When public bodies in the UK take decisions, they are often subject to statutory or common law duties that require them to first consult people who may be affected by the decision.
Fair and effective consultation builds trust in decision makers and enables interested persons to fully engage with the decision-making process. Consultation allows public bodies exercising powers to fully understand and consider the impacts on those affected. Ultimately, it is intended to help decision makers make better decisions.
A failure to consult properly may constitute grounds for a public body to be challenged in the courts by way of judicial review. Therefore, it is essential that public bodies apply the public law principles on consultation carefully and ensure their internal processes for consultation are clear and robust where a duty to consult applies.
When is there a duty to consult?
There is no general duty on public bodies to consult, simply on the basis that their decision is important or may have an impact on others. In general, a public body is only obliged to consult where this is required by legislation or in order to meet a ‘legitimate expectation’.
Often statutory consultation requirements are set out in legislation covering a particular area and in those cases the public body must comply with those requirements. For example, the Town and County Planning (Development Management Procedure (England) Order 2015 and related Directions require local planning authorities to consult local residents likely to be affected by a decision on certain types of planning application. Where the legislation specifies who is to be consulted or how the consultation is run, the public body must comply with this.
Even where there is no statutory requirement to consult, the courts may apply the common law principles that parties affected by the public body’s decision must be consulted, if it would breach a ‘legitimate expectation’ of consultation based on a promise or established practice, or it would be ‘conspicuously unfair’ not to do so.
Fair consultation principles
When a public body is consulting, it will have a broad discretion as to how the consultation exercise should be carried out, subject to observing any express requirements that apply to a particular statutory consultation duty. However, it must conduct the consultation process fairly. In assessing fairness, the courts have identified four main principles of fair consultation, commonly referred to as the ‘Gunning principles’:
- consultation must take place when the proposal is still at a formative stage;
- sufficient reasons must be put forward for the proposal to allow for intelligent consideration and response;
- adequate time must be given for consideration and response; and
- the results of consultation must be conscientiously taken into account.
The way these principles are applied by the courts recognises that fairness may look different in different circumstances. For example, the Court of Appeal found that an urgent informal consultation early in the coronavirus pandemic complied with these four main principles, but the consultation was unfair nonetheless because the bodies consulted did not represent a balanced approach to the range of interests impacted by the decision.
Do the Gunning principles apply to voluntary consultations?
Often, public bodies decide to consult voluntarily as a matter of good practice, even when they are under no legal obligation to consult. But even in such cases, the courts have stated that they must comply with the Gunning principles in the way they conduct the consultation.
Guidance on consultation
Some public bodies have published guidance on how they intend to conduct consultations. In particular, the UK government’s guidance for government departments (2 pages / 55.9KB PDF) is a helpful guide. It sets out the principles of good practice and states that consultations must:
- be clear and concise;
- have a purpose;
- be informative;
- be only part of a process of engagement;
- last for a proportionate time;
- be targeted;
- facilitate scrutiny;
- ask for responses to be published in a timely fashion; and
- not generally be launched during local or national election periods.
Digital consultations
There is increasing interest in digital consultation and electronic engagement. The UK government is funding a range of emerging projects that use digital tools for engagement and currently focusing on three types of project:
- virtual reality and augmented reality tools “to ensure data driven decision making and transparency”;
- application programming interfaces (APIs); and
- the use of artificial intelligence and natural language processing (NLP).
As public bodies increasingly consider the use of such methods, they must remain mindful of the Gunning principles – in particular the requirement for the decision maker to take responses conscientiously into account. Equalities issues and the risks of digital exclusion must also be considered.
The public sector equality duty
The public sector equality duty under the 2010 Equality Act requires public bodies, when exercising their functions, to have “due regard” to the need to eliminate discrimination, advance equality and foster good relations.
In relation to consultation, taking account of the disadvantages suffered by persons who share a relevant protected characteristic may mean that a public body needs to consider whether consultation materials should be provided in different languages and different formats or media.
One particular equalities impact often relevant to consultations is digital exclusion. This refers to the gap between people in society who have full access to technology, such as the internet and computers, and those who do not. It may arise for a number of reasons, including inadequate access to digital infrastructure or devices, or lacking digital skills. A 2021 report by Age UK (14 pages / 55.9 KB PDF) noted that digital exclusion increases with age, and the Good Things Foundation found that limited users of the internet are 1.5 times more likely to be from Black, Asian and minority ethnic groups.
At the same time, the Office for National Statistics (ONS) reported that, in 2017, 60% of internet non-users between 16 and 24 years were disabled. In designing and conducting a consultation exercise, it is important for a public body to comply with its equality duty by considering the risk of digital exclusion of those being consulted.
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