Guidance on Guidance

How much attention should we give to consultation guidance?

In the ideal world, consultation happens when those about to take decisions or adopt policies recognise the value of listening to others’ views before proceeding. In the real world, consultation often arises because a body of superior authority has ruled that it is necessary.

Sometimes it is fully spelt out in primary legislation, though the different wording of statutes over the years have led to interesting interpretations in the Courts. This paper looks at those occasions where consultation – or the rules by which they are conducted – are prescribed in various types of Guidance.

There is a difference, and those whose roles are to organise consultations need to be very aware of the implications. Firstly, Guidance may well be issued by the parent organisations who will regard conformance as a management requirement. Your Chief Executive wins a few marks if he or she takes a cavalier approach to which Guidance to follow and which to ignore. Secondly, Guidance can remove uncertainty by laying down sector-specific rules as to how to run a consultation – who or how to engage, for how long, and with what terms or reference. Clear, consistent guidance may help; over-complex, confusing instructions do the opposite. Finally, Guidance influences expectations. Not just for consultors and consultees, but can be a factor in any judicial reviews where Courts are called upon to rule upon the legality of the exercise.

Failure to follow Guidance can be fatal. The doctrine of legitimate expectation has been used on countless occasions when consultees have claimed that consultations either never took place as required or failed in some way to observe the Guidance. Judges have found it difficult to provide certainty – especially as adherence to the Guidance has usually been only one of a number of grounds of challenge. There have been convoluted arguments as to why breaches of some parts of some Guidance have proved fatal, but not others. Many factors come into play; the underlying principles, the precision of the Guidance; the definition of the applicable circumstances, and often, the status of the Guidance. At tCI we have identified a range of different types of guidance and created a framework broadly as follows:

• Statutory Guidance Some legislation requires Government departments or other public bodies to publish guidance documents as an alternative to secondary legislation such as Regulations or Orders in Council. Whereas primary legislation is immutable, since 1998, it has been recognised that, in theory, there might be circumstances where Guidance might be held not to apply. This, however, is unusual. Normally the formula is for primary legislation to state that named organisations should either observe or have regard to Guidance as and when it is published. Examples abound in Town Planning or in Health. Unjustified disregard of such statutory guidance is likely to incur serious consequences.

• Ministerial Guidance differs insofar as there may not always be a legal requirement upon the Minister to issue such a document. Without clear legal sanctions, these tend to be less prescriptive and may confer more discretion in their interpretation or application. It has a role in helping to explain new initiatives or launch new schemes, with the 2020 Guidance on the £3.6 billion Towns Fund providing an excellent illustration. Consultation is ‘urged’ rather than ‘required’, for example.
• Departmental Guidance is more administrative rather than political but can still be important in setting out how various processes might work. Emergency Traffic Orders, introduced in the wake of the coronavirus pandemic, relied upon Regulations that were supported by Guidance, and it is often at this level of detail that communities can ascertain the extent to which they may expect engagement or consultation.
• Organisational Guidance is what a public body may publish to codify its ownpolicy or practice – both as a tool for securing consistency of application and as a way of communicating its intentions to stakeholders or the general public. Courts have declared Council decisions unlawful because staff failed to observe their own policies as expressed in their own Guidance. Examples include local Codes of Practice on Equalities and Councils’ observance of Planning Statements of Community Involvement.
• Professional Guidance can also be relevant. In Health, the Royal Colleges have traditionally had much influence upon the day to day modus operandi and best practice for various activities. Ditto in a range of spatial planning professions from architects to surveyors. Engineers, scientists, academics, broadcasters and a myriad of other professions are similarly covered by extensive Guidance. We might even include the Consultation Institute and its Consultation Charter – guidance to anyone running consultations.

Clearly, not all of these are equal. The best advice may not be the most enforceable. Some Guidance have benefitted from well-documented precedents, large amounts of commentary (‘guidance on guidance’) and considerable discussion of how they should be applied. This is the case in both the NHS and in Town Planning. But others are specialised and intensely detailed. For example, the Civil Aviation Authority’s process for changing airspace is a 218-page tome full of highly specific provisions which airports must observe when consulting local communities. Before COVID-19 halted them in their tracks, most were learning by doing – and in this case, many were relying upon the Institute for advice in how best to apply such onerous provisions. (We declare an interest).

There are many questions. Here are just a few:-

• Under what circumstances can consultation organisers take a loose view of what is published? Do they have to stick to the letter of the Guidance? Is it possible to cut corners?
• Or are there underlying principles that matter more?
• Will Judges rely upon the traditional rules of statutory interpretation?
• Or will they be guided more by adherence to the Gunning Principles?
• What role can Guidance play in training and educating public bodies, their staff – and their stakeholders?
• What happens if organisations are subject to conflicting Guidance?
• …or publications regarded by key people as outdated or unrealistic?

The practice of consultation relies considerably on Guidance, and the interpretation is still more of an art than a science. There are so many variables that practitioners have to be cautious about any generalisations. There is no substitute for intense study. The Institute encourages everyone to make sure they know what Guidance applies to them and to make every effort to conform to them.

TRIGGER POINTS

• Are you absolutely sure you understand what Guidance affect your conduct of public consultation?
• Are your Managers equally aware?
• Can the Institute be helpful in promoting awareness of the relevant Guidance?
• Have you understood the dotrine of legitimate expectation … and how it relates to consultation and any Guidance relating to it? The Institute's Law of Consultation e-learning course has a whole module on this aspect.
• Would you find it useful to discuss the issues affecting Consultation Guidance in our forthcoming Wednesday Wisdom? On 21st April, Institute Associate, Brian Parry, discusses the challenges of working with sector guidance:

Wednesday Wisdom | Wednesday 21st April | 11am

Delivering an effective consultation: The challenges of working with sector guidance

The objectives of the session are:

• To provide an overview of different published guidance available – what sectors and types of consultation • To explore how a consultor can manage situations where different forms of guidance might be applicable • To understand what enforcement exists and how has the current situation altered requirements

This is the 369th 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.