Originally published 22 August 2017. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
To what extent should consultation and engagement specialists be involved in options development?
Once upon a time, those responsible for public engagement and consultation would be the last to know that their services were about to be required!
Countless times we have heard stories of functional Managers arriving at the office door armed with a tentative consultation paper, complete with options, an ill-prepared questionnaire and an ambitious timetable that took little account of principles or practicalities. The result was often a go-through-the-motions, tokenistic exercise of little value to anyone.
Happily, in most organisations, those days have long gone, and significant change is planned with professionalism and a recognition that the communications role is all-important. Those at the top will know that key stakeholders – and the general public will expect a measure of involvement, and that securing this can be a real challenge. Rudimentary stakeholder management expertise is often quite widely available in public bodies, but in-depth experience is in short supply. In recent years, there has been a haemorrhage of such skills and knowledge from the NHS and local authorities. Even in infrastructure planning, where private sector consultants are often found in numbers – and at a price, the available talent is in short supply. True experts in public consultation are a valuable resource. Apart from Health and Local Councils, we know that Government departments, Executive agencies, Non-departmental public bodies and many others struggle to find and retain best practice skills.
In cherished services like the NHS, public and patient involvement is built into the legislation, and when major changes are envisaged, Managers are obliged by law to engage and consult very early in the process. The words used are ‘the development and consideration of proposals’ so, to conform to the relevant Guidance, communications and engagement specialists are already in play, helping to identify and assist those who will participate.
In other parts of the public services, however, and in planning generally, it is a mixed picture. The increasing popularity of co-production requires active support from communications teams, but elsewhere we still have scenarios where committees of experts gather around a table and seek to narrow down the possible options before talking to anyone else. If consultation becomes necessary, then these are organised around a narrative and off we go. The odd stakeholder may cry foul, but short of going to judicial review, little can be done.
This will not last. A more sophisticated stakeholder audience, and a more argumentative general public are increasingly prone to challenge the choice of options placed before them. Ever since the Royal Brompton consultation case in 2011/2012, the Courts have been more willing to look at the way in which options were selected. More recently, we see the impact of the Supreme Court judgement in the 2014 London Borough of Haringey case which suggests that many single-option consultations may be unlawful. When consultor organisations publish a preferred option, critics are now quick to question the methods by which the favoured choice became ‘preferred’. The whole area has become something of a minefield.
No-one wants lawyers sitting around every table where options are considered. But we do want stakeholders. Those who will be affected by potential solutions or even potential opportunities have a great contribution to make. In transport, we need the involvement of passengers; in housing let’s engage with tenants or householders; in education, it’s parents – and teachers, in health – it is patients. They may be individuals, but as likely as not we will use representative groups of one sort or another. Which ones? Some are more representative than others. Some are more credible. Some are more reliable. Some send the ‘usual suspects’. Some have an altogether incompatible Agenda. They cannot all be involved in options development. No room would be big enough.
Who gets to be in that room is therefore one of the most difficult, and sensitive questions upon which consultation and engagement professionals must advise. Best practice has been evolving quickly in recent years, and there is growing evidence that improving the quality as well as the quantity of pre-consultation involvement has a real bearing upon the success of any subsequent dialogue. Guiding consultor organisations through options development, avoiding prematurely excluding certain potential solutions and ensuring that equality considerations are taken into account early enough in the process requires a steady nerve and effective skills. Those undertaking this role need detailed local knowledge, a grounding in the Law of consultation, familiarity with the relevant subject domain and an ability to work simultaneously with the highest-ranking functional Managers and the least experienced stakeholder groups. In short, this is a demanding role, and needs to be undertaken as early as possible in any major project where consultation is likely to be required.
TRIGGER POINTS
- How early is your involvement in major projects requiring consultation?
- Are you able to influence the process of options development?
- The cases referred to here are R (ex parte Moseley) v London Borough of Haringey [2014] SC 56 and The Royal Brompton Hospital v The Joint Committee of PCTs [2012] EWCA Civ 472. Both are discussed in depth at the Law of Consultation training course – next offered on 27th September in Birmingham.
- Best practice options development and the challenging issues as to Who’s in the Room are major themes of the Institute’s Preparing for a Public Consultation training course on 26th September in Birmingham.
This is the 326th 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.