Sins of Omission

If consultation was not undertaken – how to retrieve the situation.

When coronavirus sent Whitehall – and everywhere else – into a flat spin, Government responded with a flurry of administrative and legislative actions, and clearly took quick decisions which, at other times would have involved various amounts of consultation. Inevitably, some of these have been challenged in the Courts, and in recent days there have been two relevant cases. Both were won by the Secretary of State for Education.

In the first case, the children’s rights charity Article 39 argued that Regulations introduced during the pandemic to relax children’s safeguarding requirements through local authorities were unlawful because they had not been properly consulted upon. A total of 65 relaxations were made, many of which Article 39 claimed had potentially serious consequences for looked-after children. There HAD been consultation – albeit, informal and confidential. Selected local authorities, Ofsted and other internal stakeholders had been consulted. The Children’s Commissioner, had, however merely been ‘told’; all the well-known children’s rights bodies were wholly excluded from the dialogue. Was this sufficient? In the event Mrs Justice Lieven decided it was lawful, but merely because of the extreme circumstances. She went as far as to rule that “In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted.”

A week later, Mr Justice Kerr published his judgment in the case of Amber Shaw v Secretary of State for Education. It is similar, except that it concerns SEND, or Special Educational Needs and Disability, services for which have been the subject of several judicial reviews in the past eighteen months. As in the Article 39 case, civil servants had engaged informally with stakeholders of their choice prior to advising Ministers who then sought and obtained Parliamentary approval for regulations that reduced the requirements on Councils to perform their statutory SEND duties. Here the argument was a little different with the claimants relying on legitimate expectation as defined in the King Richard III case. Its fourth criterion was ”where, in exceptional cases, a failure to consult would lead to conspicuous unfairness”. The Court rejected this, and supported the Government’s view that the informal exercise of gathering information, research and dialogue was sufficient.

More challenges of this kind are expected – possibly on the A-level results fiasco, and they may well provide us with a more detailed corpus of law about when one can avoid otherwise customary consultation exercises. For public engagement professionals, however, the rights and wrongs of COVID-19 decisions may be less important than the practical question of how to retrieve the situation as we emerge from the lockdown period and its sense of bureaucratic panic. Are there useful lessons to learn from those days – irrespective of what Courts may say?

It is already a real question for the National Health Service. Many services changes were made to help fight the pandemic, and were not subject to consultation because the rules allowed Mangers to make such changes in the interest of safety provided consultation was undertaken at an appropriate time in the future. Institute Associates are already advising Trusts and CCGs as to whether the time is right, and how to proceed on what is a delicate matter.

It’s delicate, in part, because stakeholders may well feel that omitting to engage with them betrays the relationship they had ( …or would like to have had…) with decision-makers. The feeling of grievance at not having been consulted may not arise because the outcome may have been different. It may just be a signal that when the chips are down, the views of key stakeholders did not appear to matter. It is not just professional pique. If you are the Royal College of Surgeons, for example, you represent those clinicians, their status, their interests and their expertise. Failure to talk to them makes 25,000 men and women feel their sense of worth is being undermined. As always it’s not just what you say, it’s who you represent when saying it…

Rebuilding bruised relationships therefore must be a priority when trying to recover from situations where, in hindsight, consultation might have been well-advised.

Another is to make a special effort to consult on the consequences of those decisions. As we outlined in Briefing Paper 38: Exit from lockdown - the case for consultation, many of the decisions taken in a hurry this Spring will take a long time to unwind. Months certainly; maybe years. In both the Court cases, one can see that the concerns that motivate the claimants are less about the blame game and more about seeking assurances that withdrawn services or relaxed requirements are reinstated as soon as practicable. There are ample opportunities to engage properly with key stakeholders. What decision-makers now need to do – be they Ministers, civil servants or Council leaders – is to acknowledge that speed may have precluded consultation first-time around, but show a willingness to listen constructively as events unfold and the next decisions fall due.

Finally, have another look at the machinery for continuous engagement. If Government departments or other public bodies were caught short and struggled to engage at the right level with the right organisations (If I ring A, but don’t ring B, will it be trouble? Is it best maybe not to ring either?) the lesson is surely to build a better process. One that can be activated quickly and serviced by stakeholder-aware staff who know how to handle the underlying relationships. Old-style consultative committees and the traditional once-a-month/once-a-year Forums are no longer fit for purpose, and in the world where zoom-briefings and dialogues can be set up within 30 minutes, far more effective mechanisms are possible. Look at the array of digital functionality that is being assembled.

Reading the recent High Court judgments makes one wonder whether hard-pressed officials with deadlines from Ministers and pressures from peers have even heard of the wonders of the newer consultation platforms. Had they done so, they might have avoided costly judicial reviews. And they may learn that the pandemic’s consultation failures may yet be the key to developing best practice for the future. From the darkest clouds, it’s good to find the occasional silver lining!

TRIGGER POINTS

1. The first case is R (Article 39) v Secretary of State for Education [2020] EWHC 2184 (Admin). It is discussed in some depth here
2. The second case is R (Amber Shaw etc) v Secretary of State for Education [2020] EWHC 2216 (Admin)
3. Although these new cases are not in the Law of consultation online e-learning course, there almost 70 cases which ARE included. For anyone who needs to be well-informed about this important aspect, see the Taster video and discuss your requirements with Institute staff.
4. The Exit from Lockdown: the case for consultation paper can be accessed here
5. Has your organisation experience of having had to make changes during the pandemic, and may now need to re-commence your engagement? Consider the Institute's Consultation Re-start

This is the 362nd 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