Consultation: requirement and process
Produced in partnership with Carl Gardner of Head of Legal
Consultation: requirement and process

The following Public Law guidance note Produced in partnership with Carl Gardner of Head of Legal provides comprehensive and up to date legal information covering:

  • Consultation: requirement and process
  • How and when does the duty to consult arise?
  • What is the source of legal requirements relating to consultation?
  • Statute
  • Public law
  • What are the requirements?
  • Whom to consult
  • When to consult—the 'formative stage'
  • Sufficient reasons
  • Adequate time
  • more

Any consultation exercise carried out by a public authority in relation to a proposed decision must be conducted at a time when proposals are at a sufficiently formative stage, with adequate information, and time to allow a proper and informed response, leading to an open-minded consideration of responses.

The legal requirements of consultation, first laid down in R v Brent London Borough Council ex parte Gunning, were approved by the Supreme Court in the context of a statutory requirement on a local authority to consult in Moseley.

How and when does the duty to consult arise?

There is no general duty for public authorities to consult those affected by their decisions; but a duty to consult may be imposed by statute, or may arise in public law either because of the duty to act fairly, or as a result of a legitimate expectation.

As Lord Wilson put it in Moseley:

‘A public authority's duty to consult those interested before taking a decision can arise in a variety of ways. Most commonly, as here, the duty is generated by statute. Not infrequently, however, it is generated by the duty cast by the common law upon a public authority to act fairly. The search for the demands of fairness in this context is often illumined by the doctrine of legitimate expectation; such was the source,