Too much law? Or just not enough understanding?

To what extent do public engagement professionals need to understand the law of consultation?

Seven years ago the Institute ran its first training course on the ‘Law of Consultation.’ Our research centred on about 30 judicial reviews we deemed relevant for those charged with running public consultations. Almost a hundred courses later, with over 1200 course attendees, about 35 versions and four variants on a theme, one can be forgiven for wondering whether the lawyers have exceeded their brief and that High Court cases dominate too much of the best practice agenda. We now have over 150 relevant judgments with, on average a significant addition every month.

Those who are passionate about engaging with stakeholders or the general public are often ‘people’ persons. They want to seek out those who are impacted, get to know them, hear their thoughts and maybe work with them to find the best possible, or maybe least worst solutions. Barrack-room lawyers, point-scorers and unreconstructed pedants are not their favourite audiences, and they are far more comfortable teasing out views and opinions as informally as possible. All this talk of law is hardly helpful.

On the other hand, the impact of the Courts has been considerable. Until 2010, we looked to Government and the devolved administrations to track changes in recommended practice through various Codes of Practice or departmental Guidance. Then, at a stroke, Oliver Letwin tore up the 2008 Code, replaced it with a very general set of Principles and, in effect handed the initiative to Judges who have regularly extended and re-interpreted the law as an ever-wider range of consultation scenarios have been challenged in Court. The well-known rules, known as the Gunning Principles, have always sounded straightforward but the trick is knowing how to apply them in specific statutory, regulatory or public service environments. If this was easy few cases would come to Court. Only when lawyers on both sides can simultaneously fancy their chances of success can challenges proceed. Clearly there are still many grey areas.

So who needs to know what exactly?

• Public engagement generalists need to know when the law will require organisations to conduct a fully compliant lawful consultation. This is not nearly as clear-cut as we would like. The distinction between engagement and consultation can be subtle and a perfectly sensible approach to undertake the one can morph into a requirement to satisfy the standards of the other.
• Consultation specialists have to know the detailed rules and the main pitfalls that have led comparable organisations to spend fortunes defending vulnerable consultation exercises. They need enough awareness to be able to argue for best practice (or at least ‘lawful’ practice) with bosses or domain experts who think they know better. Sometimes they also need to signpost legal advisers with limited experience of consultation law towards sources of reliable insight and analysis.
• Service directors, Councillors or senior public sector management need a sounder grasp of political and legal risk. They benefit from understanding the changing preferences of campaigners and the role that legal challenges play in opposition to consultation proposals. The extensive catalogue of caselaw is full of instructive examples of how public bodies and other major organisations have sought to use consultation appropriately and in accordance with the demanding legal rules.

And how best to learn? The aim is not to make officials into lawyers, or to provide case-specific legal advice. It is to explain legal principles and their application in an effective way and meeting the above objectives. At the Institute, we have four different offerings:

• For those in a senior position who merely want a general overview and confidence that their staff can work within the overall framework, an in-house Executive Briefing or Workshop may be the best option.
• For organisations wishing to equip two or three individuals with the requisite knowledge, consider sending them on a forthcoming publicLaw of Consultationcourse.
• For public bodies wishing to raise the awareness-level of all those likely to be involved in engagement and consultation and seeking a step-change improvement in legal compliance, an in-house sector-specific Law of Consultation course (e.g health, local government, infrastructure planning etc) can be delivered.
• For those most likely to require an in-depth appreciation and more comprehensive information about the range of relevant precedents, we will now offer a two day Masterclass with time to delve into more detail and provide opportunity to probe and analyse those cases likely to influence the conduct of forthcoming consultations. This is to reflect the immense body of knowledge that has been accumulating in recent years and which, if it is only found in the advice of in-house or expensively contracted lawyers on an ad hoc basis, may be too late to help consultation practitioners on a daily basis. Where once it was perfectly reasonable for these people to lack much know-how on the law, it is now no longer a viable approach and the only question is how best to equip them with the basic understanding that will help them consult fairly and lawfully.

TRIGGER POINTS

1. Who in your organisation knows what about the Law of Consultation?
2. Does your organisation have a realistic view of the risk of legal challenge?
3. To discuss whether an Executive Briefing or a Workshop might be appropriate for you, call Becky at the Institute on 01767 318350 or email hello@consultationinstitute.org
4. To book places at the next Law of Consultation course, clickhere or call the office
5. To discuss the possibility of an in-house Law of Consultation course, call Jan at the Institute on 01767 318350 or email hello@consultationinstitute.org
6. Details of the 2-day Masterclass are availablehereand the first event will be run in London in November

This is the 348th 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.