We have a duty to consult with our residents and business under the Best Value and the Local Government Act 1999 as well as specific duties under laws relevant to the service area under consideration.
As a minimum a consultation process must:
- Be done at a time when proposals are still at a formative stage (i.e. there is still opportunity to influence)
- Give sufficient reasons for any proposal to permit intelligent response.
- Give adequate time for consideration and response.
- Be conscientiously taken into account in final decision-making.
Under the Equality Act 2010 there is a duty to advance equality by ‘encouraging participation in public life’ for all protected characteristic groups. There is also a duty to make reasonable adjustments for disabled people so that they can access the information.
The Best Value Duty applies to how “authorities should work with voluntary and community groups and small businesses when facing difficult funding decisions.” It states that authorities are to “consider overall value, including economic, environmental and social value, when reviewing service provision.” To reach this balance, prior to choosing how to achieve the Best Value Duty, authorities remain ‘under a duty to consult representatives of a wide range of local persons.’ This duty to consult is not optional. Section 3(2) of the Local Government Act 1999 provides details on those who should be engaged in such consultations.
There are many areas where there is an express duty to consult, e.g. in planning and licensing applications. Others include:
- Public Protection Orders - S72(3) Anti-Social Behaviour, Crime and Policing Act 2014 a council must consult specified individuals and also "whatever community representatives the local authority thinks it appropriate to consult"
- Designating areas as a selective licensing scheme – S80(9) Housing Act 2004 where there is a requirement to "take reasonable steps to consult"
- Best Value - under S3(2) Local Government Act 1999, councils are required to consult a variety of persons (including for example council and business council tax payers and users of the services concerned) and in deciding who to consult, councils must have regard to statutory guidance issued by the Secretary of State.
Even if there isn’t an express duty to consult, as part of an overriding duty to act fairly in the exercise of their functions, councils should consider whether consultation is appropriate and therefore implied in a particular case. Consideration should be given to (i) whether there is a duty to consult anyone and (ii) the extent of that duty in the circumstances of the particular case.
In determining whether there is an implied duty, relevant factors to consider (and to be balanced against each other potentially) might include:
- What has happened historically?
- Has there been a promise of consultation?
- What is the nature and impact of the decision which might warrant consultation with those who will be affected?
- What’s the purpose underlying the relevant legislation to which the matter relates?
- Has the law changed which might indicate consultation is not appropriate?
- Is the decision one that needs to be made urgently or a matter of national security?
- Would the consultation be futile?
- Would consultation create an administrative burden?
- Would consultation adversely impact on the need for confidentiality?