The public law duty to consult

In his latest article, Geoff Wild considers the key aspects of the public law duty to consult.

The public law duty to consult is an aspect of the principle that public authorities should exercise fairness in the exercise of their functions.

Where the duty to consult is imposed by statute, then the procedure to be adopted is also likely to be prescribed by the legislation. In other contexts, the issues will usually relate to:

• whether there is a duty to consult anyone at all and
• if so, what “fair consultation” entails in the circumstances

Cabinet Office Principles

The Cabinet Office Consultation Principles provide guidance on how those issues should be addressed, but do not prescribe the requirements for a valid consultation. The message from Government is that:

“The governing principle is proportionality of the type and scale of consultation to the potential impacts of the proposal decision being taken, and thought should be given to achieving real engagement rather than following bureaucratic process”.

Both the Cabinet Office Principles and recent case law emphasise that consultation requirements vary from one context to another and should be assessed on an individual basis. The burden is therefore on public authorities to decide how, when, with whom and how widely to consult. Difficult judgments need to be made on just what level of consultation is ‘proportionate’ to the purpose and objectives of a consultation exercise.

Gunning Principles

In that respect, the Cabinet Office Principles augment but do not displace the general principles derived from case law as to how consultations should be conducted. Those principles, known as the Gunning Principles are:

• Consultation should occur when proposals are at a formative stage
• Consultations should give sufficient reasons for any proposal to permit intelligent consideration
• Consultations should allow adequate time for consideration and response
• There must be clear evidence that the decision maker has considered the consultation responses, or a summary of them, before taking its decision

In the case of Moseley v Haringey, the Supreme Court endorsed the Gunning principles and added two further general principles:

• The degree of specificity regarding the consultation should be influenced by those who are being consulted
• The demands of fairness are higher when the consultation relates to a decision which is likely to deprive someone of an existing benefit

Whether to Consult?

In certain cases, there is no requirement for a consultation at all. Whether to consult depends on the issues, the nature and the impact of the decision and whether interested groups have already been engaged in the policy making process.

The Cabinet Office Principles cite as examples of circumstances in which consultation may not be appropriate "minor or technical amendments to regulation or existing policy frameworks… or where adequate consultation has taken place at an earlier stage."

Conversely, the more serious or significant the impact, the more likely it is that the views and concerns of those affected should be consulted upon before a decision is taken.

Equally, if the council has promised to consult before making a specific decision or type of decision it will be held to that promise. Making a public statement that it is committed to a transparent consultation on a particular issue, gives rise to a legitimate expectation that it will carry out such a consultation.

Furthermore, if the council has, as a matter of practice, consulted on the relevant type of decision in the past, that may give rise to a legitimate expectation that it will do so again.

There may be a statutory duty to consult. If none of the above apply, be wary of straying into voluntary consultation and inadvertently getting it wrong, as the Gunning principles will apply. Not every kind of engagement constitutes consultation simply because input is sought on an issue (R (Eveleigh) v SoS for Work and Pensions [2023]).

The council will, therefore, need to assess to what extent the nature of the policy change proposed or the previous public engagement on an issue means that a consultation exercise is necessary or unnecessary, or whether a more reduced exercise is needed than would otherwise be the case.

When to Consult?

Consultation should take place when policies can be influenced and views genuinely taken into account. This will often be at the earliest opportunity, but it may also be appropriate to consult at varying points in a decision-making process. For example, there may be circumstances where new information comes to light which requires the consultation process to be re-opened. It may therefore be appropriate to engage in different ways at varying stages - but always be able to justify the approach taken.

Whatever else, the consultation must take place at a time when the views of the decision-maker are still open to change and can therefore be influenced by responses to the consultation. Evidence that careful consideration has been given to which option to pursue in the light of the consultation responses will support the council’s position if a challenge arises to its decision.

Content of Consultations

Consultations should provide sufficient information to ensure the process is fair.

Consultation is not required on every possible option, although every viable option ought to be included. In the Moseley case, the Supreme Court held that a local authority's consultation exercise relating to the introduction of a council tax reduction scheme was unlawful because the consultation failed to refer to other options considered for addressing the shortfall in funding caused by the government's scrapping of council tax benefit. Alternative approaches should have been set out even if only to explain why they were not appropriate. The council should therefore consider including realistic alternatives in consultation documents to allow consultees an opportunity for intelligent consideration of the proposals and to respond in a way that enables them to participate meaningfully to the decision-making process.

The council should also have regard to the form of the consultation in light of the characteristics of the consultee group. For instance, whether it is appropriate to conduct the process in hard copy as well as on-line and how consultation materials can be accessed to comply with the public sector equality duty.

Length of Consultations

A key decision is the length of the consultation period. The Cabinet Office Principles suggest that timeframes typically vary between two and 12 weeks and leave it for public authorities to decide where on the sliding scale of significance their own exercise fits. For instance, if only a small number of likely consultees have a stake in a particular issue, then a consultation period of 12 weeks in length may be too long.

However, for a new and contentious policy the full 12 weeks may be appropriate. Consequently, where decisions to make financial cuts need to be made and those decisions are likely to impact on the vulnerable, longer and more detailed consultations may be necessary.

Consideration of Consultations

It is a fundamental aspect of good decision-making that a decision-maker gives "conscientious consideration" to the outcome of the consultation process. Hence, a failure to consider an alternative proposal put forward by a respondent to the consultation, could render the decision-making process flawed. Indeed, if the council considers alternative options but fails to seek further information from the respondent on their proposals – then it could lead to the decision-making process being quashed.

Put simply, the council must be able to show that it has considered the outcome of the consultation process carefully and be prepared to change course in response to the outcome of consultation if appropriate.

Conclusion

The Cabinet Office Principles and the subsequent cases confirm that, in considering whether and how to carry out a consultation, councils should give detailed thought to what length of consultation and what methods of consultation would be appropriate in all the circumstances. The underlying principle of fairness should be at the forefront of the process.

The council should expect any decisions that it makes to come under scrutiny and should ensure that it has a clear set of reasons for structuring and conducting the consultation in the way chosen, having regard to the extent to which the views of potentially consultees have already been sought through public engagement.

Geoff Wild is a Legal and Governance Consultant. He is celebrating his 40th anniversary as a local government lawyer.