submission by any particular respondent, nor to adopt the majority view. The decision-maker is entitled to consider the whole range of responses and then to form his own view, independently of the views of any particular consultees. Further there is no obligation to consider each and every specific item of detail… There is an obligation to take account of the majority view, but no obligation to adopt that view….. 153….. Where there is a large number of consultation responses, conscientious consideration does not require a fully reasoned decision letter as following a public inquiry. The real question is whether the response to the problems is rational. Nevertheless there should be evidence of consideration of important points made by consultees…”
“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 courts should not be too liberal in the use of its power of judicial review to compel further consultation on any changeIn 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.”
“In the latter type of case, I am not persuaded that the “fundamental change” test is appropriate. …. It is easy to postulate the test - that the new factor must be of such significance that, in all the circumstances, fairness demands that it must (not may) be drawn to the attention of consultees; it is much more difficult to decide what fairness demands in any particular set of circumstances. A holistic approach should be adopted, all relevant factors should be considered, and these may include, in addition to the nature and significance of the new material, such matters as the extent to which the new material is in the public domain, thereby affording consultees the opportunity to comment on its relevance to the proposal the subject of the consultation, and the practical implications, including cost and delay, of further consultation.”
“an established public law principle…that having chosen to consult in relation to a public law decision to be taken, if there is a fundamental change of circumstance arising during the course of any delay in the final taking of that decision, there will be a duty to re-consult. That is the Elphinstone case.”
“When there is a statutory duty of consultation, the question whether reconsultation is required if there is a change to the proposal on which there has been consultation depends on what fairness requires. That will depend inter alia on the purposes for which the requirement of consultation is imposed, the nature and extent of any changes and their potential significance for those who might be consulted”
“20…a duty to re-consult may arise in certain circumstances. However, the changes would have to be of such significance to make it almost irrational for a public authority to press on with its policy without returning to consult those who were originally consulted.. 22….It is an important point of distinction from the [Holborn] Studios case that in this case the proposal has not changed; it remains the same. The proposal, as it was originally consulted upon, was that the school should be converted to an academy and nothing on that front has changed. The points that are relied upon therefore by the Claimant are external matters. A great deal of caution in my judgment needs to be adopted before the Court accepts that changes in external factors, such as these, give rise to a duty to reconsider. I can imagine changes of such enormous importance and having such significant bearing on a decision that has already been made that it might end up arguably being irrational to press on without reconsidering those new matters. But everything depends upon individual facts. …..There is a clear risk that setting the bar too low in terms of what amounts to material change of circumstances that public authorities will be consigned forever to having to re-consult on any project or policy that is extended over any substantial period”
“37. The Secretary of State was well aware of the strongly held views of local authorities, and other bodies, as a result of the 2009 consultation. 38. That recent and comprehensive consultation in 2009 is in my judgment the key to the decision in the present situation. The Secretary of State was minded to make the orders challenged notwithstanding the strong, articulated objections to them by local planning authorities, of which he was aware. The decision to make them was a political decision which the Secretary of State was entitled to make. In the circumstances, he was then entitled, first, to make the consultation a limited one and, secondly, to decide that there was no evidence of significant new issues arising, which required fuller consultation.”
“Provided that the consultation is conducted before any regulations are introduced, and such bodies as the SoS considers representative are consulted, the duty to consult is satisfied”
“i) The burden of proof is on the defendant.. ; ii) The "highly likely" standard of proof sets a high hurdle. Although s31(2A) has lowered the threshold for refusal of relief where there has been unlawful conduct by a public authority below the previous strict test set out in authorities such as Simplex GE (Holdings) Ltd v Secretary of State for the Environment(1988) 57 P & CR 306 , the threshold remains a high one…: . iii) The "highly likely" test expresses a standard somewhere between the civil standard (the balance of probabilities) and the criminal standard (beyond reasonable doubt)... iv) The court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred…. v) The court must undertake its own objective assessment of the decision-making process and what the result would have been if the decision-maker had not erred in law..:.. vi) The test is not always easy to apply. The court has the unenviable task of (i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the "conduct complained of" (iii) deciding what on that footing the outcome for the applicant is "highly likely" to have been and/or (iv) deciding whether, for the applicant, the "highly likely" outcome is "substantially different" from the actual outcome'… vii) It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A); the matter is not simply one of discretion but becomes one of duty provided the statutory criteria are satisfied…. viii) The provision is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.. ix) ....: x) The Court can, with due caution, take account of evidence as to how the decision-making process would have been approached if the identified errors had not occurred..