National Council for Civil Liberties, R (on the application of) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin)

“Offence of causing serious disruption by tunnelling (1) A person commits an offence if— (a) they create, or participate in the creation of, a tunnel, (b) the creation or existence of the tunnel causes, or is capable of causing, serious disruption to— (i) two or more individuals, or (ii) an organisation, in a place other than a dwelling, and (c) they intend the creation or existence of the tunnel to have a consequence mentioned in paragraph (b) or are reckless as to whether its creation or existence will have such a consequence.”

“34 Meaning of serious disruption (1) For the purposes of this Act, the cases in which individuals or an organisation may suffer serious disruption include, in particular, where the individuals or the organisation— (a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out— (i) their day-to-day activities (including in particular the making of a journey), (ii) construction or maintenance works, or (iii) activities related to such works, (b) are prevented from making or receiving, or suffer a delay that is more than minor to the making or receiving of, a delivery of a time-sensitive product, or (c) are prevented from accessing, or suffer a disruption that is more than minor to the accessing of, any essential goods or any essential service. (2) In this section— (a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them; (b) a reference to accessing essential goods or essential services includes in particular a reference to accessing— (i) the supply of money, food, water, energy or fuel, (ii) a system of communication, (iii) a place of worship, (iv) a transport facility, (v) an educational institution, or (vi) a service relating to health.” (a) are by way of physical obstruction prevented, or hindered to more than a minor degree, from carrying out— (i) their day-to-day activities (including in particular the making of a journey), (ii) construction or maintenance works, or (iii) activities related to such works, (a) “time-sensitive product” means a product whose value or use to its consumers may be significantly reduced by a delay in the supply of the product to them; (b) a reference to accessing essential goods or essential services includes in particular a reference to accessing— (i) the supply of money, food, water, energy or fuel, (ii) a system of communication, (iii) a place of worship, (iv) a transport facility, (v) an educational institution, or (vi) a service relating to health.”

“6. Current legislation to manage protests provides predominantly for powers to counter behaviours at protests which are violent or distressing to the public. These powers include those under the Public Order Act 1986 (the “1986 Act”) which provides the police with powers to manage public processions and assemblies, including protests. Sections 12 and 14 of the 1986 Act (as amended by the Police, Crime, Sentencing and Courts Act 2022 (“the 2022 Act”)) allow the police to impose any type of condition on a public procession or public assembly necessary to prevent: significant impact on persons or serious disruption to the activities of an organisation by noise; serious disorder; serious damage to property; serious disruption to the life of the community; or if the purpose of the persons organising the protest is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do. 7. Recent changes in the tactics employed by certain protest protesters, for example gluing themselves to buildings or vehicles, blocking roads, tunnelling under land that is subject to development, and obstructing access to buildings such as oil refineries and newspaper printing works, have highlighted some gaps in current legislation.”

“Magistrates’ court costs 51. Internal Home Office Report Data from 2019 (see Table 2) shows that in the year 2019 there were 907 people prosecuted for failing to comply with conditions imposed on public assembly and public processions. This data reflects the current baseline scenario. As there is currently no evidence on how this number might change from the implementation of Option 2, several scenarios have been tested, based on different assumptions about the increase in conditions applied by the police. 52. Given the absence of specific data, reasonable assumptions have been made to form these scenarios. It has been assumed that the police will impose between 20 per cent and 50 per cent more conditions, as a result of Option 2, with a central estimate of a 35 per cent increase. This results in between 24 and 30 conditions, with a central estimate of 27 conditions. Considering that the existing number of conditions is 20, this means between 4 and 10 extra conditions as a result of this measure, with a central estimate of 7 new conditions. 53. Based on the 2019 HMICFRS data (which saw 907 prosecutions across an estimated 20 conditions), each condition results in an average of 43 prosecutions. Based on this, the total number of prosecutions to be tried in magistrates’ courts is estimated to lie in a range of 1088 and 1361, with a central estimate of 1224 per year. 54. As there are estimated to be a baseline number of prosecutions in Option 1 of 907, the number of additional cases to be heard in the magistrates’ court for one day lie in the range of 181 and 454, with a central estimate of 317 additional cases. When applying to the cost of a day in magistrates’ court, estimated by MoJ17 to be £1,473 (in 2023/2024 prices), the additional magistrates’ court cost lies in the range of £0.27 and £0.67 million, with a central estimate of £0.47 million per year. The total magistrates’ court cost lies in the range of £2.2 and £5.4 million (PV), with a central estimate of £3.8 million (PV) over 10 years.”

