When the current Covid-19 crisis hit, many public bodies will have been engaged in, or about to start, consultation
exercises; but now they might be considering conducting them in a way that is
different from their usual approach, or abandoning them altogether. For
example, it seems that for the foreseeable future it will not be possible to
hold public consultation meetings, or even stakeholder meetings (unless they
are conducted virtually). Before taking any such steps, however, public bodies
will need to give some thought to the legal implications of doing so.
The starting point should usually be any statutory provisions that govern the consultation exercise. Where there is a
statutory duty to consult, the legislation might prescribe who is to be
consulted or how the consultation is to be carried out, and public bodies may
have to give careful thought as to how they comply with any such duties in the
present situation. There is nothing in the provisions of the Coronavirus Bill
that directly affects those duties.
If the consultation is non-statutory, or the manner in which the consultation is to be carried out is not prescribed by
legislation, then the overarching consideration is likely to be whether what is
being considered would constitute a fair consultation. In this context, it is
important to bear in mind that fairness is a flexible concept and its
requirements vary according to the circumstances. It seems likely that the
exigencies of a public health emergency would be one of the circumstances that would
affect what fairness requires.
For example, in a situation where social distancing is being strongly encouraged, it is likely to fair to conduct a
consultation exercise entirely on-line or by post, without having drop-in
centres or face-to-face meetings. Of course, in such a situation, public bodies
will have to think about how to ensure that the exercise is still accessible to
consultees.
Before abandoning a consultation entirely, or deciding not to consult a particular group at all, the starting point should
again be any statutory provisions governing the consultation exercise. However,
even if there is no statutory duty to consult, public bodies need to think
about whether a past practice or a promise of consultation might have given
rise to a legitimate expectation of consultation, and whether the circumstances
justify resiling from that expectation. For example, the need to conduct a
consultation exercise at speed might, depending on the circumstances, justify a
body departing from its usual practice of consulting the general public and
instead consulting only key stakeholders
Of course, as well as the legal implications, public bodies will want to think about how best to elicit the
views of consultees, and thereby ensure that their decision-making is as
well-informed as possible. This is a key purpose of consulting, and its
importance cannot be underestimated, particularly in present circumstances.
