Is Your Engagement Exercise Actually a Consultation? The Legal Test That Decides

The decision to consult or engage is rarely treated as a risk question. Most organisations approach it as a process question: what do we want to find out, and from whom? Recent case law suggests a different starting point is needed. Before you choose your method, understand what a court may make of it.

The distinction that matters

Engagement and consultation are not the same thing, but they are not always legally distinct either.

Public consultation is a formal process of inviting views on a defined proposal, at a stage when those views can still change the outcome. The Gunning principles, derived from decades of judicial review, set the minimum standard: proposals must be at a genuinely formative stage; consultees must receive enough information to respond intelligently; adequate time must be given; and responses must be conscientiously considered before a decision is made.

Engagement, by contrast, tends to be iterative and relational. It may happen before any formal proposal exists, or run alongside project delivery. It typically involves dialogue, information-sharing, and stakeholder relationships rather than structured input to a defined decision.

The problem is that this distinction does not always survive contact with a court.

When the label stops protecting you

In R (Binder) v Secretary of State for Work and Pensions [2022], the High Court held that the government’s “UK Disability Survey” was in effect a consultation, because it formed part of policy development affecting identifiable claimants. The survey asked fixed questions, offered no opportunity to shape proposals, and was never framed as a consultation. None of that mattered at first instance: the court applied Gunning and found the process wanting.

The Court of Appeal later overturned that finding, concluding the survey was information-gathering rather than consultation. But the case exposed the risk in plain terms. An exercise that collects public views, even informally, can be characterised as consultation if it connects to a decision that affects people in a material way.

The R (Police and Crime Commissioner for the West Midlands) v Secretary of State for the Home Department [2024] illustrated the same risk from the opposite direction. A process presented as consultation was found to have omitted information so significant that consultees could not respond intelligently, regardless of what the authority called it. The label and the substance did not match, and the label did not prevail.

The particular risk in programmes of engagement

A single engagement event carries some risk. A sustained programme carries more.

When an organisation runs repeated engagement activities, maintains stakeholder panels, or conducts what it describes as “continuous engagement” over months or years, it builds a record. Courts can look at that record as a whole. If the pattern of activity looks like consultation, it may be treated as one.

Three specific risks follow from this. First, if the programme was not designed to meet Gunning standards, it almost certainly cannot be shown to have met them retrospectively. Timing is often the first casualty: engagement programmes frequently run alongside project development rather than before proposals are fixed, which puts the first Gunning criterion in immediate difficulty.

Second, the information provided through engagement tends to be promotional rather than analytical. Stakeholders in an engagement programme often receive information about a project’s benefits rather than a balanced account of options, costs, and trade-offs. That creates exposure on the second criterion.

Third, engagement programmes rarely produce decision records. Consultation law requires conscientious consideration of responses. Engagement programmes typically produce relationship logs and notes of attendance. These are not the same thing, and courts know the difference. In R (West Dulwich Action Group) v London Borough of Lambeth [2024], a local street scheme decision was found unlawful precisely because a detailed written submission was not considered before the order was made.

What makes engagement attract Gunning scrutiny

Courts look at substance, not labels. An exercise is more likely to attract scrutiny if it connects to a specific proposal or decision with material consequences for participants, if participants have been told their views will be taken into account, or if the organisation has made a prior commitment to involve the public. The risk increases further when responses are gathered in a structured way and when the exercise runs while a decision is actively in development.

Any combination of these features increases the likelihood that Gunning will be applied, regardless of what the exercise is called.

Assessing the risk before you decide

The practical implication comes before the method selection, not after. When designing any public-facing exercise, three questions should come first.

• Is there a legal duty to consult? If yes, the method must meet that duty. No amount of relabelling substitutes for a lawful consultation.
• If there is no formal duty, does the exercise connect to a decision that affects identifiable people in a material way? If yes, the risk of judicial review is live regardless of the label.
• If both answers are no, what is the purpose of the exercise? Information-gathering, relationship management, and service improvement all have legitimate uses. But once an exercise connects to a decision, the risk profile changes.

The Gunning criteria are not just for consultations

tCI’s position is that the Gunning criteria represent minimum standards of fairness in public decision-making, not a checklist reserved for formal consultations. Organisations that treat them as applicable only to processes they have labelled as consultations are managing a narrower set of risks than the courts have defined.

The safer approach is to treat Gunning as a design standard for any structured engagement connected to a decision. That does not mean running every stakeholder conversation as a full public consultation. It means asking, before you start, whether the process you are designing would survive scrutiny on timing, information, adequate time, and consideration of responses.

If it would not, you have a choice: redesign the process or accept the risk. What you cannot do is assume the label will protect you.

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How tCI Can Help

Advice and Guidance
A tCI faculty member will work alongside you to support the development of your decisions and engagement approach. We provide independent, constructive advice at critical stages, helping you strengthen stakeholder mapping, test communication strategies, and plan robust post-decision engagement. Our role is to act as a critical friend, offering practical recommendations grounded in consultation law and good practice that build confidence in your process.

Risk Assessment
Early identification of legal, political or reputational risks in your engagement approach. Using tCI’s five-risk methodology, we spot gaps before challenge arises, helping you strengthen stakeholder communication and demonstrate procedural fairness from the outset.

Executive Briefings
Concise updates for senior leaders on consultation law, engagement duties and post-decision risks. Helps boards and leadership teams make confident, defensible decisions when under pressure, with clear guidance on what good engagement looks like after difficult choices are made.

Whether you’re preparing for a high stakes service change or building defensible evidence for complex decisions, we can help.

Contact tCI: hello@consultationinstitute.org