The ‘minded to’ position: consulting without a closed mind

A public body that names a preferred option before consulting on it can look, to a sceptical observer, as though the decision has already been made. Consultation law takes a more practical view. This article sets out when a stated preference is lawful, and what separates an open mind from one that has already closed.

What does a “minded to” position actually mean?

A “minded to” position is a public statement that a body currently favours a particular option, before it makes a final decision. It signals direction without finality. The body has formed a provisional preference based on the information available, but has not yet closed off the possibility of a different outcome.

This phrasing appears constantly in committee reports, NHS service change proposals, and planning recommendations. A body may be “minded to” close a facility subject to consultation, or may state that it currently favours one model of service delivery over another ahead of formal engagement. Used properly, this is not a procedural weakness. It is what a transparent organisation looks like.

The discomfort some practitioners feel with this phrasing usually traces back to the Gunning principles, the established legal test for fair public consultation in the UK. The fourth principle requires conscientious consideration of responses before a final decision, which can seem hard to square with a body that has already said which way it is leaning. The two are not in conflict.

Why does consultation law allow a body to prefer an option?

The clearest answer comes from the Supreme Court in R (Moseley) v Haringey LBC [2014] UKSC 56. The Court accepted that a consulting authority may identify and consult on its preferred proposal. Consultation would often be meaningless if it could not. The question the Court actually asked was different: were consultees given a genuine opportunity to influence the final outcome?

In Moseley, the council’s consultation document presented a reduction in council tax support as an inevitable consequence of government cuts, with no real discussion of alternatives that had been considered and rejected. The Court found this unfair. The problem was not the preferred option itself, but the impression that the outcome was already settled and that responses could not change it.

The distinction the Court drew is the one that matters for every “minded to” announcement that follows. A preferred option is lawful. An option presented as a foregone conclusion is not, regardless of how carefully the surrounding language is chosen.

What keeps a stated preference from tipping into a closed mind?

A useful way to think about this is the difference between a provisional preference and predetermination, the point at which a decision-maker has effectively closed their mind to any outcome other than the one already chosen. The law is comfortable with the first. It is not comfortable with the second, and several practical factors tend to separate them.

Language matters, but it is not decisive on its own. Phrases such as “minded to”, “currently favours” or “subject to consultation” signal that a final decision has not been taken. However, a body that uses careful language while behaving as though the matter is closed will not be protected by the wording alone. Courts look at substance, not just phrasing.

Genuine opportunity to influence the outcome matters more. Consultation documents that set out the preferred option alongside realistic alternatives, and explain why those alternatives were not preferred, do far more to demonstrate an open mind than any disclaimer. This was the central lesson of Moseley.

Evidence of actual reconsideration also carries weight. Decision reports that show how consultation responses were analysed, where they led to changes, and where they did not, and why, are strong evidence that the consultation was capable of affecting the result. A report that simply restates the original preferred option, unchanged, with no engagement with what consultees said, invites the opposite conclusion.

For elected members, section 25 of the Localism Act 2011 provides further reassurance. It confirms that a decision-maker is not treated as having a closed mind simply because they previously indicated a view on the matter. Guidance from the Local Government Association applies this to councillors who have campaigned on an issue. A stated predisposition is not the same as a predetermined outcome.

What should a “minded to” announcement include?

The practical answer for anyone drafting a “minded to” statement, or the consultation document that follows it, is straightforward. Name the preferred option and explain why it is preferred. Set out the realistic alternatives considered and why they were rejected. State clearly that no final decision has been made and that responses may change it. The eventual decision report should show that this held true.

Getting this right at the drafting stage is far cheaper than defending it after the event. A consultation document or decision report that reads, on a fair view, as though the outcome was never really in question is the single most common evidential gap in challenges of this kind, whatever language was used to describe the body’s starting position.

A public body does not need to pretend it has no view in order to consult fairly. What matters is whether that view remains open to challenge. A “minded to” position that names its alternatives, explains its reasoning, and shows genuine engagement with what consultees say has nothing to fear from the label.

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