Author: Rhion Jones, The Consultation Guru
For communities and campaigners who are anxious about plans and projects, it is may be a consolation to hear that, here in the UK, we have one of the most robust public consultation frameworks in the world.
There are many reasons for this. Our democracy has often been more consultative than most, with checks and balances found all over our unwritten constitution. Statutory provisions for consultation can be traced back to the 1947 Town & Country Planning Act, and English common law has developed a vast body of legal precedents from challenges to the legality of consultation exercises.
Local authorities and other public bodies often face conflicting priorities and frequently have to make trade-offs between unpalatable options. At times, the whole point of consultation is to help decision-makers resolve these dilemmas by ensuring that stakeholder opinions are properly gathered and taken into account. Unfortunately, not every consultation is undertaken well, and as the legal rules and best practice have evolved, organisations – including planning authorities - have occasionally fallen short of the required standards.
Where this happens, it is perfectly legitimate for campaigners who feel they have not been adequately consulted to shout from the rooftops. If readers of this article feel they might be in this position, this is what you may need to know:
So what are the Gunning rules?
Stripped of some of the legal jargon, to be lawful, a consultation must:-
How do I challenge a consultation I think is unlawful?
Although the Gunning Principles sound simple and straightforward, obtaining a Court judgment is neither easy nor cheap. Going to judicial review can cost £50,000 or more, and although it is possible to raise the money through crowdfunding and similar ways, it is a serious matter and should really be a last resort.
Even if you persuaded the High Court that the consultation was unlawful, it might not necessarily set aside the decision that a defendant organisation took.
It is far better to secure a cost-effective assessment of whether the consultation was sufficiently in conformance with the rules, then if this looks doubtful – to challenge the consultor, and maybe use the media to publish your assessment.
Remember that a legal challenge is not the only way to fight proposals you dislike. Ultimately many decisions are political and can only be overturned by a blend of legal, media and political challenges.
When Elizabeth Gammell and I published The Politics of Consultation in 2018, we were reflecting years of learning that the mechanics of public consultation are important – so that everyone’s voice gets heard properly. But that in the end, consultation is merely the process, and the political context matters even more.
For anyone trying to figure out how best to react to proposals which are controversial, the correct advice is to ensure that the best possible consultation is undertaken. And if it isn’t, mount a serious challenge, using the law when appropriate.
Rhion Jones LL.B was the original Founder of The Consultation Institute, and now uses his many years’ experience of public engagement to inspire and train new generations of practitioners. He has specialised in the Law of consultation, having delivered over 100 training courses since 2012. As the Consultation GuRU, he publishes regular blogs on www.consultationguru.co.uk and acts as an adviser to many organisations.