Consultation must be carried out at a time when proposals are still at a formative stage

This is the second 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 first principle, it has been said that “the requirement that consultation must be at a time when proposals are at a formative stage can be expressed as a requirement that the decision maker has not pre-determined the issue upon which he goes out to consultation, i.e. that he has an open mind. That said… to have an open mind does not mean an empty mind”.[1] 

Consultation requires that there must be a real opportunity for those consulted to make representations to the decision-maker. The decision-maker should keep a “responsive and open mind” and a “receptive mind”,[2] but can have a pre-disposition as long as there is no actual pre-determination.[3]

It is well-established that there can be consultation on a ‘preferred option’. The fact that a provisional view has been taken, or a preferred option identified, does not prevent a consultation exercise being conducted in good faith at a stage when the position is still formative in the sense that no final decision has yet been made. There is no conflict between a person keeping an open mind and consulting on the preferred step; it is permissible to consult on proposals rather than options which are not being proposed.[4]

[1] Royal Brompton and Harefield NHS Foundation Trust v Joint Committee of Primary Care Trusts [2011] EWHC 2986 (Admin) at para 16.

[2] R v Warwickshire City Council, ex p Boyden (1991) COD 31 at p32; R (Partingdale Lane Residents’ Association) v Barnet LBC [2003] EWHC 947 (Admin) at para 45.

[3] Electronic Collar Manufacturers Association v SSEFRA [2019] EWHC 2813 (Admin) at para 139.

[4] R (Bailey) v Brent LBC [2011] EWHC 2572 (Admin) at para 90.

The next article in this series will look at the second of the Gunning requirements: consultation must give sufficient reasons for any proposal to allow intelligent consideration and response.

Richard Honey, Francis Taylor Building