R (on the application of British Dental Association) v General Dental Council [2014] EWHC 4311 (Admin)

Key Points

  • Although the General Dental Council (GDC) (the Defendant) was not required by fairness to undertake a consultation, the British Dental Association (BDA) (the Claimant) had a legitimate expectation that a transparent consultation would be carried out as a result of promises made publicly by the GDC.
  • The Court found the consultation to be unlawful because the claimants were given insufficient information to be able to make an informed response to the GDC's proposals. 
  • Although the claimants were successful, the Court chose not to quash the GDC's decision because the defendant had acted in the public interest.

Background

Under English law, a public body may have a duty to consult before taking a particular decision. This duty may be explicitly required by statute, but it may also arise in cases where the impact and nature of the decision being taken means that consultation is required by the common law. Additionally, such a duty can arise where a public body has made a promise to consult on a specific decision or type of decision.

Where there is a duty to consult, the consultation must be lawful. Generally a public body has a wide discretion in relation to what elements of a decision should be consulted on, and the format that the consultation takes, unless a process is specified by legislation. However, the level of consultation must satisfy the general requirement of fairness. Where a consultation is flawed the court has the power to quash the decision resulting from that consultation and require the consultation to be repeated. A public body may also be required to re-consult in circumstances where the proposal consulted upon has changed fundamentally since the consultation.

Facts

The BDA is a registered trade union that represents nearly half of the dentists in the United Kingdom. The GDC is a statutory body established to regulate dentists and dental care professionals.

The GDC's annual retention fee amounts to an annual practising fee, and is required to be paid (at separate rates) by both dentists and dental care professionals. The fee equates to almost all of the GDC's funding.

Following a 2014 consultation on its "Annual Retention Fees Policy", the GDC noted in its policy document that an area it needed to keep under review was transparency in providing financial information. It also released a statement that it would "provide more detail in the different aspects of the Fitness to Practise process" in "the forthcoming consultation document on the Annual Retention Fee Level for 2015".

The BDA challenged the decision by the GDC of 30 October 2014 to set its annual retention fee for 2015 for dentists at £890 on the basis that there had been a failure properly to consult on the fee increase, and also that there had been a failure to re-consult after certain changes were made following the consultation period.

High Court Decision

The BDA argued that fairness demanded that the GDC give sufficient information on the annual retention fee to consultees to test the validity of the proposed increase, and that insufficient information was provided by the GDC despite its policy promise to be transparent. In particular, the BDA said that there was insufficient explanation of the projection by the GDC that the number of fitness to practise hearings (the main drain on the GDC's funding) would rise exponentially by comparison with the rise in the number of initial complaints.

The Court found that the common law duty of fairness did not impose a duty to consult on the decision regarding the fee. This was because the impact on the individual consultee was a monetary one, and that it amounted to either £251.20 or £188.40 per annum net of tax, which was not profound. However, the Court said that there was a legitimate expectation that the GDC would consult on this particular decision. This was because the GDC had made a specific public announcement committing itself to transparent consultation.

Cranston J said that to his mind "specific public announcements such as this give rise to a legitimate expectation among registrants that a transparent consultation would be conducted. A transparent consultation meant that consultees had to be put in a position to test the validity of the assumptions purporting to underlie the suggested fee increase, and why alternatives had been rejected, and to enable consultees to make an informed and intelligent response and, if minded to do so, propose alternatives". He added that in order for the consultation to be fair there was a need to "provide enough information to the consultees to enable them to test the robustness or reliability of the model behind what was being presented".

On this basis, Cranston J found that there had been a "gaping hole" in the contested consultation because there was "a lack of any explanation as to the assumption that an increase in complaints would translate into such a substantially increased number of fitness to practise hearings requiring an extra £18million funding". Hence, the consultation was unlawful.

However, the Court held that there had not been a need to re-consult after the consultation period because there was no fundamental change to the proposal that meant it was "conspicuously unfair" not to re-consult. Cranston J noted that as much as there was a change it was a change to lessen the increase to the fee, which was to the registrants' benefit.

Although the Court held that the consultation was clearly unlawful, it declined to quash the consultation, or the Regulations imposing the new fee, because the GDC had acted in the public interest and needed to fulfil its duties.

Comment

This case demonstrates the reluctance of the Courts to find that consultation is required by the common law duty of fairness except in exceptional circumstances. The courts will look at the impact on individual consultees and a small monetary impact will not suffice. However, the judgment also illustrates that the Courts are open to finding that there is a legitimate expectation of consultation where public announcements committing to such a consultation are made, and also will take this into account if any promise is made as to the extent or type of consultation to be undertaken. Finally, it shows the practical approach of the Courts to relief granted under judicial review in respect of a flawed consultation process. If the impact of the flaw on the individual consultees is not profound and the public body concerned has acted in the public interest then it does not automatically follow that the final decision will be quashed.