This note provides guidance to Officers on when they should carry out a public consultation when they are making changes to services or implementing a project. It also sets out the principles that need to be followed in order for a consultation to be appropriate and lawful.
Do I need to consult?
There are three stages to this question:
1. Is there a specific duty to consult that is set out in the legislation and/or statutory guidance that I am working under? For example consultation is required on:
a) the Council’s proposed budget (Local Government Finance Act 1992)
b) Matters of Housing Management (s105 Housing Act 1985)
c) Public Sector Equality Duty (s149 Equality Act 2010)
If a consultation is required, the people specified in the legislation as needing to be consulted must be consulted.
2.Does the “Best Value” duty to consult apply? Under s3 of the Local Government Act 1999 and Best Value Guidance, a consultation is needed if:
a) the Council is making changes (and in particular reductions) to the services being delivered;
b) the Council is reducing or ending funding to an external organisation
If a consultation is required then representatives of tax/rate payers, services users and interested parties must be consulted.
3.Is a consultation needed in the interests of fairness? For example:
a) Have we previously said that we would consult before doing something?
b) Have we consulted in the past before doing the same thing?
c) Will the impact of the decision or project be particularly serious on one location or section of the public?
d) Is this a significant change to the way the Council has done things in the past?
If a consultation is needed, the affected people or bodies need to be consulted.
What makes a good (and lawful) consultation?
The Courts have given some guiding principles to follow in order to ensure a consultation is satisfactory. These are known as the Gunning Principles. These principles are:
a) The consultation must be at a time when proposals are still at a formative stage. It must not be a “box-ticking exercise” which cannot impact on the decision being made.
b) The proposer must give sufficient information to allow intelligent consideration and response.
c) Adequate time must be given for consideration and response.
d) The product of consultation must be conscientiously taken into account in finalising any decision proposals.
 R v London Borough of Brent, ex p Gunning  LGR 168