Are options optional? - Some consultations have options, but many don’t; what’s best?

The huge variety of consultations makes it difficult to prescribe hard and fast rules for all aspects of the process, and there is always a debate as to whether or not options are required. See previous topics (including No 119 – Is that OK then?)

At this time of financial cutbacks, however, many public bodies are having to cobble together budget-reducing proposals and subject them to consultation somewhat quicker than would previously have been normal. Not all of these include traditional-style options and the speed required to meet deadlines has led many organisations just to present their selected proposals and ask the public to comment.

So, let us be clear as to why options are advisable:

• Proposals rarely just emerge. They are usually the culmination of a process of evaluating alternative approaches, and we would all like to believe that this has been driven by proper considerations, professional and honest. Modern thinking on transparency demands that these choices are open to scrutiny. • Key decisions are normally about change – and there is never just one route. If public bodies and others are free to take their own decisions, or under no obligation to consult, then presumably they can go ahead. But if consultation is required, those decisions must be opened up for discussion. • A take-it-or-leave-it consultation arouses suspicions that alternatives have been dismissed unreasonably. Presenting all the viable options, and placing them in the public domain in ways that are accessible to key stakeholders, can help allay those fears • Options can reflect alternative visions, values or assumptions and prudent organisations who recognise the value of carrying public or stakeholder opinion with them realise how important it is to engage with them on these matters • Having options in a consultation is more empowering for consultees. It suggests and defines the scope of the dialogue and motivates more people to participate.

So why do we have so many without options?

Sometimes it is because managements have failed to plan for the consultation sufficiently in advance, and run out of time. They make their choice, start to plan the implementation and just go through the motions of a tick-in-the-box consultation.

On other occasions, organisations convince themselves that (to quote a famous phrase) “There is no alternative” and so set out to ‘sell’ their policy to the public.

In some specific circumstances, the process has been deliberately structured as an adversarial yes/no question. Planning permission, for example works like this. You apply for planning permission, and the consultation takes the form of an opportunity for people to register their ’objections’. This is a somewhat dated concept of engagement, soon likely to be modified by the Localism Bill which will oblige developers – under some circumstances, to engage in pre-application consultation. Neighbourhood planning proposals will also probably involve communities in looking at options for their own areas.

For consultation to be meaningful, clear choices are best. Options should never be created just to give the appearance of choice where there isn’t really one. Every one that is published must be real – and capable of being implemented. But within those rules there is flexibility – and it is perfectly acceptable for consultors to declare one choice as a preferred option – provided it explains why.

Consultations without options may not of themselves be liable to legal challenge, but should be viewed with suspicion. What’s happened to all the alternatives? Who made those decisions? And, Should other voices have been heard before such decisions were taken?

Options are best and should ensure a better debate.

Trigger points

• Do your consultations normally offer consultees a range of options?
• Do Managers appreciate their responsibility to consult before making strategic choices?
• Some of the issues in this Topic will be considered in the Seminar Legal Challenges to Consultation – on April 13th in London.

This is the 184th 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