Consult Too Late and It Might Be Thrown Out: 3 Checks to Meet the First Gunning Principle

This is the first in our series on the Gunning Principles, if you would like to talk further email us at hello@consultationinstitute.org

A public consultation is only lawful if it happens while proposals are still open to change. Consult after you’ve effectively decided, and you risk judicial review, expensive delays, and a collapse in public trust. The risk is real. Courts have thrown out consultations that began after decisions were effectively made. One council lost its case when a politician had already promised the decision in a manifesto. The cost: starting over, legal fees, and damaged credibility with stakeholders.

What “Formative Stage” Actually Means

This is about timing—when in your decision-making process you run the consultation. “Formative stage” means you’re consulting while the proposal is still being formed (shaped, developed). Think of it like wet clay—still malleable, not yet fired in the kiln.

The balance you must strike:

1. Open enough: You haven’t made a final decision or gotten formal sign-off. You can still genuinely change direction based on what people tell you. If someone asks “Could you still choose option B instead of option A?” the honest answer must be “yes.”

2. Concrete enough: You can’t just say “We’re thinking about transport—what do you think?” People need specific proposals to react to. They need to see routes, costs, timescales—enough detail to give informed feedback.

Example of getting it right: “We’re considering two options for the new cycle lane: Route A via High Street, or Route B via Park Road. Here are the maps, estimated costs, and traffic impacts for each. We haven’t decided which to build. Your feedback will help us choose, and might lead us to modify either route.”

Example of getting it wrong: “We’ve approved Route A and signed the contractor. We’re now consulting on what colour to paint the lane markings.” ← This is predetermination. The big decision (which route) is already made.

The Three Risks of Getting It Wrong

In our experience there are three risks of getting it wrong.

• Legal challenge and delays: Losing a judicial review forces you to start over, wasting months and incurring substantial costs.
• Loss of trust: If stakeholders believe the process was a tick-box exercise, confidence in your organisation plummets. Future engagement becomes harder.
• Predetermination claims: Any appearance of a closed mind undermines the entire process. Transparency isn’t optional—it’s the foundation of defensible consultation.

3 Checks to Keep Your Consultation Defensible

1. Ensure No Decision Is Taken First

Before launching, confirm that no final commitments are on the table. State plainly in all materials that no binding decisions have been made yet. Example wording: “We’re exploring options X and Y. We haven’t chosen between them, so your input will shape the plan.” Keep this statement visible throughout your consultation materials. If you can’t honestly make this statement, your consultation is too late.

2. Spell Out What Can Change vs What’s Fixed

At the start, publish a simple table of Negotiables vs Non-Negotiables. This single step prevents most predetermination accusations.

Negotiables might include:

• Site locations or layouts
• Service hours or delivery methods
• Implementation timeline and phasing
• Supporting measures (training, transport links)

Non-negotiables are fixed constraints:

• Statutory duties and legal obligations
• Approved budget or funding limits
• Core policy objectives
• Resources already committed

Being explicit shows you’re listening where it counts. It also protects you from the accusation that “everything was already decided.”

3. Document an Open-Minded Process

Keep records that show how ideas evolved during consultation: memos, meeting notes, proposal drafts with version tracking. When decision-makers revise the plan in response to comments, save evidence of that change. Note which feedback prompted which adjustments. This audit trail proves you genuinely took consultees’ views on board. It’s your best defence if someone later claims the proposal was locked in from day one.

The Practical Payoff

Following these checks keeps your options genuinely on the table and your process defensible.

These three checks directly address the first Gunning Principle: consultation must happen when proposals are still at a formative stage. This principle, established in R v Brent London Borough Council ex parte Gunning (1985), is the foundation of lawful consultation in the UK. Get it wrong, and courts will strike down your entire process. The result: smoother engagement, better ideas (because people feel heard), and far less risk of having to repeat the exercise later.

These three checks directly address the first Gunning Principle: consultation must happen when proposals are still at a formative stage. This principle, established in R v Brent London Borough Council ex parte Gunning (1985), is the foundation of lawful consultation in the UK. Get it wrong, and courts will strike down your entire process.

The result: smoother engagement, better ideas (because people feel heard), and far less risk of having to repeat the exercise later.

For consultation leads, engagement managers, and communications directors, understanding these frameworks enables more advanced outreach strategies. You can create programmes that connect with diverse communities, remove real barriers to participation, and promote broader policy goals, all while maintaining the independence and integrity essential to proper consultation.

Ultimately, behaviour change models and consultation practices are complementary. Behavioural science offers theoretical foundations for understanding motivation and decision-making. Consultation provides the formal mechanism to gather views, test assumptions and feed citizen input into policy development. Together, they can deliver more effective and inclusive engagement provided practitioners uphold legal obligations and maintain respect for participants as partners with agency, not subjects to be steered.

How tCI Can Help

tCI reviews your consultation plans before you launch. We check compliance with the Gunning Principles and identify predetermination risks early—when you can still fix them.

What you get: Independent assurance that your process is defensible, plus a report you can show legal teams and decision-makers.

Why: Confidence your consultation will withstand challenge and less risk of costly judicial review.

Planning a high-risk consultation? Contact tCI for Quality Assurance at hello@consultationinstitute.org