The duty to consult imposed on public bodies in the UK is a cornerstone of administrative law, ensuring that decisions affecting individuals or groups are made fairly and transparently. This duty can arise in several ways, most commonly through statute, legitimate expectation, or the requirements of common law fairness.
A statutory duty to consult is the clearest duty. Statutes or Regulations may require a public body to consult specific people or groups before making certain decisions. In these cases, the body must follow the process set out in the relevant legislation. However, even where the law sets out who must be consulted and how, the courts may still look at whether the consultation was carried out fairly, unless the statute clearly excludes such scrutiny.
Beyond statute, a duty to consult can also arise from what is known as a “legitimate expectation.” This occurs when a public authority has promised, either explicitly or by consistent past practice, to consult before making a decision. If people have come to expect consultation in certain circumstances, the courts may hold the authority to that expectation.
Even without a statutory requirement or legitimate expectation, common law principles of fairness can sometimes require consultation. This is especially true where a decision will have a significant impact on a particular group or individual. The courts have made clear that there is no universal rule requiring consultation in every case. It is heavily dependent on the context and circumstances.
The consultation process
When consultation does take place, whether required by law or undertaken voluntarily, it must be meaningful. The courts have set out four key principles (as per R v Brent LBC ex parte Gunning 84 LGR 168) that define what fair consultation looks like. First, consultation must happen when proposals are still at a formative stage, so that consultees have a real opportunity to influence the outcome. Second, those being consulted must be given enough information to understand what is proposed and why, so they can respond intelligently. Third, they must be given adequate time to consider and respond. Finally, the decision-maker must genuinely consider the responses before making a final decision.
Fairness also means that consultation materials should not be misleading or one-sided. If proposals change significantly during the process, further consultation may be needed. The actual decision-maker, and not just staff, must consider the results of consultation before reaching a conclusion.
If these standards are not met, those affected can challenge the process through a Judicial Review Claim. Courts have the power to quash decisions made without proper consultation or to require authorities to consult properly before proceeding.
In summary, the duty to consult is about ensuring that public bodies make decisions openly and fairly, giving those affected a genuine chance to have their say. Whether imposed by statute, expectation, or fairness, it is an essential part of proper governance and accountability in public law.
At Dyne Solicitors, we specialise in Judicial Review claims. We offer advice and representation for regulatory, commercial and property litigation. For more information, please contact Alex Sandland or Patrik Jones-Wright.