The law with regard to engagement and consultation
Whilst there is no legal duty to engage with communities (therefore no legal risk) it is a positive thing to do. It builds relationships and leads to better policies, strategies and services. It also offers greater freedom and flexibility for the service and those who are engaged than consultation.
Consultation can also be seen as good practice because of the difficulty in identifying definitively whether a legal obligation exists. This is because the law of consultation is based on the principles of fairness and legitimate expectation. Therefore, the question of legal obligation will often be a risk assessed judgment that may best be managed by carrying out a consultation.
There is no general duty on local authorities to consult when considering changes to services or policies. Courts recognise a large degree of autonomy in public bodies as they are often seeking to balance a number of competing or conflicting interests. They also recognize the impact on decision-making if everything had to be the subject of consultation. The courts have identified a number of circumstances where consultation will be required. However, they are ever-developing and are a matter of judgment in every case. These circumstances fall into two categories:
- where there is a statutory duty to consult
- where the courts will imply a duty to consult from the council's general obligation to act fairly
Where a consultation is carried out it must be done properly, in accordance with the principles laid down by the courts. The potential for challenge means that we are keen to:
- accurately describe our proposals
- establish written audit trails of the information we have provided and the responses received
- demonstrate that we have given proper consideration to public and stakeholder views when reaching a decision
The law allows consultation to take place on a preferred option as long as any other options that have been considered are included with clear reasons for their rejection.
Where there is uncertainty about the legal obligation to consult, the ET will advise whether further guidance should be sought from LCC Legal Services.
The GDPR was introduced in 2018. All consultation and engagement must comply with the law regarding, for example:
- consent
- processing and storage of data
For more information, contact the Information assurance team by email: IA@lincolnshire.gov.uk