The Court of Appeal decision in R (on the application of Article 39) v Secretary of State for Education [2020] EWCA Civ 1577, is a timely reminder of not only the importance of consultation to inform decisions when public authorities are considering changes to the way things are done but also the need to get consultation legally right to avoid putting the final decision at risk of challenge.

A duty to consult may arise under statute - specifically in the case of certain functions and more generally when considering compliance with other duties, such as the Public Sector Equality Duty.

Even if an express statutory obligation to consult has not arisen, an implied duty can arise in certain circumstances, including where the authority has promised to consult, previously consulted on the particular type of decision or having regard to the impact of the changes.

Whether a duty to consult arises or an authority voluntarily decides to consult, authorities must ensure that the consultation is carried out properly and fairly.

As the long term effects of the pandemic, Brexit and other matters continue to crystallise, difficult decisions about how public services are funded and delivered will need to be made.  We wait to see what the spending review has to offer today. In all of this, there will be more consultations to come at all levels of government.