The public law duty to consult is one 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 for a public authority will usually relate to; (1) whether there is a duty to consult anyone at all; and (2) if so, what “fair consultation” entails in the circumstances.
Guidance as to how those issues should be addressed can be found in the Cabinet Office Consultation Principles (“the Cabinet Office Principles”) and relevant case law.
The Cabinet Office Principles do not prescribe the requirements for a valid consultation. The message the Government has attached to the Cabinet Office Principles 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 have emphasised that consultation requirements will vary from one context to another and should be assessed on an individual basis. The burden is now therefore on public authorities to decide how, when, with whom and how widely to consult. Difficult judgments may need to be made on just what level of consultation is "proportionate" to the purpose and objectives of a consultation exercise.
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.
Those principles were recently re-affirmed by the court in the case of Draper v Lincolnshire CC (involving consultation on a proposed programme of library closures in Lincolnshire- see further below).
In the recent case of Moseley v Haringey , the Supreme Court also 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 likely to be 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 will be no requirement for a consultation at all. Whether to consult will depend 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 "for 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 public authority has promised to consult before making a specific decision or type of decision it will be held to that promise. Hence in the recent case of British Dental Association v General Dental Council the GDC's public statements that it was committed to a transparent consultation on increases to dentists' annual retention fees gave rise to a legitimate expectation that it would carry out such a consultation again (and the exercise which had been carried out was inadequate).
Furthermore, if a public authority 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.
The recent context in which this principle has been considered was the case of R (Luton BC) Secretary of State for Education which concerned the Government's abandonment of the Building Schools for the Future programme in 2010. In that case the court decided that although there had been no formal practice of consultation on the over-arching policy, there had been "a continuous and intense dialogue with the claimants over the years" on individual projects which "continued almost to the very last minute". In those circumstances it was unfair of the Government to stop those projects without prior consultation.
Public authorities 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. (Public bodies should also be aware that it may be appropriate to engage in different ways at varying stages - but they will need to 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 a public authority's position if a challenge arises to its decision. Thus in the recent case of R. (on the application of Bailey) v Brent LBC relating to the closure of libraries in the London Borough of Brent, evidence of a careful consideration exercise led the court to conclude that there had been no failure in the consultation process.
There may also be circumstances where new information comes to light which requires the consultation process to be re-opened.
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 the local authority's consultation exercise relating to the introduction of its council tax reduction scheme was unlawful because the consultation documents failed to refer to any other options which it had considered for addressing the shortfall in funding caused by the government's scrapping of council tax benefit. The Supreme Court held that alternative approaches should be set out even if only to explain why they were not appropriate. Public bodies should therefore consider including realistic alternatives in the consultation documents so as to allow consultees an opportunity for intelligent consideration of the proposals and to respond in a way which enables them to participate meaningfully to the decision making process.
Public authorities should also have regard to the form of the consultation in the 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 in compliance with the public sector equality duty.
Length of Consultations
A key decision for any public authority proposing to consult is the length of the consultation period. The Cabinet Office Principles suggest that the timeframes might typically vary between 2 and 12 weeks and leaves 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 would have a stake in a particular issue then the consultation period of 12 weeks in length may be too long.
The Cabinet Office Principles provide express justification for adopting a shorter period in appropriate circumstances. So in the "Building Schools for the Future" case the court saw no reason why the Secretary of State had not given the seven local authorities affected by the change in policy "a short period" to present their cases. Likewise in the case of R (Green) v Gloucestershire County Council the court rejected a submission that the consultation period which lasted from 15 December 2010 to 14 January 2011 was inadequate.
Conversely the Cabinet Office Principles also recognise that for a new and contentious policy, such as a new policy on nuclear energy, the full 12 weeks may still 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 in the case of Draper v Lincolnshire CC a court held that a failure to consider an alternative proposal for the running of library services which had been put forward by a respondent to the consultation, rendered the decision making process flawed. In fact there was evidence that the Council had considered alternative options but it failed to seek further information from the respondent on its proposals - which led to its decision making process being quashed.
The case of Royal Brompton & Harefield NHS Foundation v Joint Committee of Primary Care Trusts and Anor also illustrates the importance of adopting great care and a robust approach to the analysis of consultation responses - particularly where the subject matter is highly technical. In that case it was held that a consultation exercise into proposals to reconfigure paediatric congenital cardiac services was unlawful because the way in which the expert data submitted by consultees - and which was central to the analysis of responses - had been analysed, was fatally flawed.
Put simply the public authority 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.
The Cabinet Office Principles, and the recent cases (which have been decided since they were published) confirm that, in considering whether and how to carry out a consultation, public authorities 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. Public authorities should expect any decisions that they make to come under scrutiny and should ensure that they have a clear set of reasons for structuring and conducting the consultation in the particular way they have chosen, having regard to the extent to which the views of those potentially eligible to be consulted have already been sought through public engagement.