…. Furthermore, a witness statement could be a very important aspect of such evidence…although the court should approach with a degree of scepticism self-interested speculations by an official of the public authority which is found to have acted unlawfully about how things might have worked out if no unlawfulness had occurred… xi) Importantly, the court must not cast itself in the role of the decision-maker…. While much will depend on the particular facts of the case before the court, 'nevertheless the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is "highly likely" that the outcome would not have been "substantially different" if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law.': R (Plan B Earth) v Secretary of State for Transport[2020] EWCA Civ 214 at [273]. xii) It follows that where particular facts relevant to the substantive decision are in dispute, the court must not 'take on a fact- finding role, which is inappropriate for judicial review proceedings' where the 'issue raised…is not an issue of jurisdictional fact'. The court must not be enticed 'into forbidden territory which belongs to the decision-maker, reaching decisions on the basis of material before it at the time of the decision under challenge, and not additional evidence after the event when a challenge is brought'. To do otherwise would be to use section 31(2A) in a way which was never intended by Parliament... xiii) …: xiv) Finally, the contention that the section 31(2A) duty is restricted to situations in which there have been trivial procedural or technical errors….. was rejected by the Court of Appeal…” ii) The "highly likely" standard of proof sets a high hurdle. Although s31(2A) has lowered the threshold for refusal of relief where there has been unlawful conduct by a public authority below the previous strict test set out in authorities such as Simplex GE (Holdings) Ltd v Secretary of State for the Environment(1988) 57 P & CR 306 , the threshold remains a high one…: . iii) The "highly likely" test expresses a standard somewhere between the civil standard (the balance of probabilities) and the criminal standard (beyond reasonable doubt)... iv) The court is required to undertake an evaluation of the hypothetical or counterfactual world in which the identified unlawful conduct by the public authority is assumed not to have occurred…. v) The court must undertake its own objective assessment of the decision-making process and what the result would have been if the decision-maker had not erred in law..:.. vi) The test is not always easy to apply. The court has the unenviable task of (i) assessing objectively the decision and the process leading to it, (ii) identifying and then stripping out the "conduct complained of" (iii) deciding what on that footing the outcome for the applicant is "highly likely" to have been and/or (iv) deciding whether, for the applicant, the "highly likely" outcome is "substantially different" from the actual outcome'… vii) It is important that a court faced with an application for judicial review does not shirk the obligation imposed by section 31(2A); the matter is not simply one of discretion but becomes one of duty provided the statutory criteria are satisfied…. viii) The provision is designed to ensure that, even if there has been some flaw in the decision-making process which might render the decision unlawful, where the other circumstances mean that quashing the decision would be a waste of time and public money (because, even when adjustment was made for the error, it is highly likely that the same decision would be reached), the decision must not be quashed and the application should instead be rejected. The provision is designed to ensure that the judicial review process remains flexible and realistic.. ix) ....: x) The Court can, with due caution, take account of evidence as to how the decision-making process would have been approached if the identified errors had not occurred..…. Furthermore, a witness statement could be a very important aspect of such evidence…although the court should approach with a degree of scepticism self-interested speculations by an official of the public authority which is found to have acted unlawfully about how things might have worked out if no unlawfulness had occurred… xi) Importantly, the court must not cast itself in the role of the decision-maker…. While much will depend on the particular facts of the case before the court, 'nevertheless the court should still bear in mind that Parliament has not altered the fundamental relationship between the courts and the executive. In particular, courts should still be cautious about straying, even subconsciously, into the forbidden territory of assessing the merits of a public decision under challenge by way of judicial review. If there has been an error of law, for example in the approach the executive has taken to its decision-making process, it will often be difficult or impossible for a court to conclude that it is "highly likely" that the outcome would not have been "substantially different" if the executive had gone about the decision-making process in accordance with the law. Courts should also not lose sight of their fundamental function, which is to maintain the rule of law.': R (Plan B Earth) v Secretary of State for Transport[2020] EWCA Civ 214 at [273]. xii) It follows that where particular facts relevant to the substantive decision are in dispute, the court must not 'take on a fact- finding role, which is inappropriate for judicial review proceedings' where the 'issue raised…is not an issue of jurisdictional fact'. The court must not be enticed 'into forbidden territory which belongs to the decision-maker, reaching decisions on the basis of material before it at the time of the decision under challenge, and not additional evidence after the event when a challenge is brought'. To do otherwise would be to use section 31(2A) in a way which was never intended by Parliament... xiii) …: xiv) Finally, the contention that the section 31(2A) duty is restricted to situations in which there have been trivial procedural or technical errors….. was rejected by the Court of Appeal…”
“In assessing whether it is highly likely that the same decision would have been reached regardless of a consultation process being carried out, the factors that may be relevant will include the extent to which the claimant has had the opportunity to make its views known to the decision-maker by other means, the extent to which such views were taken into account by the decision-maker, and whether quashing the decision would create undue administrative inconvenience or have a significant detrimental impact on third parties…”