“What changes do the Regulations make? 14. The Regulations seek to correct current deficiencies in, and provide clarity to, the definition of “serious disruption to the life of a community” by: • Providing that serious disruption can include the cumulative impact of concurrent and repeated protests in the same area. • Referring to absolute disruption: that is, whether or not there may be disruption in an area regardless of the procession or assembly. We found this concept unclear; the Home Office told us that it is to “avoid the circumstances where deliberately disruptive acts are justified by the fact that certain forms of disruption [such as traffic jams] may occur regularly in an area when there are no protests”. • Stating that the definition of “community” can include persons affected by the protest and not just those who live or work in the vicinity of that procession or assembly. • Amending the list of examples provided by the 2022 Act to include where a protest may result in “the prevention of, or a hinderance that is more than minor to, the carrying out of day-to-day activities (including in particular the making of a journey)”. • Lowering the threshold for serious disruption from “significant” and “prolonged” to “more than minor”

“The Home Office responded that this was to ensure consistency across the statute book and to provide clarity to the police, the courts, and the public. Specifically, the Home Office referred to other amendments agreed by Parliament in the passage of the 2023 Act that defined serious disruption using the “more than minor” threshold, in relation to two new offences of ‘locking-on’ and ‘tunnelling’. The Home Office said, therefore, that it was trying to avoid a situation where “serious disruption” has different definitions in different areas of public order legislation. As mentioned above, the Home Office also stated that the “more than minor” threshold aligns with recent case law.”

“17. We accept that consistency across the statute book, and with case law, could be a desirable aim. However, the arguments about consistency were made prominently during the debate on the defeated amendments. It might, therefore, have been the House’s deliberate wish that different situations merit different thresholds. In addition, the Regulations contain elements other than the change in the threshold to “more than minor”; for example, that cumulative impact can result in serious disruption. In other words, the Regulations seek to introduce changes wider than would be necessary solely to create consistency within the statute book and no justification has been advanced for bringing back these wider changes. 18. As well as not justifying the substance of the provisions, the Home Office has not provided any reasons for bringing the measures back in the form of secondary legislation, which is subject to less scrutiny, so soon after they were rejected in primary legislation. We are not aware of any examples of this approach being taken in the past; the House may wish to verify this with the Minister. We believe this raises possible constitutional issues that the House may wish to consider.”

“Inadequate consultation 20. The EM stated that the Home Office had consulted a number of law enforcement bodies and National Highways, the body that looks after England’s major roads, when drawing up the policy. The Home Office told us its view was that “consulting those who would help ensure the Statutory Instrument would be operationally useful was most important”. 21. However, the Government’s own Consultation Principles state that departments should “consider the full range of people, business and voluntary bodies affected by the policy.”

“we find some of the definitions unclear and, therefore, unhelpful - something which, perhaps, could have been improved by a more comprehensive consultation.”

“23. Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside the scope of the statutory power pursuant to which it was purportedly made. In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned. Accordingly, when, as in this case, it is contended that actual or intended subordinate legislation is ultra vires, it is necessary for a court to determine the scope of the statutorily conferred power to make that legislation.”

“Unless the contrary intention appears, the legislature is presumed to intend an enactment to be read in the light of the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters).”

“37. The long-established recognition in the United Kingdom of the value of peaceful protest, echoed in Lord Hoffmann's remarks, is a manifestation of the importance attached by the common law to both the right to protest and free speech: see, e.g., Hubbard v Pitt [1976] 1 QB 142 at 174D and 178 per Lord Denning MR; Bonnard v Perryman [1891] 2 Ch 269 at 284 per Lord Coleridge CJ (sitting with Lord Esher MR. Lindley, Bowen and Lopes LJJ); McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277 at 297 per Lord Steyn; R v Shayler [2003] 1 AC 247 at [21] per Lord Bingham; Redmond-Blake v DPP [2000] HRLR at [20] per Sedley LJ. In a free society all must be able to hold and articulate views, especially views with which many disagree. Free speech is a hollow concept if one is only able to express "approved" or majoritarian views. It is the intolerant, the instinctively authoritarian, who shout down or worse supress views with which they disagree. 38. That importance of freedom of speech and freedom of association is reflected by the ECHR in articles 10 and 11, the first guaranteeing the right to freedom of expression, the second freedom of assembly. Both are qualified rights. Freedom of speech may be subject to "such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the prevention of disorder or crime, [or] for the protection of the reputation or rights of others." A similar, although not identical, qualification applies to article 11.”

