The Cabinet Office has published new Guidance on Consultation Principles (Guidance) that government departments and other public bodies should adopt to engage stakeholders in policy and legislative developments. The Guidance, which is part of the Civil Service Reform Plan, intended to improve policy making and implementation, replaces the Code of Practice on Consultation issued in July 2008 (the 2008 Code).  It is expected to begin taking effect from September 2012. Key points

  • The Guidance is a simplified version of the principles covering consultations previously set out in the 2008 Code.  It may in practice give more flexibility to public bodies, although they will still need to meet the common law requirements for fair and proper consultations.
  • The Guidance is intended to improve the way public bodies consult by emphasising a more "proportionate and targeted" approach, so that the type and scale of engagement is proportionate to the potential impacts of the proposal under consideration.
  • A key change relates to the duration of consultations. Whereas the 2008 Code's criteria included that consultations should "normally last for at least 12 weeks", the Guidance says that they "might typically vary between two and 12 weeks".

Background

In public law terms, an inadequate consultation process by a public body can be challenged by an affected party in judicial review proceedings, generally on grounds of procedural impropriety or legitimate expectation. Support for challenge based on defective consultations has derived in some notable cases from the 2008 Code. For example, in R (Greenpeace Limited) v Secretary of State for Trade and Industry, a 12 week consultation period was considered inconsistent with a commitment to undertake "the fullest consultation", in part by reference to the 2008 Code. The move to a simplified 'principles' structure with less detail in the Guidance is therefore a significant development.

New consultation principles

Timing of consultation

Under the 2008 Code, the standard minimum for any consultation was 12 weeks. If a consultation lasted for a shorter period, the consultation document had to set out good reasons for this and ministerial clearance was to be sought.

By contrast, the Guidance is more flexible, providing that the amount of time required for consultation will depend on the nature and impact of the proposal. However, it gives a "typical" range of between two and 12 weeks, rather than a default minimum 12 week period.

The Guidance outlines various factors to be taken into account in determining the appropriate timescale: the diversity of interested parties, the complexity of the issue, the level of engagement which has already occurred, the capacity of the parties to respond, and external events. In this way, factors which were used in the 2008 Code to justify a 12 week minimum are still generally relevant. It is anticipated that for new and contentious policy 12 weeks may still be appropriate. It also advises longer and more detailed consultation in circumstances where smaller, more vulnerable organisations (such as a small charity) could be affected and the Government has expressly not backtracked from its commitment in its Compact agreement with the voluntary and community sector to conduct 12 week consultations where appropriate.

The Guidance also refers to circumstances in which consultation may not be considered appropriate at all. It identifies these as "minor or technical amendments to regulation or existing policy frameworks, where the measure is necessary to deal with a court judgment or where adequate consultation has taken place at an earlier stage".

Forms for engaging with and consulting those affected

The Guidance recognises that traditional written consultation is not always the best way of getting the right evidence. Instead, it encourages policy makers to give more thought as to how they consult. It recommends that consideration is given to more informal ways of engaging with stakeholders such as e-mail, web-based forums, public meetings, working groups, focus groups and surveys. Some accountability remains as public bodies are instructed to be clear about how they have come to consult in a particular way.

Making sufficient information available

The Guidance continues to promote the use of information technology in making information available to stakeholders, which should be as easy to find as possible. This is an advance on the 2008 Code which suggested only tentatively that specialist media could help promote consultation exercises among interested parties.

Practical considerations

The Guidance also introduces a new principle concerning "collective agreement" in policy making within government/departments at an early stage before any public engagement that might be seen as committing the Government to a particular approach. In terms of using more informal methods of engaging with stakeholders, the Guidance cautions that departments should think carefully about at what point collective agreement should be sought (and should certainly seek it for a 'call for evidence').

Impact Assessments

While the 2008 Code instructed public bodies to publish a "consultation stage Impact Assessment" alongside a formal consultation, setting out estimates of the cost and benefits of the policy options under consideration, such instruction is absent from the Guidance. It remains to be seen whether this will result in the information that used to be contained in a draft Impact Assessment being communicated in another form, or whether it will reduce the level of detail public bodies must provide to interested parties. The separate guidance concerning Impact Assessments continues to exist, outlining the circumstances in which an Impact Assessment is required.

Commentary

The new Guidance removes much of the detail contained in the 2008 Code. Its high-level, principles-based approach may make it harder for claimants to draw support from the Guidance to challenge the adequacy of consultations, as on its face it gives greater flexibility to public bodies. However, there is a well-established body of case law concerning fair and proper consultations, which is binding. In practice, against this high level Guidance, that case law gains in significance, in particular on the issues of when consultation is appropriate and for how long a consultation should run. Accordingly, public bodies will not necessarily derive from the Guidance justification for shorter consultations, or decisions not to consult.