Originally published 8 September 2015. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
Two years ago, at the Institute’s first Conference, we invited Lord Justice Sedley to talk about the Gunning Principles – a set of rules for public consultations that have assured him a lasting position in the history of the law of consultation. He first propounded the rules (they were first known as the Sedley propositions) in 1985, so this year we celebrate thirty years of the Gunning Principles. They have increasingly formed the backbone of any judgment on the legality of a consultation. Maybe we should hold a party?
The beauty of the Gunning Principles is that they are obviously fair to both consultor and consultee. Losing a judicial review for failure to follow the Principles almost certainly means that consultees have been significantly disadvantaged and recent years have seen a large number of cases where public bodies have had their decisions challenged. Last October the Supreme Court finally endorsed the Gunning Principles (in the Moseley v Haringey ruling) and no longer can any organisation claim it did not realise the need to conform to them.
Like any set of rules, the Gunning Principles have evolved as difficult cases presented themselves. For example, we have learnt that:
- A consultation undertaken by a Councillor who relied upon his Manifesto commitment to open a previously-closed ‘rat run’ was unlawful because of pre-determination (GUNNING ONE)
- A Health Board ran a serious risk of prejudicing its consultation when a ‘secret report’ written years earlier came to light (GUNNING ONE)
- A major local authority had consulted unlawfully because it had not been able to explain the implications of a proposed withdrawal of social care services from those with ‘substantial’ needs (GUNNING TWO)
- The High Speed Two consultation had been unfair in designing a compensation scheme having consulted on a different set of criteria than the ones relied upon in taking their decision (GUNNING TWO)
- A refusal by a District Council to allow enough time for a Parish Council to respond to a consultation about a massive new warehouse was unlawful (GUNNING THREE)
- Announcing a decision so quickly after the end of a consultation suggested that a Government department had not given conscientious consideration to proposals for a new policy on water rates (GUNNING FOUR)
The Institute has built a library of over 80 Judicial Review cases where the judgments are relevant to the law of consultation; we add to them at the rate of about one or two a month. There are clear trends. One is to rely increasingly upon the doctrine of legitimate expectation in establishing whether and how to consult. Another is a greater willingness by the Judges to look at the way in which options have been developed.
But in all this, there may be an additional factor – so far largely neglected. This is maybe a ‘Gunning Gap’
Our fifth Gunning Principle would state that to be a lawful consultation, a reasonable and proportionate attempt should have been made to engage with and obtain the views of stakeholders with a significant interest in the issue. In other words, satisfying the other Gunning Principles will be of limited value if the consultation has not reached its target audience.
Introducing this rule would make life difficult for many organisations that routinely mount going-through-the-motions consultations, receive few contributions, fail to engage with those most affected, and take their decisions in the fond belief that they have consulted adequately. For people most affected by consultation proposals this might introduce an important safeguard to ensure fairness, and is, in a way, building upon the important 2014 case of LH v Shropshire CC where the Court deemed it unlawful for the Council to close a day centre without explicitly consulting those people who used it.
The huge transformation being wrought in Health and Social Care demonstrates perfectly why this is an important principle to follow. Appealing to a wider public for views on service change may be well and good, but ultimately it is the recipients of public services that most need to be in dialogue. This includes the members of the older generation and their carers; it includes young vulnerable adults or children – and their parents. Our recent Briefing Note 14 on Transforming Care – the need to consult lawfully highlights the decisions that Councils need to take into account.
In recent months, we have had several Judicial Reviews revolving around who is consulted, and they extend beyond the fields of Health and Social Care. We think this may therefore be a universal requirement and, therefore, time-honoured as the Gunning Principles might be, the time may still be right to extend it by adding a fifth – and closing the Gunning Gap!
TRIGGER POINTS
- Briefing Paper 14 on Transforming Care – the need to consult lawfully is now available to members, and to Institute supporters and others upon request. A short video introduction to the Briefing Note is available on our website
- Rhion Jones and Elizabeth Gammell have prepared a series of presentations entitled Thirty Years of the Gunning Principles for use in Conferences, training events and Briefings. If interested, please contact Jan Warner on 01767 318350 or hello@consultationinstitute.org
- The next public Law of Consultation training courses are in Birmingham on 7th October and London on 9th An in-house version on Practical implications is also available.
- Keep abreast of latest thinking on this and allied subjects at the Institute’s Annual Conference 14th October at the Emirates Stadium, London.
This is the 281st Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.