What are the the general legal requirements for consultation?

In short, anyone who undertakes consultation must let people know what they are proposing and why, give them a chance to comment, and conscientiously take into account their responses with an open mind before deciding whether or not to do what was proposed.

The basic rule is that, whether or not a public body was required to consult, if it does so, then it  must [1] comply with the following overarching obligations (unless detailed statutory rules supplant these) [2]:

  • Consultation must be at a time when proposals are at a formative stage.
  • The proposer must give sufficient reasons for its proposals to allow consultees to understand them and respond to them properly.
  • Consulters must give sufficient time for responses to be made and considered.
  • Responses must be conscientiously taken into account in finalising the decision [3].

All of those are aspects of an overriding requirement for ‘fairness’ [4]. The process must be substantively fair and have the appearance of fairness [5].

Supplementary principles

Extent of consultation: depends on all the circumstances [7].

But where the issue was a boundary change ‘persons who may be interested’ included the public as a whole [8].

It can be lawful to consult only representative bodies provided the court considers it fair to do so [9].

Formative stage: all issues being consulted upon must be at a formative stage so is it no good consulting just on issues of timing and implementation where the principle has already been decided upon [10].

Phased or staged consultation: there is no objection in principle to consulting/deciding in stages (eg issues of principle followed by issues of implementation) [11] provided the stages are not so rigidly defined as to, in effect, preclude full consideration (and response in relation to) the issues in the round [12].

‘The full package must be sufficiently identified as part of the final stage of publication, and there must be adequate time after publication of the final part of the package for the package to be considered as a whole and for representations to be made.’ [13]

The obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response [14].

The reasons given for what is proposed must include a candid explanation [15] (indeed a true explanation! [16]) and an explanation of the factors or criteria which the consulter considers important to its decision-making [17].

There is not necessarily an obligation to state the disadvantages of a proposal [18].

Although there is no general obligation to disclose unpublished internal advice [19] or representations from other consultees [20], that remains subject to the overarching requirement to give sufficient reasons for consultees to be able to respond intelligently [21], such that, where the decision was being informed by private representations, those representations needed to be made available to consultees [22].

If the public are being consulted then the consultation document must be available to all, in a language which is simple and clear and not bedevilled with jargon [23].

It is not permissible to rely on ‘mediation by opinion makers’ for (eg) complex financial information [24].

It should be clear what is being consulted upon: where only ‘issues’ were raised, consultees were entitled to proceed on the basis those were the issues and not some underlying decision of principle: could they reasonably foresee that, following consideration of responses, the issue of principle would be decided [25]?

But note that an invitation also to provide “any general comments you may have” can lead to the inference that underlying issues are in play [26].

Information and documents to be provided: The obligation to provide information to consultees can require the provision of significant amounts of information, and in a form which allows consultees properly to understand and make “meaningful and informed representations” [27] on what is being consulted upon [28].

Where the decision-maker has access to important documents which are material to the determination whose contents the public would have a legitimate interest in knowing then those documents should be disclosed in the consultation process [29].

If fairness requires it then the consulter may be obliged to provide consultation responses from some consultees to others for the latter’s comment [30].

Information can be supplemented during the process, but the less information that is provided at the outset, the more likely it is to be unfair to provide substantial information later in the process [31].

Consultation on a single option: A public body can consult on a single, preferred, option but that is unlikely to be lawful unless other options are identified and the preferred option explained in a way which allows consultees properly to argue in favour of alternatives [32].

The consulter should not prematurely preclude options from consideration [33].

Changes mid process/new options: If the public body fundamentally changes [34] its proposal mid-process or is minded to proceed in a way which was not part of the proposal consulted upon, then basic fairness may require it to re-consult or consult afresh on the changed proposal [35].

Depending on the circumstances, further consultation may be required on matters and issues that the initial consultation may have thrown up [36].

Considering the responses: The person or people actually making the decision do(es) not need to read every consultation response in order to have been taken conscientiously to have taken them into account.

They are entitled to rely on others to summarise responses [37].

But that process must be a fair and neutral one and not omit significant material [38] points.

Indeed, it “includes a positive duty to provide sufficient information and guidance to enable members to reach a decision…” [39]

Once consultation has completed a decision-maker is not required to disclose his own thought processes for criticism before reaching a decision but if, in the course of decision-making the consulter becomes aware of a new factor of potential significance, fairness may require that concerned parties be given an opportunity to comment [40].

______

[1] A public body cannot dispense with consultation in reliance on urgency of its own making: R v North East Devon Health Authority ex p Pow unreported 4 August 1997

[2] Coughlan (see footnote 2); R v Brent LBC, ex p. Gunning (1984) LGR 168; but note Breckland v Boundary Commission [2009] EWCA Civ 239 [43] where the statute required the consulter to ‘take such steps as they consider sufficient’

[3] R v London Borough Of Lambeth Ex Parte N [1996] ELR 299, R v Secretary of State for Social Services ex parte Association of Metropolitan Authorities [1986] 1 WLR 1 “the essence of consultation was the communication of a genuine invitation to give advice and a genuine receipt of that advice”

[4] R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877; R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin); ex p East [1996] ELR 74, 88; ex p Baker [1995] 1 All ER73 at 88; Evans v Lord Chancellor [2011] EWHC 1146 [32]

[5] R(Sadar) v Watford BC [2006] EWHC 1590

[6] Vale of Glamorgan v Lord Chancellor[2011] EWHC 1532 (Admin) [25]

[7] R v Camden ex p Cran (1996) 94 LGR 8; Wainwright v Richmond on Thames CO/3605/2000 11 April 2001 [44]

[8] Breckland v Boundary Commission [2009] EWCA Civ 239 [45]

[9] R(Legal Remedy UK) v Secretary of State for Health [2007] EWHC 1252 (Admin); Milton Keynes v Secretary of State for Communities and Local Government [2011] EWHC 1060 (Admin)

[10] R(Sadar) v Watford BC [2006] EWHC 1590

[11] Nichol v Gateshead MBC (1988) 87 LGR 435

[12] R(Parents for Legal Action Ltd) v Northumberland [2006] ELR 397, [2006] EWHC 1081 Admin

[13] Breckland v Boundary Commission [2009] EWCA Civ 239 [49]

[14] R v North and East Devon Health Authority, ex p. Coughlan [2001] QB 213; R(Forest Heath DC) v Electoral Commission [2010] PTSR 1227 [54]; Vale of Glamorgan v Lord Chancellor[2011] EWHC 1532 (Admin)

[15] R (Lloyd) v Dagenham London Borough Council [2001] EWCA Civ 533; R v Lambeth London Borough Council, ex p. N [1996] ELR 299

[16] R(Madden) v Bury MBC [2002] EWHC (Admin) 1882

[17] R (Capenhurst) v Leicester City Council [2004] EWHC 2124 (Admin)

[18] R (Beale) v Camden [2004] LGR 291

[19] Ex p Bushell [1981] AC 75

[20] Ex p US Tobacco [1992] QB 335, 370F-G; Abbey Mines v Coal Authority [2008] EWCA Civ 353; Electoral & Boundary Commission v Forest Heath [2009] EWCA Civ 1296 [41]

[21] R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877; Electoral & Boundary Commission v Forest Heath [2009] EWCA Civ 1296 [44]

[22] Evans v Lord Chancellor [2011] EWHC 1146 (Admin)

[23] Bard v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin)

[24] Breckland v Boundary Commission [2009] EWCA Civ 239 [69]

[25] R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)

[26] Bard v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin)

[27] R v Secretary of State for the Home Department, ex p. Harry [1998] 1 WLR 1737 at 1748

[28] R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin); R (Eisai Ltd) v National Institute for Health and Clinical Excellence [2008] EWCA Civ 438;

[29] R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877

[30] Anglian Water v Environment Agency [2003] EWHC 1506

[31] R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 (Admin)

[32] R (Madden) v Bury Metropolitan Borough Council [2002] EWHC 1882 (Admin); Vale of Glamorgan v Lord Chancellor[2011] EWHC 1532 (Admin)

[33] R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [32]

[34] R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin);  R v Shropshire HA ex p Duffus[1990] 1 Med LR 119 at 223

[35] R (Carton) v Coventry City Council (2001) 4 CCLR 41, 44C-E.

