Wow! The fact that the High Court has outlined some key principles of a fair consultation could be an important development in public affairs and stakeholder engagement in the UK.
Public bodies and in some circumstances commercial companies delivering public services on their behalf must now , more than ever, be very mindful of what the High Court is saying. There’s nothing new in the detail but by bringing all the case law together like this a line is clearly being drawn in the sand: so watch out if you cross it!
Upon reviewing the case law, the court identified the following nine principles when considering a challenge to a consultation process:
- The key issue for the court is whether the consultation process was “so unfair it was unlawful” (per Devon County Council v Secretary of State for Communities and Local Government  EWHC 1456 (Admin)).
- To be lawful, a consultation must (i) be undertaken whilst proposals are still at a formative stage; (ii) include sufficient reasons for proposals; (iii) allow adequate time for response; and (iv) be conscientiously taken into account by the decision-maker.
- Consultees should be given an opportunity to address adverse information that is credible, relevant and significant to the decision.
- The source of such adverse information is a, but not the only, factor relevant to fairness of non-disclosure.
- The requirements of fairness depend on the context of the decision, regarding which the court will take account of the decision-maker’s view.
- The lawfulness of not disclosing information depends on the reason for non-disclosure; non-consideration by the decision maker does not itself justify non-disclosure to the consultees.
- Non-disclosure, even in the context of an otherwise highly transparent consultation process, can limit a consultee’s ability to respond intelligently to a central aspect of an appraisal process.
- More intrusive decisions generally require a higher level of procedural fairness.
- The court should be slow to allow administrative considerations to prevent the release of information when fairness requires it.
What this all means is that managers must be aggressively ‘safety checking’ consultations at key stages, to make sure they are abiding by these principles and raise the alarm if they feel their organisation is at risk of not doing so. This is their job as the custodian of the consultation process.
Luckily a mechanism for safety checking consultations exists in the form of The Consultation Institute’s Compliance Assessment Scheme. This scheme is designed to help organisations deliver good practice and almost by default would ensure that they adhere to the High Court’s principles.
Jonathan Bradley, Director at Participate Ltd , is an Approved Associate of the Institute and has helped many public bodies achieve good practice consultation standards. For more information about TCI’s Compliance Assessment please contact firstname.lastname@example.org