One year on: Consultation under lockdown
One year ago this week, (23rd March) the UK went into lockdown for the first time due to coronavirus. We still remember our last full team meeting in the office that afternoon, all coming together with some sense of slight incredulity and ripples of that nervous laughter that always comes when stepping into the unknown. Since then we have been largely working entirely from home, our team meetings moving from impromptu gatherings to regular Tuesday morning zoom chats in order to make sure we all stay in touch and the team still works like a well-oiled machine.
But whilst there have been practical changes to the way we have been working, there have also been significant changes to the subject matter of our work. Consultation and engagement is fundamentally about bringing people together, and for many this has always been traditionally done in meetings and other groups, where people physically come together and debate and consider proposals. With lockdown curtailing this, we thought it might be interesting to take a quick look back at what changes we’ve seen in the last year.
When lockdown started there was an initial sense of confusion- how could we consult effectively if we were all being effectively confined to our homes? In the early days, we focussed largely on maintaining a form of ‘tick-over’. People wanted to know what they should do with their ongoing consultations, whether they should postpone new consultations, and what preparations should be made for if things became worse.
Bringing together our expertise from our associates, we determined that legal consultation requirements still fundamentally applied and consultors should make best efforts to continue consultations in line with basic principles. This position was later given some degree of approval through court decisions later in the year, most notably Article 39 in the Court of Appeal which confirmed that consultors were still required to fulfil their consultation obligations properly, even if they were undertaking a justifiably short consultation.
Another key thing we saw were significant steps to expand online and digital engagement by consultors. Although many already had access and started to use digital methodologies, coronavirus has significantly accelerated the process of adoption and usage. As time went by and people became more confident, the problems and reticence were being ironed out, and we saw more and better use of these methods to supplement the more traditional methods that had been rendered more difficult during the pandemic.
Innovation was very much the watchword of this early phase, and creative approaches would continue throughout the period. We were consistently impressed by the ways of working being adopted by colleagues across all sectors, and the collaborative attitudes being shown. Our Wednesday Wisdom webinars became a little hotbed of sharing, not only between the associates who were giving the sessions, but also between colleagues attending them.
This innovative approach has also led to other wonderful benefits. We’ve had multiple reports of consultors being able to use the many local support groups that sprang up at the beginning of lockdown (often on social media) to reach out to seldom heard people. People who would never usually have become involved in consultation have ended up participating- the challenge for consultors now is to maintain these relationships and ensure that they stay involved.
We also saw further development of ‘rapid’ consultations. We’d suggested the use of a form of ‘rapid’ consultation in Briefing Paper 38: Exit from Lockdown- the case for consultation, when the Government first started talking about lifting the first lockdown and trying to return to some degree of normality, even providing a model for such a type of engagement. Many consultors, acknowledging the continuing need to consult, but conscious of the rapidly changing scenario contracted their consultation periods. The Article 39 case mentioned above generally approved this, in the current context, and as long as the fundamental principles of consultation law are respected.
We have so far in this piece taken a positive view of many of the changes made due to lockdown, but it would be wrong to say that it has been a universal good for consultation. There are undoubtedly some policy decisions that have been made without consultation that would significantly have benefitted from it, either to improve the policy or merely from a public relations and comms viewpoint.
Although some of these occasions have undoubtedly been because of circumstance, there are certainly some where lack of time was not a problem and therefore some form of engagement should have taken place. In an emergency of any time, the need for policies to be effective becomes even more important, and as time has gone on, we have seen improvement in willingness to consult on policies- albeit on fairly granular aspects rather than the overarching strategy.
Speaking on the higher levels, we’ve also seen concerns about what happens after coronavirus. The imposition of street alterations and low-traffic neighbourhoods was made much easier, on a temporary basis, under various emergency coronavirus regulations. Many campaigners are concerned that there might be attempts to carry these over without consultation after the end of the present emergency.
We’ve been somewhat dubious as to the prospects of this happening, but these concerns may not entirely be without foundation, if not at the local level then at the national one. One of the significant ‘temporary’ changes made by regulations (without consultation) was to certain categories of permitted development rights- we even saw a court case about it (Rights:Community:Action). Recent media reports have suggested that the Government intends to carry these changes and make them permanent after the pandemic.
The key question will be whether any consultors try and maintain the standards of consultation that have been adapted to the emergency once it is substantively over. In each of the court cases we’ve seen during the pandemic related to coronavirus measures judges have made it fairly clear that they consider the new processes a compromise necessary only because of the circumstances. From a best practice perspective we would agree. A necessary change made during an emergency should absolutely not be carried over into regular practice, unless it manifestly improves and compliments that regular practice.
We would hope (and indeed are confident) that our regular correspondents, partners and colleagues would not make this mistake. We are all familiar with the principle that whilst continuing a truncated consultation process might be superficially appealing as a way of hastening decision-making, the negative effects far outweigh any benefits. Whilst we may be aware of that, we might possibly be advised to steel ourselves to make that argument to decision-makers themselves- the councillors, the directors, the bosses- who have been enjoying the opportunity to make big decisions quicker and in a manner that might make opposition more easily ignorable.
We, like everyone else, sincerely hope that we are coming to the end of the lockdown phase of the pandemic. Though the trials have been tough, and the road long, we feel we’ve made the best of the bad situation, often led by the inspiring responses from our friends and colleagues across our industry. We will shortly be hosting an online version of our regular tCI Connect conference, and we very much hope you will join us there to reconnect.