Wednesday 14 March 2018
Traverse were commissioned by Transport Scotland in October 2017 to analyse the responses to their consultation on proposed changes to the delivery of Bus Services and implementation of Smart Ticketing across Scotland.
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 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.
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:
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.
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, 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:
Failure to fulfil these principles leads to low quality consultations which risk reputational damage, judicial review and may impact on planning determinations.
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.
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.
The amount of time that would be considered ‘adequate’ depends on factors such as:
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.
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 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.’
In addition to the Gunning principles, the form of consultation must also be appropriate.
 Other examples include:
 For example, R (Parents for Legal Action Ltd) v Northumberland County Council  EWHC 1081 (Admin) and R (Medway Council) v Secretary of State for Transport  EWHC 2516 (Admin)
 https://www.gov.uk/government/publications/consultation-principles-guidance Retrieved 2nd September 2019