A range of significant legislative changes in the UK have put public consultation in the limelight recently. High profile judicial reviews in the UK have demonstrated that projects can be successfully challenged for inadequate consultation and poor record keeping.
There is no one right way of undertaking good consultation; it has to be context-specific. However, regardless of what consultation process you are in, the basic principles essentially remain the same.
What are the principles of consultation in the UK you may ask. Let’s start with the UK governments own Consultation Principles.
Government Consultation Principles
The government says that the revised consultation principles will improve the way it consults by adopting ‘a more proportionate and targeted approach.’ The revised principles place emphasis on the consultation being accessible, for example, in terms of the language used, the process of engagement and length of consultation. The consultation should also be targeted and tailored to the needs of particular groups. The revised consultation principles can be found here: government consultation principles
Recent cases refer to consultation principles and concern the sufficiency of the information provided to consultees. In this respect, the principles say that consultations should “give enough information to ensure that those consulted understand the issues and can give informed responses” and that they should include “validated assessments of the costs and benefits of the options being considered when possible”.
It is clear that the adequacy of consultation will continue to be a fertile ground for challenge. Basic principles can be seen in current legislation and guidance such as the Planning Act 2008 and the Localism Act 2011. The principles have been cited time and again by those who have successfully overturned flawed consultations in the courts.
The Gunning Principles
Before 1985 there was little consideration given to consultations until a landmark case in that year (R v London Borough of Brent ex parte Gunning). This case sparked the need for change in the process of consultations when Stephen Sedley QC proposed a set of principles that were then adopted by the presiding judge. These principles, known as Gunning or Sedley, were later confirmed by the Court of Appeal in 2001 (Coughlan case) and are now applicable to all public consultations that take place in the UK.
The Gunning principles are:
- When proposals are still at a formative stage. Public bodies need to have an open mind during a consultation and not already made the decision, but have some ideas about the proposals.
- Sufficient reasons for proposals to permit ‘intelligent consideration’ and ‘response’. People involved in the consultation need to have enough information to make an intelligent choice and input in the process. Equality Assessments should take place at the beginning of the consultation and published alongside the document.
- Adequate time must be given for consideration and response. Timing is crucial – is it an appropriate time and environment, was enough time given for people to make an informed decision and then provide that feedback, and is there enough time to analyse those results and make the final decision?
- The product of consultation must be conscientiously taken into account. Think about how to prove decision-makers have taken consultation responses into account.
The Gunning principles were roundly endorsed by the Supreme Court in R (Moseley) v London Borough of Haringey  UKSC 56.
There the council was found to have acted unfairly and so as to have prevented meaningful public participation in its decision-making process when consulting on its council tax reduction scheme.
This was because (in a context with which the general public could not be expected to be familiar) the consultation document should have contained a brief outline of the alternative options and reasons for their rejection.
The key question in that case was said to be ‘whether such reference or information is necessary in order for the consultees to express meaningful views on the proposal’.
Lord Wilson went on to set out certain other important principles of a fair consultation, namely that:
- the public body is under a duty to act fairly regardless of whether the consultation is a statutory requirement or not;
- the “democratic principle at the heart of our society” means that there is constitutional value in itself in involving, and hearing the views of, members of the public in the decision-making process;
- potentially affected members of the public, who are economically disadvantaged, should be given more specific information about the consultation by the public body; and
- the demands of fairness will be stricter where the outcome of the consultation may be to deprive someone of a benefit that they previously enjoyed.
Successful consultation requires careful planning at the outset and continual assessment against pre-agreed benchmarks throughout the consultation process itself. Outcomes of the consultation need to be rigorously examined against strict criteria to ensure that all the specified intentions have been met and all the resultant responses considered.
It is important to manage the information resulting from your consultation in an accurate and auditable way. In other words, recording all stakeholder interactions and responses in a manner that not only allows them to be “conscientiously taken into account” but also allows you report that that is the case.
The risk of not following these principles could result in a Judicial Review. A number of public bodies across the UK have been taken to Judicial Review and deemed to have acted unlawfully in their Public Sector Equality Duty – usually linked to the four Gunning Principles.
What’s your view? Is there a risk to not following consultation principles? Do organisations take such principles seriously? Share your views by emailing The Consultation Movement at: firstname.lastname@example.org.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.