“The Government's approach: balancing freedoms 1.7 The Government is in no doubt of the importance of the principles at issue in the review. The rights of peaceful protest and assembly are amongst our fundamental freedoms: they are numbered among the touchstones which distinguish a free society from a totalitarian one. Throughout the review the Government has been concerned to regulate these freedoms to the minimum extent necessary to preserve order and protect the rights of others. 1.8 For these freedoms, although fundamental, are not one-sided: the European Convention on Human Rights, in the Article guaranteeing the right to freedom of peaceful assembly, recognises that it may need to be restricted by law for the prevention of disorder and for the protection of the rights and freedoms of others. It is worth remembering, 50 years after the passage of the Public Order Act 1936, why that Act was considered necessary: because the right to demonstrate had been turned by the Fascist marchers into an instrument of intimidation and provocation. They have their counterparts today in those whose real aim in demonstrating is not to persuade others of their point of view, but to prevent them by force from doing what they have a lawful right to do, or simply to ferment disorder. The Government has been concerned in the review to ensure that the law provides the police with adequate powers to deal with disorder, or where possible to prevent it before it occurs, in order to protect the rights and freedoms of the wider community.”

“What amounts to professional misconduct has been considered by the Privy Council in a number of cases. I suppose perhaps the most recent observation is that of Lord Clyde in Rylands v General Medical Council [1999] Lloyd's Rep Med 139 at 149, where he described it as "a falling short by omission or commission of the standards of conduct expected among medical practitioners, “and such falling short must be serious". The adjective "serious" must be given its proper weight, and in other contexts there has been reference to conduct which would be regarded as deplorable by fellow practitioners. It is of course possible for negligent conduct to amount to serious professional misconduct, but the negligence must be to a high degree.”

“The use of the word ‘serious’ obviously distinguishes the statutory test from the common law as stated in Thornton. The threshold identified in Thornton was that a statement should ‘substantially’ affect attitudes in an adverse way […]”

“38. Where, however, as here, there are two identifiable and different senses in which the expression in question may be used, the potential for inconsistent usage may need to be reduced. The existence of the two senses of the word “substantially” identified above means that the law should, in relation to diminished responsibility, be clear which sense is being employed. If it is not, there is, first, a risk of trials being distracted into semantic arguments between the two. Secondly, there is a risk that different juries may apply different senses. Thirdly, medical evidence (nearly always forensic psychiatric evidence) has always been a practical necessity where the issue is diminished responsibility. If anything, the 2009 changes to the law have emphasised this necessity by tying the partial defence more clearly to a recognised medical condition, although in practice this was always required. Although it is for the jury, and not for the doctors, to determine whether the partial defence is made out, and this important difference of function is well recognised by responsible forensic psychiatrists, it is inevitable that they may express an opinion as to whether the impairment was or was not substantial, and if they do not do so in their reports, as commonly many do, they may be asked about it in oral evidence. It is therefore important that if they use the expression, they do so in the sense in which it is used by the courts. If there is doubt about the sense in which they have used it, their reports may be misunderstood and decisions made upon them falsified, and much time at trials is likely to be taken up unnecessarily by cross examination on the semantic question. The experience of R v Brown (supra at paras 24 and 33) underlines the need for clarification.”

“The sense in which substantially impaired is used in relation to diminished responsibility is, for the reasons set out above, the second of the two senses. It is not synonymous with ‘anything more than merely trivial impairment’.”

“The enabling provisions contain no limitation on the power to amend the meaning of ‘serious disruption’ of the kind contended for. The scope of the enabling provisions is a matter of interpretation of the primary legislation in which they sit. There is no express limitation to that effect; and there is no valid process of interpretation which would enable such a limitation to be implied. If Parliament had intended to create such a limitation, it is inconceivable that it would not have made that expressly clear.”

“As to the enabling provisions relating to ‘serious disruption’, first, they contain no limitation on the power of the Secretary of State to present to Parliament, or of Parliament by affirmative resolution to approve, Regulations amending/defining etc the meaning of ‘serious disruption’. Instead, Parliament set the scope of the enabling power simply by reference to the need for the Regulations to be “making provision about the meaning for the purposes of this section” of the concept of serious disruption to the life of the community. It was thus open to the Secretary of State (and Parliament) to legislate for a more or less broad view of serious disruption of that type. How broad that view should be is a matter of legislative judgement – a judgement which Parliament ensured, in the enabling provisions, should be positively approved by itself.”

“A meaning cannot be adopted that those words are incapable of bearing. But that is plainly not this case. There is no other limitation to the power.”

“18. No doubt, the Secretary of State cannot thereby purport to give the phrase “serious disruption to the life of the community” a meaning that it cannot properly or linguistically have. However, the power to define and clarify its scope is a broad one because it is an inherently broad phrase. The approach taken in the Regulations is one that was properly open to the Secretary of State and well within the scope of the powers conferred.”

“25…. When a court is considering the validity of a statutory instrument made under a Henry VIII power, its role in upholding Parliamentary supremacy is particularly striking, as the statutory instrument will be purporting to vary primary legislation passed into law by Parliament.”

"… as with all delegated powers the only rule for construction is to test each proposed exercise by reference to whether or not it is within the class of action that Parliament must have contemplated when delegating. Although Henry VIII powers are often cast in very wide terms, the more general the words by Parliament to delegate a power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature's contemplation."

“Where there are different statutes in pari materia, though made at different times, or even expired and not referring to each other, they shall be taken and construed together as one system and as explained explanatory of each other”

“It is however necessary to remain realistic”

“It might, therefore, have been the House’s deliberate wish that different situations merit different thresholds.”

“Parliament (comprising the House of Lords and the House of Commons) approved the Regulations following debate.”

“Any definition created through this power will need to fall within what can reasonably be understood as “serious disruption”

“Unlike the amendment that was rejected only by the House of Lords following debate in that House, the Regulations were approved following debate by the House of Commons on 12 June 2023, which approved the Regulations by 277 votes to 217. On 13 June 2023, also following debate, the House of Lords approved the Regulations by 177 votes to 141. A motion to decline to approve the Regulations due to the previous consideration and rejection of the provisions during debate on primary legislation in the House of Lords was resoundingly rejected by 154 to 68 votes. Parliament has thus expressed its will very clearly in approving the Regulations.”

“Despite being subject to ostensibly greater scrutiny than those subject to the negative procedure, affirmative procedure statutory instruments are all also virtually never voted down. Between 1950 and 2014, the Commons rejected 5 affirmative procedure statutory instruments, most recently in 1978. In the same period the Lords rejected only four, most recently in 2012”

“In basic terms, the abridged procedures by which proposed statutory instruments are made mean that they are subject to far less scrutiny than proposed primary legislation. In a 2021 report, the House of Lords SLSC expressed concern over an “absence of robust procedures enabling effective parliamentary scrutiny” and concluded: “…the more that is left to secondary legislation, the greater the democratic deficit because, in contrast to primary legislation, there is relatively scant effective parliamentary scrutiny of secondary legislation; it cannot be amended; in some cases, it may become law without any parliamentary debate; and, because the decision to accept or reject is all or nothing, very rarely will the Houses reject it.”

“Successive governments have proposed primary legislation containing broad and poorly-defined delegated powers, including Henry VIII powers, that give wide discretion to ministers—often with few indications as to how those powers should be used. This Committee and others have noted a trend whereby delegated legislation has increasingly been used to address issues of policy and principle, rather than to manage administrative and technical changes. The reasons for this are clear. Delegated legislation cannot be amended, so there is little scope for compromise. Far less time is spent by Parliament debating delegated legislation than primary legislation, and there is little incentive for members of either House, but particularly the House of Commons, to spend their precious time debating legislation that they cannot change. Finally, established practice is that the House of Lords does not vote down delegated legislation except in exceptional circumstances. The result is that the Government can pass legislative proposals with greater ease and with less scrutiny where they are able to do so through secondary, rather than primary, legislation. These developments have strengthened the Executive at the expense of Parliament’s legislative authority.”

“22. Although they can be said to have been approved by Parliament, draft statutory instruments, even those subject to the affirmative resolution procedure, are not subject to the same legislative scrutiny as bills; and, unlike bills, they cannot be amended by Parliament. Accordingly, it is well established that, unlike statutes, the lawfulness of statutory instruments (like other subordinate legislation) can be challenged in court. As Lord Diplock said in F Hoffmann-La Roche & Co v Secretary of State for Trade and Industry [1975] AC 295, 365, "even though [subordinate legislation] is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament, ... I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the ... Act of Parliament under which the order [was] purported to be made ...".”

“The decision to make the Regulations represents an attempt to frustrate or circumvent Parliament’s view on this issue”

“… Parliament’s view as to the appropriate circumstances in which individual citizens may be made subject to penal sanction and thereby bypasses the statutory protections to which citizens would otherwise be entitled to rely.”

