A consultation may be unlawful if it presents only the preferred option and withholds the realistic alternatives a consultee would need to respond intelligently.
The four Gunning Principles
First articulated in R v Brent LBC, ex p Gunning (1985) and endorsed by the Court of Appeal in Coughlan, the four principles were affirmed by the Supreme Court in Moseley as the standard against which the fairness of any consultation is judged.
Consultation at a formative stage
The proposal must still be genuinely open to influence, consultation cannot be a rubber-stamp on a settled decision.
Sufficient reasons for intelligent response
Enough information, and, where fairness requires, the realistic alternatives, must be given for consultees to consider the proposal properly.
Adequate time to respond
The consultation period must give people a genuine opportunity to consider the issues and formulate a response.
Conscientious consideration of responses
The product of the consultation must be conscientiously taken into account when the decision is finalised.
The facts and the finding
Haringey consulted on a new council tax reduction scheme after central government cut the funding that had supported council tax benefit. Its consultation put forward a single approach, passing the shortfall on to claimants, without explaining that the deficit could instead be met from other budgets or reserves.
The Supreme Court held the consultation unlawful. Because residents were not told that alternatives existed, they could not give the proposal the intelligent consideration the second Gunning principle requires. Fairness, the Court found, will sometimes require a consulting body to disclose realistic alternatives, even ones it has already rejected, so that responses are meaningful.
“Sometimes fairness will require that interested persons be consulted not only upon the preferred option but also upon arguable yet discarded alternative options.”
Lord Wilson · Moseley, [2014] UKSC 56
What this means when you design a consultation
Show the alternatives
Where a realistic alternative exists, explain it, and why it was not preferred. Presenting a single option invites challenge.
Consult before you decide
Evidence the formative stage: document that the decision was genuinely open when you consulted.
Give reasons people can engage with
Plain, sufficient background lets consultees respond to substance, not headlines.
Record how responses shaped the decision
The fourth principle is evidenced in your decision report, show conscientious consideration.
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