Originally published 26 June 2012. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
Public consultations are beginning to play a rather different role in some organisations.
Traditionally, they have been used to inform policy-makers who need to take account of a range of opinions before arriving at their conclusions. Equally they have helped public bodies handle important debates where difficult decisions have to be taken. We know they are not the same as opinion polls or market research, and need to be geared up specifically to help decision-makers.
So far, so good! Many consultations clearly fall within these well-understood scenarios. Look beyond these, however, and there are some changes that cause concern.
Many of these stem from the difficulties faced by public agencies of all kinds as they struggle to reduce expenditure and adapt to the age of austerity. Change is all around and many consultations seek just to tick the box or fulfil a statutory requirement. There has always been an element of this – but it may well now be more evident, as Managers struggle to implement unpopular changes to their services.
These immediately risk breaching one of the cardinal rules of consultation law. The so-called Gunning principles are universally accepted as valid foundation-stones for what makes a public consultation lawful. The first principle states that proposals must be in their formative stages – a formula which, at the Institute, we interpret as requiring decision-makers to have an open mind about what may or may not be an appropriate outcome for their deliberations. Unfortunately, by the time that consultations are organised by some bodies, the proposals are anything but!
Doubters may like to consider the growing popularity of using questions such as "Do you agree with the Government’s view that .....”. Not only does such drafting amount to a ‘leading question’ - the kind of which would raise an objection in a Courtroom, but it clearly implies that the consultor already knows the ‘right answer’ and is seeking support for that decision. This may of course be untrue, but the flavour of the dialogue is set by the questions that are asked and a string of such questions inevitably suggests that the Managers already know what should be done.
Previous Court cases have confirmed that no-one has a right to insist on a status quo option, but neither can the public expect always to be given a range of choices. Ideally, this should prove possible, and is the clearest indication that stakeholder views are seriously sought. But adding makeweight options just to give the appearance of greater choice is itself dishonest, and is to be discouraged. It is difficult, but Managers who wish to meet this Gunning principle must try hard to avoid there being ‘only one answer’. If it is Hobson’s choice, the public will conclude that its time is being wasted!
Securing and maintaining public support for some decisions is, of course immensely difficult and may require a range of actions lying beyond and beside the consultation itself. In some services, possibly the NHS, overdue rationalisation of infrastructure has been postponed for years so there is both a backlog of changes to be addressed and a latent fear that politicians may lack the political will to see the changes through. No wonder Managers will resort to whatever tactics look likely to win the hearts and minds of local communities.
Consultations, however, must be used carefully. There must be meaningful scope to influence, and the key decisions must not have already been taken. This is not impossible to achieve but may require some serious thought about the scope of the exercise – and the drafting of the questions. The next time you look at a consultation, examine the questions carefully. See if you can work out if this is an organisation that feels it knows the answer, and is seeking to ascertain what support it has. Or is it one that is transparently sharing the problem with its stakeholders and seeking views on potential solutions?
We need to help Managers imaginatively approach these challenges in ways that enable an effective and meaningful dialogue with interested parties. There may be a debate about the precise definition of ‘formative stage’ but, in layman’s language, it has to be early enough to consider a range of outcomes.
Better decisions should result ....and there should be fewer discontented consultees.
Trigger Points
- How are consultations used in your organisations? Are you ever accused of promoting a ‘done deal’?
- Are consultations mounted early enough in the policy or decision-making cycle?
- Are you careful to avoid “Do you agree with us?“ style questions?
- Our Law of Consultation training courses are proving valuable and popular, and are relevant to consultation teams, policy-making staff, chief officers and elected members.
- For a shorter but still valuable review of some recent legal cases, we run a Seminar on Legal Challenges to Consultations.
This is the 215th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement