How to know you have done enough to meet public sector duties in a consultation

Public bodies often ask the wrong question. They ask whether they consulted enough. The law asks whether they used good judgement at the right time, and can prove it. Courts do not count activities. They look at decisions.

The legal tests you are judged against

Three areas of law matter in most consultations:

• The Gunning principles on fairness
• The Public Sector Equality Duty under section 149 of the Equality Act 2010
• Administrative law principles on rational decisions and evidence

None of these require perfection. All of them require evidence.

Test 1: Were options genuinely open when consultation began?

Consultation must happen whilst proposals are still formative. This is not just about words. Courts look hard at whether the outcome was already decided. In R (Brown) v Secretary of State for Work and Pensions [2008], the court made clear that duties must be met before and during decision-making, not after. That principle now applies to both consultation and equality duties.

If you have already made up your mind, the consultation will not fix the decision. Large numbers of responses do not make up for bad timing. Ask yourself honestly: could the responses have changed the outcome, or only how you explained it? If it is the latter, you have a problem.

Test 2: Was the information good enough for people to respond properly?

Consultation materials must let people respond in a meaningful way. That means explaining what you actually propose, setting out realistic alternatives, and being honest about trade-offs, constraints and impacts. Holding back difficult information because it might be controversial is not neutral. It is legally risky.

In R (Hurley and Moore) v Secretary of State for Business [2012], the court warned against form over substance. Even where assessments existed, the question was whether people and decision-makers actually understood the impacts. If people could not reasonably understand what was at stake, you have not met the duty, no matter how good the documents look.

Test 3: Did you properly consider equality under the Public Sector Equality Duty?

The Equality Act does not require a particular format. It requires a particular approach. In R (Bracking) v Secretary of State for Work and Pensions [2013], the Court of Appeal was clear:

• Decision-makers themselves must properly consider equality
• Equality analysis must be available when the decision is made
• General awareness of equality issues is not enough

This is where many organisations quietly fail. Equality Impact Assessments are often prepared late, done by junior staff, or treated as box-ticking rather than evidence. That approach does not survive legal challenge. You need to show you identified which protected groups might be affected, you considered how impacts differed, and that this changed the decision or led to mitigation. If the equality analysis was not in front of the decision-maker, it might as well not exist.

Test 4: Can you show you properly considered consultation responses?

You do not have to agree with those who respond. You do have to take them seriously. In R (Bailey) v Brent LBC [2011], the Court of Appeal confirmed that consultation can help meet the equality duty, but it does not replace it. Responses must be weighed, not just recorded.

What matters is the audit trail: how were responses looked at? What themes mattered? Where were views accepted, changed or rejected, and why? If your decision report could have been written before the consultation closed, that is a problem. Courts look for evidence that consultation made a difference to your thinking, even where the final decision stayed the same.

What “enough” looks like when challenged

You have done enough when you can produce, without having to reconstruct:

• A clear reason for why consultation was needed or proportionate
• Evidence that consultation happened whilst options were live
• Equality analysis considered by the actual decision-maker
• A decision record showing how consultation evidence was weighed

In Brown, the court stressed how important record keeping is. In Bracking, the absence of evidence at the point of decision was fatal. Good intentions do not fill gaps in evidence.

The mistake organisations keep making

They treat consultation and equality as tasks to complete. The law treats them as tests of good governance. If your process is designed to show openness rather than good judgement, it is fragile. The safest consultations are not the largest. They are the ones where the organisation can calmly explain, step by step, how evidence shaped the decision.

---

---

How tCI Can Help

Quality Assurance
Independent review at critical stages, from evidence protocol design through to final reporting. Our seven stage QA process ensures your approach to qualitative data meets legal and good practice standards, assessing analysis methods, interpretation fairness, and compliance with Gunning principles, PSED and ICO requirements. Gives you confidence your evidence will stand up to scrutiny.

Early Assurance
Snapshot review during planning to sense check your evidence framework, codebook design and proportionality rationale before fieldwork begins. Helps you avoid costly missteps and strengthens your approach from the start.

Charter Workshops
Practical, interactive half day session introducing teams to good consultation principles. Grounded in the Consultation Charter and Gunning Principles, participants learn through expert input, case studies and group discussion. Build consistent approaches to engagement that are fair, transparent and defensible. Delivered online or in person, tailored to your sector.

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