Consultation: requirement and process

The following Public Law practice note provides comprehensive and up to date legal information covering:

  • Consultation: requirement and process
  • How and when does the duty to consult arise?
  • Statutory duty to consult
  • Duty to consult arising from public law principle
  • Promise to consult
  • Established practice of consultation
  • Conspicuous unfairness
  • Whom to consult
  • How must a consultation be conducted?
  • When to consult—the 'formative stage'
  • More...

Consultation: requirement and process

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.

The Administrative Court summarised when consultation is required, in R (Plantagenet Alliance Ltd.) v Secretary of State for Justice:

‘There are four main circumstances where a duty to consult may arise. First, where there is a statutory duty to consult. Second, where there has been a promise to consult. Third, where there has been an established practice of consultation. Fourth, where, in exceptional cases, a failure to consult would lead to conspicuous unfairness. Absent these factors, there will be no obligation on a

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