In the recent case of R (on the application of Greenpeace Limited) v Secretary of State for Trade and Industry [2007] EWHC 311, the High Court emphasised the overriding need for fairness in government consultations on important policy issues. The Court held that the consultation process leading to the Government's decision to support "nuclear new build" as part of the Energy Review was procedurally flawed, and that Greenpeace had a legitimate expectation in public law that it would be consulted in accordance with the Government's stated policies. Although the judgment is unique to its particular facts, it is a good example of the way in which the Courts are prepared to intervene where important policy issues are in play, and where the Government strays from its promise to consult in accordance with its stated polices and accepted procedures.

Background

The judicial review arose from the Government's statement in the "Energy White Paper" published in 2003 that it did not propose to support nuclear new build at that time, but would keep the option open. It also stated that "before any decision to proceed with the building of new nuclear power stations, there would need to be the fullest public consultation and the publication of a white paper setting out the Government's proposals."

The Government issued a consultation document in January 2006 (the "Energy Review Consultation"), and in July 2006 announced a policy decision in favour of nuclear new build as part of the UK's future energy mix.

Greenpeace applied for an order quashing that policy decision on the grounds that the consultation process leading to the decision was procedurally flawed, and that it had a legitimate expectation to be consulted in full given the statements made by the Government in the Energy White Paper.

Greenpeace's arguments

Greenpeace argued that the Energy Review Consultation was not "the fullest public consultation" as promised by the 2003 White Paper, and that it had failed to ask the appropriate questions and consult on issues relevant to new nuclear build on the most basic level. It was also argued that the Energy Review Consultation was merely an "issues paper" which was wholly inadequate for its purpose, and that key decisions had been taken before the publication of reports which were relevant to the final decision to be taken. Finally, Greenpeace also submitted that the Government had failed adequately to consult on the economics and costs issues related to nuclear new build.

The Government's response

The Government maintained that its promise of the "fullest public consultation" had been met, and that the decision to endorse nuclear new build was a foreseeable result of the consultative process. Moreover, the Government argued that it was neither unusual nor unfair for the Government to take into account information which emerged during or after the consultation period, and that technically there was no obligation on Government to consult on the issue other than the promise made in the 2003 White Paper.

The decision

Mr Justice Sullivan held that in making a promise in the 2003 Energy White Paper to engage in "the fullest public consultation", the Government had made a promise to the public which it was now bound to fulfil – it had created a legitimate expectation which it could not now breach.

Although the Government did not raise the issue of justiciability (i.e. whether the policy decision was capable of being challenged by judicial review) directly in the proceedings, Mr Justice Sullivan considered it briefly as the Government had reserved the right to raise it in the event of any appeal. Sullivan J commented that, given that the promise to consult was made at the highest level, "it would be curious…if the law was not able to require the Government to honour it, absent any good reason to resile from it."

Importantly, the Court rejected the Government's submission that the Court should be slow to intervene in respect of such a "high level, strategic policy document" because Parliament itself was entitled to consider both the merits of the policy and the fairness of the process by which it had been arrived at. The judge considered several cases where the Courts have looked at this issue, including R (London Borough of Wandsworth and others) v Secretary of State for Transport [2005] EWHC 20, the "Airports White Paper case"; and R (Edwards and Others) v Environment Agency and others [2006] EWCA Civ 877, where the Court of Appeal recognised the "overriding need for fairness in any consultation process." The Court drew a distinction between the Airports White Paper case and the Energy Review Consultation, in that (in the Airports White Paper case) the "information provided to consultees as part of the consultation exercise was truly immense" and despite information being made available after the consultation had ended, it was information additional "to the very detailed analyses that were already available to consultees".

For these reasons the judge concluded that, even applying the high threshold test as put forward by the Government, something had indeed gone "clearly and radically wrong."

Comment

The Court granted permission for the Government to appeal, however the Secretary of State has since confirmed that he does not intend to do so. This decision is perhaps surprising given the wider implications for government policy initiatives. However, in the particular context of the Government's wishing to implement its energy policy without the uncertainty and delay of further legal proceedings, it is understandable.

The case does demonstrate the increasing willingness by the Courts to intervene in matters of "high policy", and emphasises the overriding need for fairness in the consultation process. The judgment also reveals the extent to which the Courts will scrutinise the consultative process to ensure that promises are met. However to some extent it is unique to its own particular facts and the particularly broad and unequivocal representation made by the Government at an early stage in the consultative process.

The case is also a good example of the potential scope of public law claims based on legitimate expectation at the "White Paper" stage in the formulation of Government policy. Civil servants across Whitehall will be wary before making such clear and unequivocal statements in the future, and will be alive to the need to construct consultation processes in a way which minimises the risk of future challenge.