The Principles of Consultation

24 January 2020

The Principles of Consultation

Introduction

Consultation – formally discussing plans with those likely to be affected – is key to the planning process. When a change is going to be made - whether it be an infrastructure project, a change to local services or a change of local or national policy – those who will be affected should be consulted on the need for, and nature of, that change. This gives them the opportunity to have a say on the decisions which affect them and to influence these decisions.

Good consultation is fair, open and transparent and reflects legal principles and precedence. Below we summarise the key points behind good consultation.

 

When do you have to consult?

When there is an express duty to consult

In some circumstances, legislation expressly imposes a duty to engage in some form of consultation before taking a particular decision. For example, sections 41-49 of the Planning Act 2008 require consultation for Nationally Significant Infrastructure Projects and section 37 describes the role of the consultation report in the application process.[1]

When there is an implied duty to consult

Even where there is no express duty to consult, there may still be an implied duty to consult, such as a public authority’s duty to act fairly or whenever someone can be shown to have a legitimate expectation to be consulted, such as:

  • When there has been a promise to consult.
  • When there is established practice of consulting.
  • When the impact of the decision is sufficient that fairness demands the involvement of affected individuals in the decision-making process by some form of consultation.
  • When a decision results in changes to some right, protection or benefit which individuals legitimately expect will continue (and may rely on).

 

Who do you have to consult?

Generally, you should make the consultation open and available to those who are likely to be affected by the proposals if they are implemented. You should consult those likely to support the proposals, as well as those likely to oppose.

 

What constitutes a proper consultation?

Whether you are carrying out a statutory consultation, required by legislation, or a voluntary or non-statutory consultation, the ‘rules’ for good and robust consultation remain the same. 

The Gunning Principles

The Gunning principles, also known as the Sedley principles, stem from a landmark case in 1985 (R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168). These principles set a precedent for all future cases and are nowadays used as guiding principles for consultations. They can be summarised as:

  1. The consultation must be undertaken at a time when proposals are still at a formative stage.
  2. The proposer must give sufficient reasons for any proposal to permit intelligent consideration and response.
  3. Adequate time must be given for consideration and response.
  4. The product of consultation must be conscientiously taken into account in finalising any proposals.

Failure to fulfil these principles leads to low quality consultations which risk reputational damage, judicial review and may impact on planning determinations. 

 

Principle 1: Proposals must still be at a formative stage

If consultation is to be meaningful, it needs to be undertaken at a point where the mind of the decision-maker is still open to change and there is scope to change the proposals in the light of  the responses to the consultation.

  • A decision-maker can consult upon a preferred option and even a decision in principle, provided that it is communicated as such, and that the decision-maker’s mind is still genuinely open to change.
  • It is acceptable, and may be advisable, to consult in stages, moving from the bigger picture to more detailed elements.
  • It is unwise to entirely exclude certain options from the consultation, as a number of cases have demonstrated.[2]
  • If a decision-maker consults too early, they may not be able to provide sufficient information to enable an intelligent response (see Principle 2).

 

Principle 2: There must be sufficient information to enable intelligent response

Unless consultees have some idea of the decision-maker's rationale for the proposals put forward, and the key factors that are likely to be important in the decision-making process, it may be difficult for any effective response to be made.

  • Consultees need sufficient information in order to present their case based on a clear understanding of the proposals.
  • Therefore, consultees should be made aware of the basis on which the decision will be made, including the criteria that will be applied by the decision maker and which factors will most impact the final decision.
  • Consultees should also be provided with enough information about the context and background to the proposals and information which might shape their thinking and views. This may include the alternatives to the proposals.
  • However, consultation is not litigation and there is no general rule that everything the decision-maker sees should be provided to consultees.

 

Principle 3: There must be adequate time to respond

The amount of time that would be considered ‘adequate’ depends on factors such as:

  • The nature of the proposals being consulted on (such as the complexity of the issues)
  • The means of the consultation
  • The nature of the consultees

Because consultations can vary quite widely, the amount of time that can be considered adequate can vary widely too. Consultations under Section 42 of the Planning Act 2008 must last for a minimum of 28 days, but frequently last longer.

Although short consultation periods, broadly those less than 28 days, are sometimes permissible if there have been previous similar consultations or if the decision is deemed to be urgent, short consultations are not usually the best option. A consultation needs to be long enough for everyone affected to hear about it, consider all the relevant information, formulate an opinion and respond in full. Consultations have been successfully challenged in court on the grounds that they have not provided sufficient time for  participants to fully understand and respond to all the consultation material provided, which can include multiple lengthy documents. In particular, those consulting should consider things like the time of year and public holidays when thinking about how long their consultation will last – during the summer, over school holidays or over religious or national holidays additional time is usually advisable. It is also important to consider factors about the audience, who may observe different religious holidays for example.

 
Principle 4: Conscientious consideration

A consultation cannot be just a ‘box-ticking’ exercise. The product of the consultation must be fed into the decision-making process. If it is not, the process is little more than window dressing, and will potentially lead to poor decisions which are also unfair on those affected. In other words, it must be demonstrable (in court if necessary) that what was said by respondents was fed into the final decision, even if that decision is to go with the preferred option.

It is a government principle[3] to ‘publish responses within 12 weeks of the consultation or provide an explanation why this is not possible… [and] allow appropriate time between closing the consultation and implementing policy or legislation.’

 

The form of consultation

In addition to the Gunning principles, the form of consultation must also be appropriate.

  • This means considering not only the nature and impact of the decision, but the characteristics of those who are potentially affected by the decision.
  • The characteristics of the consultee group should be considered in determining what form of consultation is fair.
  • For example, an exclusively online consultation will exclude those without internet access. A consultation with materials only in English may exclude those who do not have strong English speaking and reading skills.
  • The degree of specificity regarding the consultation should be influenced by those who are being consulted.
  • The public sector equality duty (as set out in section 149 of the Equalities Act 2010) requires public authorities to eliminate discrimination and advance equality of opportunity. It also sets out a number of protected characteristics to consider when ensuring that actions are taken in a fair and non-discriminatory way. A consultation must take full account of this and ensure that the form of consultation does not inadvertently create inequalities in the ability of people to take part in the consultation process.


Disclaimer

This article is based on legal guidelines and our own experience of consultations. However, we are not legal experts and this article does not constitute legal advice.


 References

[1] Other examples include:

  • Section 5D of the Childcare Act 2006. which requires consultation before providing or ceasing to provide children's centres and before making any significant change to the services they provide.
  • Section 169 of the Enterprise Act 2002.
  • Local Authorities Social Services Act 1970
  • Articles 6 and 7 of the Aarhus Convention, which require forms of public participation in the formulation of various decisions, plans and policies relating to the environment. Although not directly enforceable in the UK courts, international conventions may be used as an aid to the construction of legislation and, in some circumstances, in the review of a public authority's exercise of discretion and in the application of the common law.

[2] For example, R (Parents for Legal Action Ltd) v Northumberland County Council [2006] EWHC 1081 (Admin) and R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin)

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