From Gunning to Moseley: What Case Law Tells Us About Option Development

The risks of premature engagement

What happens when an organisation moves to public engagement before fully developing its options? From the NHS to local councils to infrastructure projects, consultations can falter when the option development phase has been insufficient. Moving to public engagement without robust option development can lead to weaker outcomes, increased legal risk, and reduced stakeholder confidence. At its core, this risks failing the Gunning Principles, which require that proposals be at a formative stage with sufficient information for informed responses.

Why poor option development undermines consultations

Consultation law and best practice require proposals to be at a formative stage (meaning decision-makers haven’t made up their minds) and consultees must receive enough detail about options to give informed feedback. Skipping robust option development undermines both requirements. Organisations that consult on insufficiently developed or inadequately balanced options face three critical challenges:

• Consultation outcomes are less effective. Respondents find it difficult to give meaningful input when options lack sufficient detail or appear unbalanced. Feedback may focus more on perceived process issues than on the substantive merits of the proposal. In some cases, the exercise needs to be revisited because it didn’t adequately test different approaches.
• Legal risks multiply. Public bodies have been taken to court for flawed consultations, and judges readily quash decisions when consultations fail basic fairness tests. The UK Supreme Court ruled that a council acted unlawfully by failing to include alternative options in its consultation. More recently, a High Court judge overturned approval of a major infrastructure project because officials had failed to consider alternative schemes. Ignoring feasible alternatives or consulting after your mind is made up invites judicial review.
• Stakeholder confidence may be reduced. Consultees are sensitive to whether a consultation appears genuinely open. One MP observed after a health service consultation that unveiled a preferred option at the outset: “It does no good for public confidence in the process if it appears that a decision has been taken before the end of the consultation.” Perceptions of a predetermined outcome can affect trust in future engagement processes.

Three recurring failures

Across NHS changes, council budget consultations, and infrastructure plans, the same option development failures keep appearing:

False choices. A common ploy is to offer limited choices about how a change should happen without including the option that it shouldn’t happen at all. A council seeking to reorganise local governments asked the public which merger model they preferred but omitted the status quo option of keeping existing councils. A London borough consulted on a traffic scheme but structured questions so residents could only comment on implementation, not whether it should proceed. Stakeholders notice when a consultation box-ticks a decision already made.

Over-weighted “preferred” options. Having a preferred option isn’t inherently wrong, but promoting it at the expense of alternatives undermines the process. One NHS consultation event left locals convinced a decision had already been made because officials announced their preferred cut on day one. The other options were perceived as window dressing. A consultation is not a sales pitch; if it reads like one, you’re doing it wrong.

Ignoring viable alternatives. Failing to develop and consider the full range of plausible options is perhaps the gravest mistake. The UK Supreme Court’s Moseley decision underscored that if you’ve internally considered and rejected some alternatives, you may need to share those in the consultation so the public can weigh in. Planners of the Stonehenge tunnel faced a judicial review because they didn’t assess a known alternative design. The court deemed this an obviously material consideration that should have been evaluated alongside the chosen scheme.

Getting the sequence right

Why do these failures keep happening? Partly because well-intentioned advice to “engage early” has been misunderstood. Early engagement is valuable, but only if you use it to shape credible options, not as a substitute for doing so. Many organisations launch into public engagement unprepared: they lack internal consensus, haven’t done the analysis to create viable proposals, or don’t understand the legal bounds of what they can ask.

To turn this around, public bodies and project leaders need to reverse the order: invest in option development before major engagement. That means doing your internal due diligence so that when you go to the public, you’re offering genuine choices grounded in reality. It doesn’t mean deciding in smoke-filled rooms. It means preparing properly so that early engagement is constructive rather than aimless. The ideal is pre-consultation engagement to help develop options to formally consult upon.

When credible options come first, the public consultation that follows can be far more productive. You can truthfully say the proposals are formative because you’ve lined up several viable paths forward. You can present clear information about each option’s impacts, backed by evidence, allowing respondents to give informed opinions. This approach strengthens your position: consultation feedback is richer and more actionable, the risk of legal challenge drops, and stakeholders are more likely to feel the process was fair even if they dislike the outcome.

Credible options shape stronger consultations, not the other way round. Engagement isn’t a magic wand that will conjure up sound options if you haven’t done the hard thinking internally. Options are the spine of any meaningful consultation. By generating a realistic range of options and explaining the pros and cons of each, you set the stage for an engagement that can genuinely influence the decision.

Finally, organisations must foster a culture of readiness to listen. All the option development in the world won’t help if leaders aren’t actually open to changing course. Consultation is a two-way street: you’re asking people to consider your options, but you also have to consider their feedback. If you aren’t willing to alter or even abandon your preferred plan based on evidence and input, you’re not truly consulting.

Whether you’re closing a hospital ward, cutting a council budget, or routing a new highway, the pattern holds: do your option development diligently before you engage, then consult fairly on those options, and keep an open mind to what you hear. This sequence isn’t just bureaucracy. It’s what separates successful, defensible decisions from costly failures.

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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