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]