UK: A Review Of The Significance Of Consultation

Last Updated: 2 October 2013
Article by Stuart Thomson

This article was originally published in the Procurement and Outsourcing Journal.

Consultation continues to grow in importance. Whether it is government looking for feedback and input into policy, proposals for local development or changes to service provision, the role of the citizen now includes being consulted.

There is an increasing expectation by citizens that they will be consulted on a range of issues. Participation rates though often remain low. Alternatively, a consultation on a controversial national issue can become a game of numbers as supporters and opponents try to make more submissions and get more petitions than the other side – an attempt to turn consultation into a vote.

National consultations

The government has revised its own 'code of practice' on consultation and there is now a set of 'consultation principles'. These principles change many of the more onerous requirements. Instead of public consultations lasting a minimum of 12 weeks as a default, the government has introduced a more flexible approach such that consultations could last as little as two weeks. In some cases no consultation is required at all. The scope and timing of consultations largely come down to the government department leading it. They need to consider how complex the issue is as well as the capacity of those being consulted to respond, although the code does not set these out in any detail anywhere. In terms of feedback and ongoing engagement, the principles merely state:

"Departments should make clear at least in broad terms how they have taken previous feedback into consideration, and what future plans (if any) they may have for engagement."

While the new approach is much less prescriptive and reduces the burden on government departments, it is all quite vague. This makes stakeholder expectations unclear and it is increasingly difficult to judge how departments will, or even if, they will consult on an issue.

This year, as in other years, government has rushed out a number of policy announcements and consultations before the summer Parliamentary Recess starts. This leaves organisations with the summer to consider and respond to a number of consultations. There is no requirement on government departments to consider whether there is any cumulative impact on respondees so the time and resources involved can be enormous.

All this is doing little to bring any confidence about how the government consults stakeholders.

Local consultations

Whilst introducing a more flexible approach for their own engagement, government has made consultation at a local level, particularly for development projects, ever more strident and rigorous.

There are also requirements on service providers to consult users and communities on the scope and design of local provision, health services being the most obvious example. The local government and public involvement in Health Act 2007 and National Health Service Act 2006 fundamentally changed the requirements on the National Health Service to engage with the public.

The moves towards more consultation on development projects are not new. The Planning and Compulsory Purchase Act 2004 started to change the landscape with the introduction of the Statements of Community Involvement for local authorities as regards development plans. Developers have long understood that engagement with a local community can help in the planning process, and local planning authorities have seen it as best practice and we are witnessing a shift towards statutory pre-application consultation.

The Planning Act 2008 made pre- application consultation an obligation for major infrastructure projects and the Localism Act 2011 is extending it still further. The Localism Act 2011 includes a requirement for developers to consult with local communities before putting in a planning application for big schemes, although it is not yet in force. Furthermore the developers will have to show what changes they have made to the scheme as a result of the consultation. This marks a shift for developers and alters the way in which schemes are planned and, importantly, costed.


Legal challenges to consultation are increasingly commonplace. Each judgment can offer some valuable lessons for those undertaking consultations at a national or local level. The use of legal options are as much a part of effective campaigning nowadays as any other tactic and the mere spectre of legal actions can help in discussions and negotiations.

The challenges often centre on issues of process but can also go to the very heart of the consultation itself – what is being consulted on, what information is provided and what options/choices have those being consulted been given.

When the relevant provisions of the Localism Act 2011 come into force then there will be a real danger of challenge over failures in the pre-application consultation. Developers are going to need to be able to demonstrate that, at every stage, they have engaged properly with the local community.

To date, however, consultation is often considered to be lacking in quality and scope. ComRes, the leading market research and polling consultancy, conducted a poll on Councillors' attitudes towards local planning consultations and found that 73% thought that the silent majority is often overlooked in favour of the more vocal minority. Similarly, 78% believed that public consultations only capture the opinions of the most vocal people and 62% believed that local planning consultations lacked robust evidence of public opinion. Fortunately, 73% disagreed with the proposition that councillors found it difficult to know with confidence the views of their constituents regarding new developments. 56% of councillors are also more likely to be swayed by the opinion of constituents than local or national planning policy.

The localisation of decisions on development has most recently been highlighted with the issuing of new guidance, in June 2013, for onshore wind farm consultation which puts pre-application consultation at the heart of applications. According to the Secretary of State for Communities and Local Government, Eric Pickles MP:

"We want to give local communities a greater say on planning."

Supporters of this approach also believe that the same should apply to applications for shale gas developments. The government wants to show that planning is locally-led and, importantly, 'the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities'.


For those looking to undertake a local consultation, as well as a myriad of advice and guidance being available, the government as part of the changes for onshore wind farms, has promised best practice guidance from DECC (the Department of Energy and Climate Change) and a register to monitor best practice.

There is also guidance on pre-application consultation under the Planning Act 2008 available as well the various judgments from legal challenges. There are some significant lessons from the Planning Act 2008, not least that often several rounds of consultation are required to help the community make a meaningful contribution and that this, in turn, needs to be factored into the project timetable. The issues of the options being consulted on and the level of information provided about all the options (potentially even the ones not being consulted on) continue to be at the heart of complaints about consultation.

Considering all this leads to some recommendations on how local consultation should be approached.

  • Stakeholders – take time to consider the range of people and groups to be consulted, for instance the geographical area covered and do not be afraid to work with others in establishing this from the outset.Timings – a critical factor is allowing sufficient time for communities to input and demonstrate that this feedback has been considered and acted up.
  • Feedback mechanisms – particularly with the Localism Act 2011, developers need to show how community feedback has been used to change the proposals on offer. As part of a proper consultation process there has to be adequate feedback mechanisms to the community as well. This is especially important if there is more than one round of consultation.
  • Outreach – only if the consultation is able to reach all parts of the community will the feedback be encompassing. Genuine efforts need to be made to reach all parts of the community.

For anyone involved in a consultation, there is a need to keep excellent records, and to track all comments and feedback, ideally in a specialist database/CRM system. As consultation becomes a 'process' there is a need to be able to prove that at every step sufficient efforts were made. It is not enough to say what was done, a developer or government, needs to have the paper trail in place to be able to prove it.

Considering it the other way around, consultation is of a poor quality if:

  • a lack of options are provided;
  • there is considered to be pre-determination of the outcome;
  • there is a lack of information and/or it is badly conveyed;
  • no feedback is provided;there are a lack of ways to get involved; or
  • it is a one-off process.

It is important not to consider consultation as 'box-ticking' exercise or more 'red tape'. Instead, consultation can bring huge benefits to a scheme or in the development of a new policy. Better considered schemes can show up weaknesses and potentially save money.


In all the proposed and ongoing reform of consultation there remains an unresolved issue of expectations. Local communities in particular feel detached from planning decisions and it remains to be seen if the moves regarding onshore wind farms will help. However, once the idea takes root then it will become accepted and expected best practice across industries and sectors.

In the same way that the pre-application consultation measures of the Planning Act 2008 are becoming more widespread through the Localism Act 2011, and in turn for onshore windfarms, then developers should expect them to extend still further.

However, if a lack of belief in consultation remains then that affects the numbers of people that get involved and are prepared to spend the time and effort required. This, in turn, impacts on the quality of the decision or its level of public acceptability. For developers, the quality of the consultation may not reflect itself in levels of participation which could be levelled against them.

For government, there is undoubtedly difficulty. The more that it expands and specifies consultation at a local level, the poorer quality its own efforts to consult will appear.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Stuart Thomson
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions