Consultation and accountability - Holding organisations to account for the quality of their consultations

If the dishwasher I have bought starts to malfunction, I take it back to the shop.

If my car starts to misfire, I may take it to the nearest garage.

If my solicitor gives me poor advice, I have recourse to a Regulatory body

But what happens if I think a public body is not holding a proper consultation?

In many ways the most obvious and visible answer is a judicial review. In the last six years we have seen a large number of important cases, focused on all manner of procedural aspects. And still they come. In the past three weeks we have seen two really significant judgments – one concerning the closure of a day centre by Shropshire County Council, and another about a rule change by the London Metal Exchange. Recent attempts by the Government to tighten up the JR process are not expected to dampen the enthusiasm for legal challenges.

But why this emphasis on going to Court?

Is it really the best way to make consultors accountable?

Consider the drawbacks. Not only is it an expensive, unpredictable and largely inaccessible process; it has the disadvantage of being, by definition after the event - on occasions a year or more after the event! There is also the paucity of remedies. As often as not, the most a complainant can hope for is a declaration that the exercise was unlawful and for the consultation to be re-run. In the famous case challenging Michael Gove’s decision to cancel parts of the Building Schools for the Future programme, six English Councils were rewarded for their courage by obtaining a Court decision that their cases should be reconsidered. But it availed them little; the losses incurred by local authorities were not recouped.

But of course, there are other forms of accountability. The media is probably the most effective way to challenge the rich, the powerful and the institutions of state. Just ask Government Ministers like Maria Miller! Or high-profile business leaders and others who come under scrutiny. But again, the media is a somewhat unreliable. It is fickle; one moment it loves you; another it turns against you. It’s always up for a story, but if another story comes along, you risk losing prominence. Campaigners who turn to journalists to support their complaints about a consultation probably find that the effectiveness of the approach depends a lot on how ‘sexy’ the substantive story might be. Some issues are more newsworthy than others. It worked well for opponents to changes in Forestry policy some years ago, but the procedural complaints were relatively modest. It’s difficult to see how the media can be of much help if the issue itself is obscure and uninteresting.

Then there is straightforward political accountability. Local Authorities have Overview and Scrutiny Committees (OSCs) that are specifically there to act as a check and balance on the executive. In theory, they should provide effective recourse if stakeholders feel that a consultation has gone wrong, and some Councillors undoubtedly take an interest in public engagement. Recent reconfigurations of NHS services have provoked serious controversy and Health OSCs have powers to refer issues to the Secretary of State for Health – often with interesting results.

Last year, a reference from Leeds led Jeremy Hunt to refer the Children’s Cardiac Surgery consultation to the Independent Reconfiguration Panel (IRP) whose devastating report led to the abandonment of the entire project. What is interesting about this case is that there had already been two legal challenges (by the Royal Brompton Hospital and the Leeds Infirmary) – and those had, generally speaking failed to uncover the procedural flaws which the IRP process highlighted.

Just a few weeks ago, and as covered in Topic 257, several MPs rose in the Commons to complain about consultations. But what good might it have done their constituents? We have little evidence that consultors admitted to errors and decided to do something else. And neither can we find any transparent process to consider the issues that have been raised and examine them objectively.

So here is the problem. It is not easy to disentangle the procedural from the substantive. The latter quite properly belong to political arenas – and are rightly ventilated on the airwaves, online and in the media. But deciding whether the process has been fair requires rather different skills. Over the years many people have called for the creation of an Ombudsman for consultation. After all, if you run an unfair consultation, it is a form of maladministration, and from time to time Ombudsmen have considered complaints about stakeholder engagement. Alternatively, there have been suggestions that a special Conciliation and Arbitration service could be offered. Maybe worth considering!

The Consultation Institute has, of course taken another approach, by devising a comprehensive process of Quality Assurance that has the advantage of happening in real-time. By using phased sign-offs during the consultation itself, and being alert to stakeholder or consultee complaints as they occur, we avoid the usual charge of closing the stable door after the consultation horse has bolted!

One thing is certain. Greater accountability for the quality, effectiveness and above all, the integrity of a consultation should be one of the greatest drivers for improvement, and the there are still too many exercises that are simply not good enough. Improvement is necessary, and we need better accountability if that improvement is to happen.

TRIGGER POINTS

• The two new cases referred to are:- R (ex parte LH) v Shropshire County Council [2014] EWCA Civ 404, and R (ex parte Rusal) v London Metals Exchange [2014] EWHC 890. Both will be included in the forthcoming Law of Consultation courses on 14th May in Birmingham and 19th June in London
• The IRP Report is called “Advice on Safe & Sustainable Proposals for Children’s Congenital Heart Services”. It is available on irpanel.org.uk. The Institute published its Briefing Note 10 on an analysis of its findings.
• For more details of the Institute’s Quality Assurance process for consultations, please contact Jan Warner at the Institute on 01767 318350 or e-mail hello@consultationinstitute.org

This is the 258th 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