A lecture by Andrew Sharland
4-5 Gray's Inn Square
This lecture will address various public law issues that are of general relevance to education law practitioners.
Consultation issues regularly arise in the education context most often in relation to school reorganisation issues and changes in policies such as a local authority's transport policy. Whilst the law is relatively well established both local and central government regularly fall foul of the requirements. Lord Woolf MR in R v North & East Devon Health Authority, ex parte Coughlan  QB 213 stated:
"It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. 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."
Additionally the decision making process as a whole including the consultation process must be procedurally fair. Thus, if, during the decision-making process following consultation, some important issue arises that was not the subject of consultation fairness may demand that the consultees concerned should be given an opportunity to deal with it, see R (Edwards and others) v Environment Agency and others  EWCA Civ 877.
Public authorities have a broad discretion as to how they carry out the consultation process. With the benefit of hindsight it will almost always be possible to suggest ways in which a consultation exercise might have been improved upon. It is usually not enough that something went wrong with the consultation but that something went "clearly and radically wrong", see Sullivan J in R (Greenpeace Ltd) v Secretary of State for Trade and Industry  EWHC 311 (Admin) at paragraphs 62-3.
Issues to look out for include:
1 Is there an express or implied duty to consult;
2 If there is no statutory duty to consult, has past practice given rise to an expectation of consultation, see R (Bapio) v Secretaries of State for the Home Department and for Health  EWHC 199 (Admin);
3 Have any representations been made about the extent of consultation, eg "the fullest public consultation", see R (Greenpeace Ltd) v Secretary of State for Trade and Industry  EWHC 311 (Admin);
4 Does the statutory duty place any particular requirements on the body, eg in school reorganisations the duty to have regard to Ministerial guidance under section 28 and 29 School Standards and Framework Act 1998, see R (Parents for Legal Action Ltd) v Northumberland CC  EWHC 1081 (Admin) at para 30;
5 Is the decision making process fair.
In the education context various bodies are required to provide reasons or grounds for their decisions, eg Independent Appeals Panels for both admissions1 and exclusions2 (duty to state grounds) and the SENDIST3 (duty to give summary reasons). The Administrative Court, after initial resistance, has tended to treat the duty to state grounds as akin to a duty to give reasons. The Courts are increasingly requiring more detailed reasoning, see eg W v Leeds City Council & SENDIST  617 at paras 53 to 54 (SENDIST) and R (Reading BC) v Admissions Appeal for Reading BC and 15 parents  EWHC 2378 (admissions IAPs). This trend had been encouraged by guidance in the exclusions and admissions context that imposes a far heavier requirement on the decision maker than the regulations.
See Subparagraph 1 (8) of Schedule 2 to the Education (Admissions Appeals Arrangements) (England) Regulations 2002
See Paragraph 14 of the Schedule to the Education (Pupil Exclusions and Appeals) (Maintained Schools) (England) Regulations
33 Regulation 36 (2) Special Educational Needs Tribunal Regulations 2001 4
eg paragraph 133 of the Secretary of State's exclusions guidance entitled "Improving Behaviour and Attendance: Guidance on Exclusion from Schools and Pupil Referral Units."
Often, IAP decision letters are inadequate particularly where complex issues such as disability discrimination are raised. To avoid challenges great care should be taken with them. They must set out the main arguments advanced by the parties and set out the conclusions reached on the main issues in dispute. Ideally, the letter should expressly refer to the relevant guidance. The Chair of the IAP must read any letter to make sure that it accords with the reasons of the panel. Clerks should take detailed notes of the deliberations as well as the hearing itself.
If the reasons provided by the decision maker are inadequate the question arises whether the earlier faulty reasons can be cured by subsequent reasons. The answer to this question is far from simple.
This issue was considered by Laws J in the exclusions context in R v Northamptonshire CC ex parte W  ELR 291 where he stated at p299 H:
"There are some classes of case in which the adequacy of the reasons is itself made a condition of the legality of the decision. In such instances, later evidence giving a proper explanation of the reasons by definition cannot cure the legal defect which would arise if the original reasons were inadequate. But this is not such a case, and Mr Clayton does not contend to the contrary."
Laws J then went on to admit the affidavit even though it had been sworn six months after the decision. In R (Nash) v Chelsea College of Art & Design)  EWHC Admin 538 Stanley Burnton J set out the following principles at paragraphs 34-36:
"34(i) Where there is a statutory duty to give reasons as part of the notification of the decision, so that (as Law J put it in Northamptonshire County Council ex p D) "the adequacy of the reasons is itself made a condition of the legality of the decision", only in exceptional circumstances if at all will the Court accept subsequent evidence of the reasons.
(ii) In other cases, the Court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:
(a) Whether the new reasons are consistent with the original reasons.
(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.
(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).
(d) The delay before the later reasons were put forward.
(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly.
School Closures - Some Legal Definitions
"From what you say, it appears the consultation process was flawed. It is well established that '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 and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals."
This is the summary given by Mr.Justice Mann in R v Coventry City Council, ex parte Newborn(26th September 1985) of Mr.Justice Hodgson's decision in R v Brent London Borough Council, ex parte Gunning, reported in The Times on 30th April 1995.
Mr.Justice Mann added that he 'would respectfully agree with Mr.Justice Webber's observations in R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities, who, in that case, said:
In any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice, in this context, I mean sufficiently informed and considered information or advice about aspects of the form or substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer."
At the time that these cases were decided the requirements for consultation was established by "Judge-made law." Since then consultation has been enshrined in statute - see the duty of the LEA to consult appropriate persons under Section 35 of the Education Act 1996, in relation to the establishment, alteration etc. of schools. Parents are not given a statutory right to be consulted but, to the extent necessary in the interests of fairness, a legitimate 'expectation that they will be given as fair opportunity constructively to criticise the proposal, and to express their own preference in relation to it." (Mr.Justice Webster R v Sutton London Borough Council, ex parte Hamlet, 26th March 1996.)
In relation to school closure proposals, see Section 167 of the Education Act 1996. Section 167(4) provides as follows:
'(4) Before publishing any proposals under this section the local education authority shall consult such persons as appear to them to be appropriate; and in discharging their duty under this subsection the authority shall have regard to any guidance give from time to time by the Secretary of State.' The relevant guidance is to be found in DFE Circular 23/94, paragraphs 67 to 69. The references to the 1993 Act are superseded in that this Act has been subsumed into the 1996 Act.
There is one other relevant aspect to the question of consultation. If the consultation with parents and others was on the basis that 'there will be' or 'there will probably be' a new school building: and if the information that there is not, after all, to be a new building was not fully communicated to consultees a reasonable time before the end of the consultation period, then there is judicial authority for the proposition that the consultation period should be extended.
In R v Norfolk County Council, ex parte Coulten, Mr.Justice Nolan said: "I do not accept that the publication of section 12 proposals necessarily puts an end to the requisite consultation process. If some subsequent event shows that the consultations had been based on a fundamental mistake or misunderstanding it would be absurd to regard them as having fulfilled their intended purpose and absurd, accordingly,, to say that they could not be re-opened."
(Later legislation needs also to be seen agains these earlier judgements that set useful principles to test ratiionality and fairness : NASS 2002)