Reputation at Risk - Beware the danger that lawyers could help you damage your reputation

Within hours of the poignant celebrations in Liverpool as the Hillsborough families marked the Inquest verdict, and called for ‘Justice’, the Chief Constable of South Yorkshire Police was suspended. This was not directly related to the tragic events of 27 years ago. Nor was it about the shameful cover-up. The reality is that Peter Crampton could not sensibly remain in post following the stance adopted by South Yorkshire Police’s legal team at the recent Inquest.

Newspaper reports claim that individual Police chiefs and the S Yorks force spent £12m - £14m on legal fees. It took twice as long as expected and heard 296 days of evidence. Victims’ families and other campaigners argued that this was largely due to the Police barrister and his team persisting to challenge witnesses’ testimonies and argue the case that an unruly mob of drunken louts had, at least in part, caused the disaster. So were these over-zealous lawyers pushing the envelope so-to-speak? Or were they merely carrying out the instructions of their clients – South Yorkshire Police and certain named individuals?

The issue matters to consultation professionals – and particularly those who may have become embroiled in legal challenges. This is because any analysis of recent Judicial Reviews shows many situations where public bodies are on the defensive and we scratch our heads and wonder “Why on earth did they say that?”.

Consider this – mythical, but not untypical – situation. A public body realises that it needs to consult, but unfortunately makes serious mistakes and it has to defend a claim to set aside the decision in a Judicial Review. It sits down with its lawyers to assess its chances of successfully resisting the claim. There are usually several strands of argument. Then a clever lawyer mentions that there are other arguments. For example, it can try to persuade the Judge that it never needed to consult in the first place. Or it could consult using whatever method it liked. Or that it was exempt from any of the rules. It is these kinds of practices that infuriate claimants – and genuinely damages a public body’s reputation.

This is not a conspiracy by clever lawyers. Ultimately it is the client that instructs the legal team; not the other way around. Maybe the trouble is that the quality of legal advice is so variable. When we study Judicial Reviews we often encounter arguments that have clearly been concocted after the event; public bodies trying to justify their position with unlikely explanations or rationalisations of their behaviour. No wonder claimants with legitimate grievances about poor consultations view the legal process as something of a lottery, with too much depending upon the quality of the lawyers and the tactics they use.

Back to Hillsborough. An insightful article by David Conn and published in the Guardian last week told the story of the Inquest and suggests that far from celebrating success and the overdue righting of a great wrong, what it actually showed was the failure of the legal system.

As a result, the Hillsborough families still find it necessary to campaign for a justice that has proved so elusive. Our system is based on adversarial argument as a means of getting to the truth, but the Courts have limited powers to explore issues that are not tabled by the lawyers. It can so easily become a gladiatorial contest as well-paid barristers slug it out, and the ultimate stakeholders are relegated to the sidelines. When no-one is watching, the consequences are few.

But in the case of the Liverpool families, people were watching and public sentiment gave the Police & Crime Commissioner no choice but to take action. People are also watching if their local Hospital or their Council goes to Court and portray themselves as reluctant to consult and unwilling to listen. Few things bring public consultation into disrepute more than organisations trying so hard to find excuses or wriggle out of their responsibilities, instead of admitting to error and engaging properly with people.

Ideally we should avoid legal proceedings whenever possible. The system is expensive, time-consuming and in many ways ill-suited to settling disputes about a public consultation. Some form of Ombudsman or methods of arbitration might allow better-informed investigations without having to construct elaborate rationales in order to seem consistent with previous precedents. But we don’t live in this ideal world and as far as we can see ahead, there will continue to be a steady stream of legal challenges. All we can ask is for responsible public bodies, when preparing their cases, to have regard to the way in which they argue their case. In days when too many of our institutions have lost the confidence of the public, we can ill-afford any further erosion of reputation … whether in a Court of law or in the Court of public opinion.

Trigger points

• You may wish to read The other villain of Hillsborough saga: legal system that left families in torment by David Conn and published in the Guardian on 29th April 2016.
• Have you ever had to brief counsel in a legal challenge? Were your arguments properly considered?
• How conscious is your organisation of its public reputation?
• One way to reduce the risk of legal challenge is to obtain an independent Quality Assurance that your consultation meets best practice.
• The world is not ideal: the Law of Consultation is required knowledge for everyone involved with public consultations. The definitive one-day Institute training course is being run twice this month – 11th May in York and 26th May in London.
• Guy’s and St Thomas’ NHS Foundation Trust has a vacancy for the post of Patient and Public Engagement Specialist. The Trust is keen to seek applications from people with a background in social / opinion research, together with experience of developing and implementing user involvement strategies in the public sector.

This is the 296th 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