What Constitutes Proper Consultation

In proper consultation, the decision-makers recognise that they are fallible, and so explain what they have done and what they are planning to do in enough detail for people to check that there are no errors.

There are legal requirements for proper consultation from the Court of Appeal [1] [2]. The nature of consultation was defined by Lord Woolf MR in R v North and East Devon HA ex p Coughlan [1999] EWCA Civ 1871, where four essential features were set out:
108. It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper,
  • consultation must be undertaken at a time when proposals are still at a formative stage;
  • it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response;
  • adequate time must be given for this purpose;
  • and the product of consultation must be conscientiously taken into account when the ultimate decision is taken ( R v Brent LBC ex parte Gunning [1986] 84 LGR 168).

The UK Government has also issued guidance on consultation that Government departments and other public bodies should follow [3].

This includes
Engagement should begin early in policy development when the policy is still under consideration and views can genuinely be taken into account.
Every effort should be made to make available the evidence base at an early stage to enable contestability and challenge.

Clive Sheldon QC has provided a detailed account of the law [4].


[1] R. v. North and East Devon Health Authority, ex parte Coughlan (1999)

[2] The keys to consultation (2011)

[3] Consultation Principles: Guidance (last updated 2013) UK Cabinet Office - or download from here

[4] Consultation and Legitimate Expectations (2012) Clive Sheldon QC