Choosing between consultation and involvement is a legal decision as much as a practical one. This article explains how the formative stage, the first of the Gunning principles (the legal test for fair public consultation in the UK), should guide your route, and what current NHS, local government and planning guidance expects before options are fixed.
What is the formative stage and why does it decide your route?
The formative stage is the point at which a proposal can still be changed by what people tell you, and it is when consultation must happen. It is the first of the Gunning principles, the legal test for fair public consultation in the UK.
The principle comes from R v London Borough of Brent ex parte Gunning (1985) 84 LGR 168, and was endorsed by the Supreme Court in R (Moseley) v London Borough of Haringey [2014] UKSC 56.
The key issue is influence, not the calendar. An organisation may not formally decide until December, but if by September it has settled its objectives, discarded alternatives and designed everything around a preferred model, December is too late to matter. The formal decision point and the point where realistic choices narrow are different things, and the law cares about the second. Consulting on the detail of a choice already made is not genuine consultation. The Cabinet Office Consultation Principles warn against asking questions where a final view has been reached, and the Local Government Association (LGA) good practice guidance on effective decision-making asks whether you engaged the right people early enough to help shape the proposal.
When should you involve people rather than consult them?
Involve people while you are still working out the problem, what matters to those affected and which approaches are viable. Consult once you have a developed proposal that people can respond to intelligently and that you remain genuinely willing to change. The first question is not “how shall we consult?” but “what are we genuinely asking people to influence?”
Early involvement can shape the criteria by which options will be judged, which gives people more influence than ranking finished options. NHS England’s service change guidance describes involving people in testing emerging options, setting criteria and options appraisal, followed where required by formal consultation. The Planning Act 2008 pre-application guidance takes the same two-stage approach for nationally significant infrastructure projects (NSIPs), the largest schemes, which need a Development Consent Order (DCO), the statutory consent for such projects.
The Court of Appeal’s decision in R (Nettleship) v NHS South Tyneside CCG [2020] EWCA Civ 46 shows the model working. Clinical commissioning groups (CCGs), since replaced by integrated care boards (ICBs), ran a listening phase, narrowed a long list of options and then consulted on those that remained. The court held that they did not have to consult on options that were not genuinely viable, but that fairness could still require reference to arguable discarded alternatives and an explanation of why they were set aside. The ruling turned on section 14Z2 of the National Health Service Act 2006, which allows involvement through consultation, information or other means. The equivalent duty on ICBs now sits in section 14Z45. Nettleship is not a licence to decide first and consult afterwards.
How do you stop involvement becoming consultation by another name?
Tell people plainly what they can influence and what is fixed, keep a clear record of how their input shaped the options, and never use the word engagement to avoid a statutory duty to consult. Calling an exercise involvement does not change the law, and it does not make a predetermined decision open.
This is where process failures happen. An organisation involves people early, ignores what it hears, builds a preferred option internally and then runs a technically compliant consultation. That is not meaningful participation, and the existence of a consultation is not evidence of it. Where legislation says consult, you must consult. Where it does not, the form of participation should match the stage and purpose of the decision. Either way, participants should know what they can and cannot influence, a point the LGA’s local government reorganisation engagement guidance makes directly. Involve’s guidance on public engagement adds that engagement should not be used where crucial decisions have already been taken.
Keep the record, too. NHS England links an accurate engagement record to the ability to withstand scrutiny and judicial review, the court process for challenging how a public body has made a decision. Early involvement is not the informal stage. It is often the evidence you will rely on later.
How tCI Can Help
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Expert guidance when the stakes are highest. One to one and small group coaching for senior officers navigating legally exposed or politically contentious decisions. Strengthen your judgement on proportionality, evidence standards and challenge management. Essential for organisations that may face judicial review risk or major service changes.
Whether you’re preparing for a high stakes service change, building long term consultation capability, or need confidence that your evidence approach will stand up to scrutiny, we can help.
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