“The Defendant’s detailed grounds, §27, state that the Defendant set out such a justification during the debate in the House of Commons on 12th June 2023. Even if those remarks were admissible, they simply repeated the Defendant’s view on the advantages of the substantive amendments that would be made by the Regulations. If that were sufficient by way of justification, that would be tantamount to saying that a Minister is entitled to exercise a Henry VIII power to override the previously expressed will of Parliament whenever s/he disagrees with it. That cannot be the standard. It was not sufficient for the Attorney General to say in Evans that he disagreed with the view of the Upper Tribunal. It was not sufficient for the Prime Minister in Miller 2 to say that he considered it appropriate to prorogue Parliament at the time and for the duration which he did.”

“… the will of Parliament finds expression solely in the legislation which it enacts”

“34. … will not offend against the separation of powers. As we have just indicated, the court will be performing its proper function under our constitution. Indeed, by ensuring that the Government does not use the power of prorogation unlawfully with the effect of preventing Parliament from carrying out its proper functions, the court will be giving effect to the separation of powers.”

“Parliament does not decide when it should be prorogued”

“38. In principle, if not always in practice, it is relatively straightforward to determine the limits of a statutory power, since the power is defined by the text of the statute. Since a prerogative power is not constituted by any document, determining its limits is less straightforward. Nevertheless, every prerogative power has its limits, and it is the function of the court to determine, when necessary, where they lie. Since the power is recognised by the common law, and has to be compatible with common law principles, those principles may illuminate where its boundaries lie. In particular, the boundaries of a prerogative power relating to the operation of Parliament are likely to be illuminated, and indeed determined, by the fundamental principles of our constitutional law.”

“Freedom of Speech. That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

“Article 9 is a provision of the highest constitutional importance and should not be narrowly construed”

“The decision to make the Regulations was vitiated by a one-sided, unfair consultation which preceded it. The Defendant voluntarily embarked upon a process of consultation about the contents and drafting of the Regulations but then only consulted a narrow group of stakeholders in support of the amendments rather than an even-handed group representative of all those whose interests may be adversely impacted.”

“16. The policy solution was to introduce a measure to amend the meaning of "serious disruption to the life of the community" in sections 12 and 14 of the Public Order Act 1986 via the Public Order Bill (that was then at report stage in the House of Lords). Some steps had already been taken to achieve this in July 2022, as outlined above. The possibility of amending the definition by way of Statutory Instrument pursuant to the powers contained in the Police, Crime, Sentencing and Courts Act 2022 was also left on the table. 17. The PPU sent policy instructions to HOLA [Home Office Legal Advisers] on 6 December 2022. These instructions were copied to various stakeholders at the Metropolitan Police, Staffordshire Police, Essex Police, the NPCC and the College of Policing ("Police Bodies"). The Metropolitan Police Service is the force with the most experience of policing protests, while the Chief Constables of Staffordshire and Essex are the leads for the NPCC on protest and on public order & safety, respectively. 18. There followed a meeting with the Police Bodies on 7 December 2022. Many of those present also attended the Roundtable. According to the agenda, the aim of the meeting was to outline the legislative procedures involved and obtain policing views on the policy instructions. It should be stressed at this juncture that engaging with policing stakeholders in this manner is routine for policy officials when dealing with any specific policy area that may affect operational policing …. . 19. On 12 December 2022 HOLA instructed the Office of the Parliamentary Council ("OPC"). The instructions were shared with Essex Police on 20 December. 20. On 14 December 2022 officials received a first draft of the amended sections 12 and 13 of the Public Order Act from the OPC, and a letter with questions about the wording and general appropriateness of the clauses in considering the policy intent. 21. On 15 December 2022, the draft provisions were circulated to the Police Bodies to gain an operational view on how the measures would be interpreted and used by police. Input was requested "from a police perspective" and the Police Bodies were asked a number of questions aimed primarily at ascertaining the practical impact of the proposed changes at an operational level. As with the meeting on 7 December, this type of engagement is not indicative of a consultation and is routine among officials when handling policy matters that will have a material impact on policing. 22. The National Police Chiefs Council and the Metropolitan Police sent a joint response which outlined their view on the wording of the draft provisions on 21 December 2022. …. . 23. In January an 'Engagement and Handling Plan' for the Serious Disruption provisions was circulated. The handling plan made it clear that officials would continue engaging with NPCC and other Government Departments in regard to the new provisions. Officials used the term "engagement" because it was clear that they did not undertake a formal consultation. …. . …. 24. On 7 February 2023 the Government amendment to the Public Order Bill, which would have amended the definition of "serious disruption to the life of the Community" within sections 12 and 14 of the Public Order Act 1986, was defeated in the House of Lords … 25. Following this, a policy decision was made to amend the definition of serious disruption via secondary legislation, through the use of delegated powers, using the same clauses that were tabled as an amendment to the Public Order Bill with the exception of the blanket provisions conditions. 26. The commission was urgent as the government wanted to deal with protest-related serious disruption swiftly given the regular impact on the public and the forthcoming King's coronation. Due to these time factors, PPU had to arrange for the SI to be laid as soon as possible. 27. The Parliamentary Handling Plan outlined, amongst other things, the purpose of the regulations, the justification for the regulations, and the engagement that had taken place. … 28. There was no re-engagement with stakeholders prior to or during the passage of the regulations … .”