[36] R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877 [103]

[37] Miller v North Yorkshire County Council [2009] EWHC 2172 (Admin) at [49]; Bard v Secretary of State for Communities and Local Government [2009] EWHC 308 (Admin) [96]

[38] R (Kides) v South Cambridgeshire DC [2001[ EWHC Admin 839

[39] R (Lowther) v Durham County Council [2001] EWCA 781 at [98] per Pill LJ; Trillium v Tower Hamlets [2011] EWHC 146 (Admin); Wainwright v Richmond on Thames CO/3605/2000 11 April 2001 [64-67]: not enough to complain that the report could have said more if there were no material omissions

[40] R (Edwards) v Environment Agency (No. 2) [2006] EWCA Civ 877 [103]

 


 

 

  25 comments for “What are the the general legal requirements for consultation?

  1. Beth Handley
    December 7, 2011 at 10:02 pm

    Hi David

    This is an excellent useful article, thank you so much.

    What do you think would be a reasonable length of time for a genuine fair consultation conducted by a governing body on the academy issue? The governing body of my school is being bullied by the DfE into voluntarily becoming an academy – which both the governing body and the school community oppose. The governing body is very willing to consult but does not want to be bullied into rushing a consultation that does not meet the criteria you have set out above. Any advice you have would be gratefully received!

  2. Beth Handley
    December 7, 2011 at 10:41 pm

    another question … what response would need to come out of a consultation for it to have a binding influence on the decision taken? Would it be sufficient to say that where there is overwhelming opposition to a proposal, it would be irrational to ignore it or does some more concrete reason why the proposal should not be pursued need to emerge? Can or should a governing body say at the outset that they will be bound by the outcome of a consultation in terms of support or lack thereof for the academy plan?

    many thanks!

    Beth

  3. December 8, 2011 at 8:54 am

    I have put an answer about how long a consultation must last in this post. And on the question of whether consultations are binding in this one.

  4. Richy Thompson
    December 8, 2011 at 12:27 pm

    Hi David,

    Great blog.

    Reading this through again, do you think there might be a tension between the need for consultations to be at a formative stage, and the fact that Free School consultations happen so late on in the process – by which point lots of parental support will already have to have been gathered in order to show DfE approval, thereby giving the proposers an easy base of support to draw on?

    Thanks,

    Richy

  5. December 8, 2011 at 2:05 pm

    I think there is a very clear tension, to say the least. In particular, by that point it is quite likely that lots of money will have been spent, commitments will have been made, and expectations raised. Hard to see how such consultation could credibly be said to be open minded in any real sense.

  6. Beth Handley
    December 11, 2011 at 10:15 pm

    thank you so much! This and everything else I have read on your blog is extremely practical and helpful!

  7. J Cooper
    March 26, 2012 at 9:32 am

    This is extremely helpful. 2 Questions.
    Firstly, what is the act of parliament governing the legislation about consultation?
    Secondly, the consultation about the re-introduction of the uniform at our school appears to be illegal. Does that mean the decision made on the basis of this, is illegal as well(even though the governors didn’t have to do a consultation?), and what can we do about it, given that the school has all the money, power and pretty much the local media?
    Thanks

  8. Laura Church
    March 28, 2012 at 2:23 pm

    Thank you for your very helpful article David, and I’m sorry if my question is a little off-piste. The Head and Governors are determined to re-introduce a uniform into this state secondary school; we are one of the few without one. The consultation was an insult, and almost certainly illegal, on three of your four counts. As one of the many courses of action we are embarked on, is it also possible to bring legal pressure to bear? In other words, would a solicitor take it on?

    Many thanks

    Laura

  9. DW
    April 3, 2012 at 6:54 am

    It is perfectly possibly to bring a legal challenge to a decision to change the school’s uniform. It would be a ‘judicial review’, as described elsewhere in this blog. It can be quite a tricky process so you would be well-advised to contact a solicitor experienced in dealing with education judicial reviews for advice.

  10. DW
    April 3, 2012 at 6:58 am

    As it explains in the post about consultation, the requirements for consultation are sometimes set out in the act of parliament or in a statutory instrument (aka ‘regulation’) – an example is the rules which govern the process of discontinuing a maintained school, or substantiallly increasing the size of a maintained school. In other cases (and the rules round uniform) is one such example, the rules on consultation have simply been set out in ‘case law’ – in other words, this is what the courts have said over the years must be done to have a ‘fair’ process.

