The Government has recently published a revised set of consultation principles for government departments conducting consultations. The revised principles come against a background of successful judicial review challenges concerning the fairness of consultation processes.
Briefly, whilst each judgment in relation to the fairness of a consultation process is fact and context sensitive, the Court has recently determined that:
- Fairness may require consultation on other previously discarded options. The key question was said to be ‘whether such reference or information is necessary in order for the consultees to express meaningful views on the proposal’ (R(Moseley) v LB Haringey  UKSC 56)
- However, when assessing whether the inclusion of such information is necessary, the level of general knowledge of the participants will be taken into account – including their knowledge of the available alternative options and the consequences of those options (R (Rusal) v London Metal Exchange  EWCA Civ 1271)
- A failure to consult on assumptions made in key research in relation to criminal legal aid reforms was unfair, particularly in the context of the potential for the decision being consulted on to have a profound effect on the market and livelihood of those being consulted (R(LCCSA) v Lord Chancellor  EWHC 3020)
- A public commitment to being transparent in providing financial information to consultees gave rise to a legitimate expectation of a transparent consultation. Consultees should have been provided with sufficient information to test assumptions underlying the proposal, understand why alternatives had been rejected, and be able to make an informed response (BDA v GDC  EWHC 4311)
The government says that the revised consultation principles will improve the way it consults by adopting ‘a more proportionate and targeted approach.’ The revised principles place emphasis on the consultation being accessible, for example, in terms of the language used, the process of engagement and length of consultation. The consultation should also be targeted and tailored to the needs of particular groups.
The cases referred to above concern the sufficiency of the information provided to consultees. In this respect, the principles say that consultations should “give enough information to ensure that those consulted understand the issues and can give informed responses” and that they should include “validated assessments of the costs and benefits of the options being considered when possible”.
Both the revised principles and the recent judgments provide useful guidance to public bodies about to launch a consultation process. The revised consultation principles can be found here:
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