The perils of piecemeal consultations

Piecemeal consultations sometimes seek the views of citizens at various stages of long-term changes to our public services. Be aware of the pitfalls.

Massive changes are often less about a ‘big bang’ and more about a series of incremental changes. This poses special challenges if we are to engage successfully with those affected.

Part of the problem is timescales. Major infrastructure projects take years – sometimes decades. Smaller-scale improvements frequently take longer than one might expect. And significant changes in public policy initiated by one Government occasionally only work through under the watch of its successor. The problem frequently is that the interval between pain and gain is too long.

The other difficulty is that there can be ‘winners’ and ‘losers’ at different stages of the project. So any impact assessment of new proposals has to balance the short-term effect of the plans against their long-term consequences. A consultation seeking people’s views on a multi-stage phased project is very different from an exercise with a more immediate, narrowly defined scope. More often than not, it is easier to engage with people over a specific proposal than a wider-angle more strategic vision. It is quite challenging, for example, to persuade people to take an interest in the Regional Waste Strategy, but relatively easy to involve them in discussing a proposal to build an incinerator (sorry, energy from waste plant) on the edge of town. In another example, relatively few people will attend an event to consider building a Cross-city underground rail line. But far more will turn up in the part of town that may be subjected to massive disruption for six years while they build it. In these, as in other scenarios, for the community as a whole to be long-term ‘winners’, it may be necessary for some people to be short-term, or even permanent ‘losers’. Can public consultation cope with such complexities?

Consider a situation that recently arose in Wales. Earlier this summer Denbighshire County Council faced a legal challenge to its plan to merge two schools near Ruthin. The plan was to merge a Welsh language medium school with a nearby dual stream school (where teaching in the Welsh language and English exist side-by-side), and Welsh language supporters feared that once that happened, the use of Welsh would diminish – particularly outside the classroom (e.g. in the playground). Under the Welsh Government’s regulations, a full Impact Assessment was needed as part of the consultation with local people.

The problem was that this change was planned in two phases. Under the first phase, the two schools would merge to become one school with common leadership and staff, but remain on their existing sites until a new greenfield site became available for the erection of a new replacement, amalgamated school. That would be Phase Two, and the case turned upon whether the scope of the public consultation extended to the full plan, or was confined to the First phase. The impact of the first phase on the language was minimal, but the effects of the second phase might well have been significant. In this particular case, the Council had tied itself in knots and published a consultation paper which confused many people; hilariously, the English text of the consultation implied that the consultation was of a certain scope, but the Welsh language translation suggested differently! The lack of clarity was undeniable and the claimants succeeded in the Judicial Review.

However, the case raises a classical problem faced regularly by the NHS, local authorities and many other public bodies. When they are pursuing a long-term multi-phase programme of service changes, they are often obliged to consult piecemeal – one stage at a time and naturally the debate is focused on the perceived or forecast impact of that stage. Someone who asks about the consequences three stages down the line is given short shrift. It makes it so difficult for the organisers to structure the consultation narrative to give consultees the clarity that might enable them to exercise ‘intelligent consideration’ - as required by the second Gunning Principle.

Sustainability and Transformation plans (STPs) in England are a case in point. Were the 44 ‘footprints’ to consult on these plans (They probably should!) people might want to know about the impact of implementing them – through a series of service changes that are probably yet to be properly thought-through. And yet without understanding the ultimate effects of what is proposed, how can we have an informed debate?

Maybe there is a case for publishing two Impact Assessments. One should cover the short-term forecast consequences of that which is under consideration at this time. The other should anticipate the longer-term, and with the necessary caveats that there are fewer certainties – describe the issues emerging and invite discussion on that wider agenda. Might this be the best way forward?

TRIGGER POINTS

• How does your organisation handle long-term change proposals?
• Can you differentiate between short-term and long-term impacts?
• Consultees often complain that they cannot respond to one-off proposals without seeing the fuller picture. Has this happened to you?
• The first STP consultations may be imminent. Will people respond to a dialogue on the wider agenda?
• The case considered in this Topic is R (ex parte Aron Wyn Jones) v Denbighshire County Council [2016] EWHC 2074)and it will be fully covered in the Institute’s Law of Consultation training course. Next delivery of this course is on 18 January in London.

This is the 310th 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.