How might the Government’s new Consultation Principles affect public law decision-making? In July 2012, the Cabinet Office issued a new set of Consultation Principles (the “Principles”) which replaced the Code of Practice on Consultation issued in July 2008 (the “Code of Practice”).
Although the Code of Practice was not a legally-binding statement of a public authority’s duties when carrying out a consultation, it attained considerable importance as a yardstick which claimants seeking to challenge consultation processes could use to measure up against a consultation in the hope of highlighting apparent deficiencies in the way it was conducted.
The Principles are far less prescriptive in the requirements they set for a valid consultation. The message the Government has attached to the 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”.
The Principles emphasise that “consultation is part of wider engagement and whether and how to consult will in part depend on the wider scheme of engagement”.
The introduction of the Principles means that the burden is now put on public authorities to decide how, when, whom and how widely to consult, without the express guidance which the Code of Practice provided. Difficult judgments may need to be made on just what level of consultation is “proportionate” to the purpose and objectives of a consultation exercise. Although the tone of the Government’s announcement suggests that public authorities are being liberated from an overly-restrictive approach embodied in the Code of Practice, our expectation is that the Principles leave public authorities with a number of decisions to make about the scope and methodology for consulting which will remain open to challenge.
The Principles go as far as to say that in some cases there will be no requirement for a consultation at all and that may depend on the issue or whether interested groups have already been engaged in the policy making process. Accordingly, public authorities will need to assess to what extent previous public engagement on an issue means that a consultation exercise is unnecessary or that only a more reduced exercise is needed than would otherwise have been the case.
The Principles recognise that:
“There may be circumstances where consultation is not appropriate, for example, for 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. However, longer and more detailed consultation will be needed in situations where smaller, more vulnerable organisations such as small charities could be affected. The principles of the Compact between government and the voluntary and community sector will continue to be respected.”
They 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. Accordingly, 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 will be necessary.
A practical challenge for any public authority is to form a view on the extent to which there has already been public engagement on the issue and whether the fact and extent of that public engagement means that there is no need for it to consult on the issue or that only a much-reduced consultation exercise is needed.
A key decision for any public authority proposing to consult is the length of the consultation period. Whereas the Code of Practice suggested that a reasonable period for a consultation process to last was 12 weeks, the Principles suggest that the timeframes might typically vary between two and 12 weeks, and leaves it for public authorities to decide where on the sliding scale of significance their own exercise fits.
Whereas hitherto cautious public authorities would ensure that their consultation period would last 12 weeks or a period only very slightly shorter than that, the Principles provide express justification for adopting a shorter period.
Although the Principles represent a significant change to the expectations of how consultations should be conducted, they do not affect the general principles derived from case law on how a valid consultation should be conducted. By way of reminder those principles are:
- Formal consultation should take place at a stage when there is scope to influence the policy outcome, when the policy is still at a formative stage.
- Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence the decision and the expected costs and benefit of the proposals.
- Consultation exercises should be decidedly accessible to, and clearly targeted at, those people the exercise is intended to reach. Consultees should be given adequate time to consider the proposals and then to provide feedback on them.
- There must be clear evidence that the decision-maker has considered the consultation responses, or a summary of them, before taking its decision.
- Consultation responses should be analysed carefully and clear feedback should be provided to participants following the consultation.
It should also be noted that the apparent relaxation of the requirements for consultations which the Principles represent do not apply to statutory consultations, which remain subject to the precise formal provisions set out in the relevant statute.
Public bodies considering carrying out non-statutory consultations should have regard to the new Principles. Although the emphasis the Government has placed on the Principles is that they are intended to give public authorities more scope to exercise their own judgement, the Principles provide less certainty about what may be required in any particular circumstances.
Therefore, 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. 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. However, 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.
Click here to view the guidance to the Consultation Principles.