  11. Rowan Clarke
    July 3, 2012 at 10:43 am

    The consultation process was based on the Department for Education’s (DfE) guidelines on school uniform. The issue of school uniform is not dealt with by statute, therefore the starting point is the DfE guidance, not law, which states that schools should:

    Does this mean the school does not have to follow the law on this?

  12. DW
    July 31, 2012 at 3:30 pm

    I doubt that the academy’s funding agreement in question will require it to ‘have regard’ (that is generally the way it is put) to the DfE guidance on school uniform, but you should check. If it does, then the academy must follow the guidance unless it has a good reason not to do so. If it does not then the guidance has no role. There are no other legal requirements on uniform, other than the provisions of the equality legislation which could have an impact – see my post about race discrimination and hair cut policies (the ‘corn row case’).

  13. Lisa Turrell
    January 21, 2013 at 1:30 pm

    Hello David,

    Richard Hatcher at BCU has pointed me in your direction … Many parents in Solihull (West Midlands) would like some guidance on where we go with regards to challenging Tudor Grange Academy on changing it’s admissions policy for 2013/14, which affects many of us with children currently in Junior schools within catchment.

    Our catchment Secondary school is or should I say ‘was’ Tudor Grange School which is now a glorious academy !! They have proposed changes to their admissions policy from 2013/14 and are in a period of consultation. The announcement appeared very quietly on their website on 19th Dec (after schools had broken up for Christmas). We discovered that they joined with two local faith Schools – St James Junior School and St Alpheges Junior School. A change in policy would give priority to children from these schools over catchment, many of these children who attend these ‘aligned schools’ are NOT in catchment. To say that that this has caused absolute outrage in Solihull is an understatement.

    Where are our options?

    Kindest Regards,

    Lisa

  14. steve
    January 30, 2013 at 8:50 pm

    hi daved is a consoltaton legal is thay have lied in the consoltaton paper for comment on.

  15. marek pruszewicz
    February 5, 2013 at 9:34 am

    Grammar Schools in Bucks (now academies) are proposing far reaching changes to the 11 Plus this autumn. I’m fairly sure that the consultation is not legal – too short, not enough detail, no time to consider responses, decision made in advance anyway, no explanation about why the changes are needed – how do I challenge?

  16. DW
    February 5, 2013 at 6:09 pm

    Sounds like you need to get in touch with one of the firms of solicitors that specialise in that sort of thing!

  17. DW
    February 5, 2013 at 6:11 pm

    Consultation is unlikely to be lawful if consulting body deliberately gives misleading information to consultees.

  18. DW
    February 5, 2013 at 6:13 pm

    I have heard that both the British Humanist Association and the National Secular Society are taking an interest in all this.

  19. Jenny
    January 20, 2014 at 7:52 pm

    Academy in consultation period about proposal to relocate school 8 miles away. Letters were sent to parents in October announcing the plan and requesting feedback for consideration stating it was early stages of consultation. However, the formal consultation period has now been announced as end of Jan and it has been announced that any responses received prior to that date will not be considered, despite being requested at the time and so everyone will have to re submit their replies. Please can you let us know how this can be challenged.

  20. Shirley Burnham
    March 17, 2014 at 5:38 pm

    It seems odd that I do not find a space to identify myself on my council’s consultation forms. This will permit me or others to submit multiple responses, leading to a fraudulent result. Is there no legal requirement that a consultation be so organised as to satisfy the decision-maker that each submission is a bona fide one? I cannot readily find an answer on your Blog. Actual fraud would be hard/impossible for a consultee to prove as he does not scrutinise the responses. However, the forms I have in front of me seem to make our consultation process vulnerable to ‘potential’ fraud. I hope you can clarify whether I have made a valid point, or not. Many thanks.

  21. DW
    March 19, 2014 at 8:07 pm

    I agree it is odd. But the problem with ‘consultation’ is that it is not a referendum/vote. And so it is perfectly lawful for whoever consults to ‘take into account’ all the responses without actually doing what the majority, or indeed any of them, were calling for. What in practice happens is that, if consultees are generally supportive of what is being proposed, the consulting person/organisation will talk up the fact that their proposal got popular support; if not, then they will downplay (or not even mention) the numbers of responses or the number opposed. It may be that whoever is consulting you has simply messed up in not including a place for people to identify themselves. But it may be that they are already planning to downplay the number of responses or whether they were supportive, or whatever.

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