Originally published 10 October 2014. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
At various times in the last fifty years, Governments have responded to pressure to handle complaints of various kinds by setting up a range of Ombudsmen. Including the devolved administrations, there are now about a dozen separate organisations using the Swedish terminology that has now been adopted worldwide.3
Several of these Ombudsmen will, from time to time handle a case that involves consultation. Just consider a couple of examples. The Local Government Ombudsman ruled on a plan by NE Lincolnshire Council to replace a local swimming pool, and on another by Isle of Wight Council to consult the public on a management plan for beach huts. Now it may be disrespectful to users of pools or beaches to suggest that in the in terms of public engagement, this is fairly low-level stuff. And the Ombudsman’s declaration that these consultations were unsatisfactory didn’t make the front pages of our national newspapers. But it was a remedy …of sorts.
In the real world, complaints about consultations arise at two points in the process. First comes the period of the consultation itself, when dissatisfied consultees may wish to challenge the conduct of the exercise – or maybe the information that has been published in the consultation narrative. More typical is the second window of opportunity – when the eventual decision is announced, and when those disappointed with what’s happened try to figure out how to protest. For many such people, the consultation is the easiest part of the process to challenge – the soft under-belly of the decision, if we like …
This is one of the main reasons for the astonishing growth in legal challenges to public consultations. Those that come to Court are but a fraction of the cases that are contemplated. But those that are dropped are not always those with a weak case; a good many go no further because of the costs, the delays and the inevitable disruption of using our legal system. It is such a shame that this has become such a preferred option for those who dislike decisions.
It is not that our Courts cannot operate as an effective arbiter of the evidence. Nor is it the costs and time involved in mounting a challenge. It is that those who feel cheated by a poor consultation have no effective choice other than the ‘nuclear button’ of legal action. There is no low-cost, quick-turnaround, authoritative avenue of complaint.
Speed is one important factor for unhappy consultees. It is this that deters them from using the Freedom of Information legislation. If the consultor is unwilling to disclose key documents, and starts playing for time, frustrated complainants can be denied information they consider vital to make their case. Remember that if they want to apply for a judicial review, time is short, and many applicants have had to march to Court without essential documents because FOIA is slow.
A dedicated, specialist consultation Ombudsman may not be that much quicker – but would certainly arrive at a decision faster than a Court. But it could also be a far more effective form of defence for consultors with unpopular but necessary proposals. One Health Board in Wales recently spent £300,000 of the public’s money defending a judicial review based upon allegations that a consultation had been unfair. It wasn’t. But who can blame this and many other public bodies if they feel that public and media mistrust of Government is such that they are deemed guilty until found innocent?
In recent years we have seen the growth of independent, third-party Companies offering mediation and arbitration services. There is even a respected firm offering Ombudsman services. In theory, it might be possible for a public body being challenged by citizen objectors to agree jointly to such a dispute resolution service, provided of course a suitable provision can be made to cover the costs of the service. To our knowledge this has yet to happen in a contested consultation – though in retrospect our Welsh Health Board might have preferred to spend £15,000 on an Ombudsman rather than twenty times as much with lawyers!
To have credibility for such a service, there has to be genuine independence – and the service providers must be undisputed experts in their field. So the question for the Consultation Institute is whether to start offering such mediation and dispute resolution services itself – or in partnership with other relevant bodies.
For our political parties, the question is whether they will build upon their fine words by taking public consultation seriously. As they write their Manifestos for next year’s election, maybe they should consider promising this cheap, accessible remedy to those that think a public consultation is a sham. The success of the Ombudsman idea elsewhere shows it can work. Why not try it in this context?
TRIGGER POINTS
- Has your organisation been threatened by or involved in judicial review proceedings about a public consultation? If so, how disruptive was it. And how costly?
- Have you ever experienced the services of independent dispute resolution services?
- The best way to avoid serious complaints is for your consultation to be independently Quality Assured. The Institute specialises in this service; for further information contact Jan Warner
- This year’s Conference is on 22nd October in London and is on the theme of The Power of the People. The Ombudsman idea will feature in Rhion Jones’ presentation.
This is the 266th 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