Originally published 13 November 2013. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
It has long been asserted that a public consultation is fault-intolerant. By this we mean that one can be successful at almost everything required but fail on one relatively small aspect yet bring the entire consultation crashing down. Or so it seems.
Many a consultor has felt this way when brought to the Courts. However in practice, recent judicial reviews have tended to focus not on the details of dialogue methods but more about the intent and integrity of consultations. In the words of Mr Justice Turner in last month’s case of R (ex parte Gate …) v Secretary of State for Transport & Lancashire CC,
“..a decision following a consultation process is not unlawful simply because it is possible in hindsight to conceive of a process that would have been an improvement on that which was actually carried out.”
Where public bodies have been vulnerable has been on such aspects as the ‘due regard’ provisions’ of the Equalities Act 2010, and the difficulty of demonstrating this convincingly if an Analysis has not been subject to effective engagement with relevant communities. Alternatively organisations have on occasions had trouble defending claims of pre-determination. Too often decision-makers have left themselves open to allegations that they have already made up their minds; emails can be powerful evidence!
No matter how one prepares for judicial proceedings, it comes as something of a surprise when practitioners realise the kind of things that most interest the lawyers. Claimants rush to law to complain about questionnaires that seemed biased, meetings that didn’t run smoothly, documents that weren’t available on time or facts and figures that don’t sound quite right. But these deficiencies, on their own, though sometimes important, do not, of themselves invalidate a consultation exercise.
The process is a means to an end – not an end in itself, and the modern way to look at a genuine engagement exercise is to look beyond the dialogue mechanisms and try to understand the function to be performed by the engagement in the first place. Increasingly the test of best practice is not to examine the minutiae of project management, but instead to look at the wider picture. Questions that matter include whether the consultation has been initiated by people who genuinely want to listen to stakeholder views? Or whether they are just going through the motions because a legislative requirement obliges them to do so?
When the Institute seeks to provide a quality assurance for high-profile consultations, it does so with the main aim of improving citizen confidence in the process – much needed as many organisations have steadily lost the public’s trust in recent years. But in what we call compliance assessment, we have to strike a balance between the micro and the macro picture.
Getting the details right can clearly matter. It affects stakeholders’ confidence that the consultor body is serious about listening. A slap-dash, don’t care attitude hardly bodes well for a thorough listening exercise and everyone wants due courtesy and consideration when asked for their views. People also expect comments and complaints about consultation processes to be dealt with professionally; if they have difficulties expressing their views, they will insist that consultors will make reasonable provision to accommodate them. So we schedule meetings at favourable times for those affected, we ensure we have translations or easy-read documentation; we provide all the information deemed necessary and we offer a range of communications channels so that no-one feels unable to contribute. In short, we get the mechanics right.
Yet one can get these very nearly if not entirely correct, and still have a consultation that somehow does not carry conviction. The broader scenario does not feel right; it may be rushed, or just smacks of tokenism in the way it has been put together. Recent judicial focus on options development (See the related Royal Brompton and Leeds Infirmary cases) are pushing organisations towards taking more care in deciding what choices to place before the public, so some of the tactically-manufactured options are fortunately disappearing. But too many still come across as We know best, so please will you say yes to this plan!
What keeps the ‘sum of the parts’ together in a cohesive ‘whole’ is that indefinable ingredient we can call TRUST. It is hard to establish and easy to lose, so public bodies in the current climate have to work hard to build and retain it. PR disasters as recently suffered by the Police in their handling of the Hillsborough cover-up or the PlebGate row undermines credibility when they ask for our views on future decisions they must take. And consider how damaged the NHS has been by the Mid-Staffordshire debacle and successive damning reports from the Care Quality Commission. A succession of postponed reorganisation-related consultations, illustrates how hard the NHS is finding it to build clinical and professional consensus before venturing forth with believable proposals
Assessing or measuring this indefinable ‘glue’ is a challenge, and resolves itself into the way we interpret the Consultation Charter, with its first and critical Principle – what we call INTEGRITY. As we build upon our experience of so many different situations, we are coming to see that the mechanics of consultation certainly make a difference … but that the wider willingness to listen matters even more.
TRIGGER POINTS
- How do you evaluate consultations in your organisation? Do you monitor consultee trust or just the operation of dialogue-methods?
- Relevant judicial Reviews such as cases quoted above are all covered in depth at the Institute’s Law of Consultation course; 6th November, Birmingham; 11th December, Bristol; 15 January 2014, Institute HQ, Bedfordshire
- For more information about tCI Quality-assured consultations, and the compliance assessment methodology, call Jan Warner on 01767 318350
- If you enjoyed this Topic, you may also enjoy:-
- – Topic 240: Birth of a Consultation Option
- – Topic 200: Credible consultations
- – Topic 114: Reputation management
This is the 248th 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