Article by Jonathan Lewis – Coronavirus (COVID-19) pandemic does not automatically extinguish a duty to consult

Lexis Nexis Public Law analysis written by Jonathan Lewis.

The Secretary of State for Education (the SS) introduced the Adoption and Children (Coronavirus) (Amendment) Regulations 2020 (the Amendment Regulations) in response to the outbreak of the coronavirus (COVID-19) pandemic. They temporarily amended ten sets of regulations related to children’s social care to help local authorities, services and providers manage the coronavirus outbreak. They were said to ensure that children’s social care providers and local authorities had sufficient flexibility to respond to coronavirus while still maintaining safe and effective care. Article 39, a registered charity, challenged the lawfulness of the Amendment Regulations on the basis that the SS had failed adequately to consult with various bodies representing the interests of children.

The Court of Appeal decided that the SS had acted unlawfully in not consulting such bodies, particularly the Children’s Commissioner. As the Amendment Regulations were due to expire and new more limited regulations come into force, the court decided not to declare the Amendment Regulations ultra vires and quash them but rather granted a declaration that the SS had acted unlawfully (at paras [89]–[90]).

This article was first published by Lexis®PSL on 25 November 2020 and is available to download as a PDF below.

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