Adequate time must be given for consideration and response

This is the fourth short article in a six part series which will consider what is necessary for a consultation to be lawful. The other articles will be published this week, one each day.

In relation to the third Gunning rule - adequate time must be given for consideration and response - case law sets no prescribed time period for consultation, although it is clear that ‘adequate’ time must be given. What is adequate will depend on the particular facts of each case.[1] It means enough, rather than ample, time. Consultation periods can be shorter than usual if there are good reasons for the urgency. Conversely, it has been held that a consultation period of one month including Christmas was too short in the circumstances of a particular case.[2] 

The courts have rejected the argument that “a decision-maker can routinely pick and choose whom he will consult”, holding that “a fair consultation requires fairness in deciding whom to consult as well as fairness in deciding the subject matter of the consultation and its timing”.[3]

The time required to respond to a consultation so that it is fair will depend on the circumstances of the case,[4] including the complexity of the response required.[5] In order to demonstrate unfairness, a claimant should adduce evidence to demonstrate that respondents could not reasonably respond in time.[6] 

[1] Electronic Collar Manufacturers Association v SSEFRA [2019] EWHC 2813 (Admin)at para 150.

[2] R (Green) v Gloucestershire CC [2011] EWHC 2687 (Admin).

[3] R (Milton Keynes Council) v SSCLG [2011] EWCA Civ 1575 at para 32.

[4] See eg R (Green) v Gloucestershire County Council [2011] EWHC 2687 (Admin) at paras 137, 141.

[5] See eg R v Secretary of State for Education and Employment, ex p Morris [1996] ELR 162.

[6] R v Secretary of State for the Environment, ex p GLC & ILEA (3 April 1985, unreported, per Mustill LJ). 

The next article in this series will look at the fourth of the Gunning requirements: the product of consultation must be conscientiously taken into account in finalising the proposals.

Richard Honey, Francis Taylor Building