“10.1 The National Police Chiefs Council, the Metropolitan Police Service, the Police and Crime Commissioners of the police forces whose areas include the M25, and National Highways were consulted on how to improve the response to highly disruptive protests at a roundtable chaired by the Prime Minister. 10.2 Both the National Police Chiefs Council and the Metropolitan Police Service welcomed a commitment to bring further clarity to the meaning of “serious disruption to the life of the community”

“10.1 A full consultation was not necessary as the provisions in this instrument serve to clarify existing police powers and do not create new powers or criminal offences. Instead, targeted engagement with operational leads was held.”

“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: R v Brent London Borough Council, Ex p. Gunning (1985) 84 LGR 168.”

“… Contact with interest groups (or ‘stakeholders’, I think it is, given the modem spin) is the very warp and woof of democratic government; it is central to decision making. It means that Government is better informed of the implications of the different options, and will more likely to be made aware of potential pitfalls, political or otherwise, which the decision may create. But it cannot be the case that every time a minister deals with one group, he or she must hold a similar meeting with a group holding the opposite view. It must be for Government to decide what information it requires, and from what source and at what time, in order to facilitate its decision making. If the Government decides to enter into a formal consultation process, that exercise must satisfy the Gunning requirements if it is to be fair and meaningful. But, in my view, a court cannot justifiably infer that a minister has entered into a consultation exercise merely because a decision is taken after a meeting with a particular interest group, even where representations from that group have, in fact, proved decisive. The purpose of the meeting may have been to clarify a particular matter, or to gauge the strength of the group's opposition to a proposed decision, or simply so that the Government will be able to trumpet that group's support for the decision when it was announced. None of this could remotely be said to amount to consultation with all the baggage inherent in that process.”

“that there is a proposal to make a decision, which, while not inchoate, is at a sufficiently formative stage that the views of those consulted might influence it. But the second assumption, which sheds light on what is meant by formative stage in this context, is that the proposal has crystallised sufficiently that the public authority also knows what the proposed decision may be, and is able to explain why it might make that proposed decision, in enough detail to enable consultees to respond intelligently to that proposed course of action.”

“I agree with the judgment of Elisabeth Laing LJ. In particular I agree with her that the Gunning criteria only apply where a public authority is proposing to make a specific decision which is likely to have a direct (usually adverse) impact on a person or on a defined group of people. The proposal must be at a sufficiently formative stage that the views of those consulted might influence it, but also must have crystallised sufficiently that the public authority knows what the proposed decision might be, and can explain it in enough detail to enable consultees to respond intelligently to the proposed course of action.”

“I do not accept the submission that a decision-maker can routinely pick and choose whom he will consult. A fair consultation requires fairness in deciding whom to consult as well as fairness in deciding the subject matter of the consultation and its timing. The Buckinghamshire case was in a different statutory context in which it was decided that the local authority need not be consulted. No general principle that it is for the decision-maker alone to decide whom to consult can be extracted from that decision.”

“I infer, and I am satisfied, that the Secretary of State consulted such representatives of local authorities and such local authorities as appeared to him to him to be appropriate; and that there is no basis for suggesting that he was irrational in this connection.”

“This case supports the proposition that there may be circumstances where a selective consultation exercise will render a decision taken pursuant to it unlawful. I do not understand the Secretary of State to contend otherwise. His submission is that there never was a consultation exercise.”

“… doubtful that Baker LJ [in Article 39] was intending to identify irrationality as the only basis on which there may be a challenge to a failure to include a party in a consultation process at common law … The proposition that, at common law, it is for the decision maker alone to decide whom to consult was rejected in R (Milton Keynes Council) v Secretary of State for Communities and Local Government… .”