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 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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.