R (on the application of article 39) V Secretary of State for Education (2020)

A recent case on the lawfulness of the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the regulations) may give some insight into how the courts will approach regulations made to address the COVID-19 pandemic and, in particular, the duty to consult in the context of a national crisis.

Background to the case

The regulations were created as a temporary measure to protect the needs of looked-after children in the context of the COVID-19 pandemic. Article 39, a charity supporting children in institutional settings, brought a judicial review challenging the regulations saying that they undermined statutory protections for looked-after children, they were disproportionate and that there had been a failure to consult. The Secretary of State had consulted 20 local authorities, Ofsted and the Care Quality Commission but not the Office of the Children’s Commissioner. It was Article 39’s view that the Children’s Commissioner and representatives of children’s rights groups (the Group).

High Court

In the High Court case, the Government won. Lieven J emphasised in her judgment that the Secretary of State faced an unprecedented situation at the start of lockdown, and that his decisions had to be understood in that context. The Scientific Group for Emergencies (SAGE) had advised the government to plan for all eventualities and the Secretary of State had prepared for a realistic worst case scenario of significant numbers of absences (between 35% and 41%) of social workers from work. Although that rate of absence did not arise in practice, the fairness of the consultation had to be considered in light of the advice the Secretary of State had received and the worst case scenario planned for. Other important factors were that the sector was operating below optimum staffing levels even prior to pandemic and the risks to the welfare of foster carers, who are more likely to be older and more vulnerable to the virus as a result.

The court found that the duty to consult was context-specific. In this case it was the Secretary of State’s statutory duty to consult such persons as he considered appropriate. In normal times he would have been duty bound to consult the Children’s Commissioner the Group – but these were not normal times.

Although there was no clear explanation as to why the Group was not consulted, there was no evidence of a decision not to consult and, given the context, the failure did not amount to an error of law. The Secretary of State’s intention was to promote the welfare of looked-after children and his plans to carry out that intention were not irrational. It was also relevant that guidance provided that the flexibility offered by the regulations should only be used where strictly necessary, the amendments took effect for six months and were subject to review.

Court of Appeal

At the Court of Appeal, Article 39’s appeal succeeded.

The Secretary of State argued that he had no duty to consult the Group and it was a rational decision to focus on service-providers.

The Court of Appeal found that the statutory duty to consult arose in 3 ways:

• under s.22(9) of the Care Standards Act 2000 to consult “any persons he considers appropriate”, in light of both the scope of the amendments, and the fact that the Secretary of State had consulted, it was irrational not to consult the Group;
• there was an established practice of consulting the Group when regulatory changes of this sort were made; and
• there was a fairness duty due to the potential impact of the amendments on vulnerable children.

The Court accepted that a shorter, more informal consultation process (by e-mail) was an appropriate substitute for a more complete process in the circumstances. However, that was not a reason not to consult with the Group. Once the Secretary of State had chosen to consult, its consultation had to be done fairly and properly (i.e. as far as possible in line with normal practices) and any departures should be well-justified.

What can we take from the case?

The Court of Appeal Judgment reasserts the continuing applicability of the basic principles of consultation. If it is being done, it must be done properly and fairly. Even in a pandemic, consultors should attempt to consult a broad range of viewpoints.