A little while ago, we were playing around with ChatGPT and prompted it to explain the Gunning Principles, the legal requirements for public consultation, in the style of superstar drag queen, RuPaul Charles. The result amused us and we posted that on socials as a bit of Friday fun.
Fast forward a couple of months and a stakeholder responds to one of the public consultations we run for NHS clients, quoting that post to explain the Gunning Principles to our client.
We talk about the Gunning Principles all the time. They guide our actions and are a key consideration in the advice we give our clients. Looking at why the stakeholder chose to quote our ChatGPT post rather than something more formal, we noticed we haven’t published anything about the Gunning Principles. That’s an obvious omission now we think about it.
Sometimes the most obvious omissions go unnoticed until a stakeholder points them out. That’s part of the reason for running a public consultation on proposals for changes to health and care services. It’s one of the things we discuss at length with our clients when we’re helping them prepare for a public consultation.
And where stakeholders have a valid point about errors or omissions, it’s right to address those. We’re big on living our values and modelling the behaviours expected of our clients, so this post aims to fill the gap.
In 2014[1], justices at the UK Supreme Court restated that public bodies’ common law duty of procedural fairness applies to public consultation. They confirmed the criteria for procedural fairness in public consultation that were first established in 1985[2], now commonly known as the Gunning Principles. One of the Justices commented that it is hard to see how any of these four requirements could be rejected or indeed improved. The requirements are:
- Consultation must be at a time when proposals are still at a formative stage.
- The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response.
- Adequate time must be given for consideration and response
- The product of consultation must be conscientiously taken into account in finalising any statutory proposals.
In the four decades since that first case, scores of public consultations have been measured against these requirements by the courts and we’ve learned so much more about each of the principles.
Proposals are essentially at a formative stage if the consultor hasn’t made a final decision on the whole of the issue. Consulting organisations don’t have to include proposals they think are unviable and they can choose the range of proposals they present in a consultation, as long as stakeholders can see how they got there, understand the discarded ideas, and have a chance to influence the decision, including offering alternative solutions.
The requirements for intelligent consideration and response are more complex. The consulting organisation must provide enough information for stakeholders to understand and respond to their proposals. What one stakeholder needs to give proposals intelligent consideration can vary from what another stakeholder needs. If NHS consultors follow their regulator’s requirements and process for producing a draft business case, like those set out in NHS England’s service change guidance, publish that document and its background information, and carefully monitor requests for other relevant information, they will be a long way, if not all the way to meeting that requirement. The guide we use is that if it is part of the evidence base that informs any part of the process or the decision they’re taking, consulting organisations should publish it for stakeholders to review and add to. Think back to that first purpose of consultation set out by the Supreme Court Justices.
How much time is adequate time for stakeholders to consider and respond to their proposals depends on the issue, resources available, the view of regulators and scrutineers, and local policy. Stakeholders will have a view. Mostly public consultations on NHS service change proposals last between six and twelve weeks. Shorter and longer consultations might be appropriate in specific circumstances. The consulting organisation can extend the consultation, if it believes that is necessary to ensure the consultation process is fair.
Finally, the principle known as conscientious consideration, the decision-makers must actively take into account the feedback and learning gathered in the consultation when they make their decisions. That should be done openly with materials published and decision-making done in public.
Together, these principles are at the forefront of consulting organisations’ minds from the earliest stages of planning for a public consultation right through to decision-making meetings. We’re sure to learn more about them in years to come.
[1] Lord Justice Wilson in Mosely v London Borough of Haringey [2014] UKSC 56
[2] R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168
Blog by: Paul Parsons
