Originally published 7 March 2017. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
How fault-tolerant is the process of listening to stakeholders?
For some years, a tactic of choice for anyone objecting to decisions taken to change public policy or public services, has been to apply to the Courts for a Judicial Review. For many, it has seemed that decision-makers were more vulnerable on the process they followed than the actual decisions they took. No wonder it has engendered a defensive culture among those who undertake public consultations. Avoid mistakes at any cost! This topic considers whether this fear is justified.
There has probably never been a perfect consultation exercise. The very nature of the task, inviting human beings to offer their opinions on often-complicated issues, takes us towards the realm of relationships and the nuances of language – even psychology. It is not an exact science.
And of course, we are all familiar with the litany of things that can, and sometimes do go wrong. The case that led to the original enunciation of the Gunning Principles arose because a hapless Head Teacher failed to circulate a questionnaire to the parents facing a possible schools reorganisation. Indeed, there’s a theory that there is always one street in any town which never receives the consultation paper/ questionnaire/ brochure/response form. The LibDem peer Baroness ‘Ros’ Scott used to tell a lovely story of two ladies running a wool shop in deepest Sussex and complaining that they had not been told about a forthcoming public meeting on a subject that mattered to them. When someone pointed out that they had displayed a poster publicising the event for two weeks, they were heard to remark “Oh, we are far too busy to look at posters in our shop window.” Almost every consultor organisation knows it is virtually impossible to please everyone in publicising a consultation! You can also run into trouble when choosing a venue. We once heard of a public meeting held at a prestigious hotel; shame they charged £5 for parking your car! It’s a bit more serious if you rely too much on an online survey, and your website closes down for a week!
In the final analysis, technical screw-ups of this kind seldom lose one a Judicial Review, much as they damage the reputation and credibility of the consultor organisation. What matters more is if the proposals are inadequately or dishonestly described. The second Gunning Principle is about providing enough information about proposals so that consultees can give them ‘intelligent consideration’, so deliberate or negligent failures to explain them properly is potentially a serious matter. Here we find disputes about the facts and figures. When the Royal Brompton Hospital disputed its omission from the configuration options for children’s cardiac surgery, it questioned key statistics, and won its case at the High Court.
The Court of Appeal, however, reversed the decision, and made some interesting observations including:
“One of the functions of a consultation is to winnow out errors in the decision-maker’s provisional thinking …. In short, it is inherent in the consultation process that it is capable of being self-correcting …. It is not enough, therefore, for a party seeking to quash a consultation exercise simply to point to some facts that are incorrectly presented.” (per Lady Justice Arden)
That phrase “self-correcting’ has provoked some debate. What the Court probably meant is that an effective consultation produces a period of discussion and an environment for opposing sides to argue their corner. That, however, only happens reasonable standards are observed, and is surely a strong case for Quality Assurance.
Deliberate misrepresentation is, however, another thing entirely. Failure to explain what is proposed, or to tell people the likely implications can lose you a Court case, and this is especially the case if consultors have been careless working out the impact of their changes on equalities groups. The acid test is whether, had consultees known the truth of the situation, they might have been more likely to respond or maybe responded differently had they not been misled. Note that it is not enough just to have been presented with inaccurate information. As determined in the Robson & Barnett v Salford CC case, those challenging a consultation in the Courts would also have to prove that someone actually had been misled.
The most irretrievable mistakes are made at the top. Here we find over-zealous bosses, viewing consultation as a necessary evil and keen to tick the boxes but confident that they know the answers and just keen to be going through the motions. They may cut corners, shorten the timescale, curtail the options or restrict the response methods, and inevitably affect stakeholders’ ability to influence decisions. No amount of cosmetic PR window-dressing can offset clear evidence that the decision has, in effect, already been taken. So, the biggest challenge facing consultation professionals right now is not to ensure the accuracy of facts and figures used in a consultation – desirable as this must be – but to prevent Senior Managers from compromising the integrity of a consultation before it starts! That is still ‘work-in progress’ and is only ‘self-correcting’ when they are replaced by more consultative-minded Managers.
TRIGGER POINTS
- The cases referred to in this Topic are The Royal Brompton Hospital v The Joint Committee of PCTs [2012] EWHC 2986 (Admin) and [2012] EWCA Civ 472 and R (ex parte Robson & Barrett) v Salford CC [2014] EWHC 3481. Both are considered at the Institute’s Law of Consultation course – next event is at York on 26th April 2017.
- Two-hour Executive Briefings for Senior Managers can now be delivered by the Institute; contact Martin Roach via email or on 01767 318350 for details.
- The Institute’s Conference this year will be on 7th June in Birmingham and will consider the role of consultation in the age of fake-news, post-truth and a potential retreat from evidence-based decision-making. Early bird bookings available until 31st March.
- Norfolk County Council is looking for a Stakeholder & Consultation Manager. £45,840 - £50,613 per annum, 37 hours per week, permanent contract. Click here for more info.
This is the 316th 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.