Originally published 10 January 2017. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
Yes, a cliché, but an effective way of describing issues or problems everyone knows to be there – but are unwilling to discuss.
A common criticism of public consultations is that they do not always ask the right questions. Of course, that depends upon whom you ask. Consultees frequently wish to see questions about underlying policy – something which the consultor may be powerless to influence. In other cases, the lack of a precise question makes it virtually impossible for respondents to guess what consultation organisers want to know.
We had a classic example of this last week. The Department of Education has taken over responsibility for setting up the Institute for Apprenticeships. This will play a key role in the Government’s flagship policy to secure 3 million apprenticeships by 2020. It has now launched a consultation on the Draft Strategic Guidance for the new body – full of important issues as to its priorities and modus operandi. Sadly, this is nothing but a tick-box exercise. The clue is in the questions. There aren’t any. It just publishes the text of the Guidance and asks for comments. There is nothing whatever to point to the issues upon which the Department is open to influence. We thought we had said goodbye to this type of Government consultation a long time ago.
Maybe of greater long-term significance is the High Court judgment handed down just before Christmas. In a nutshell, this was a dispute between Derbyshire County Council and the new proposed Combined Authority for Sheffield, Barnsley, Doncaster and Rotherham. At issue is whether the new Mayoral structure should include Chesterfield.
Sheffield’s consultation cost £350k. It was supported by IPSOS-MORI. So, unlike others on local government devolution, which the Consultation Institute has regarded as rudimentary and tokenistic, this was for real. Derbyshire challenged it on many grounds and appeared to many people to have had strong arguments based on the Gunning Two principle that consultees must have sufficient understanding of the proposal to enable ‘intelligent consideration’. Mr Justice Ouseley would have none of it. Yes, some of the information was misleading, but not to the point of making the consultation unlawful.
But on another key aspect, Derbyshire won its case. The Court looked at the consultation questions and was critical of them. That is because the public were never asked about the core issue – whether Chesterfield should or should not be part of the new Combined Authority. In short (and in keeping with the spirit of 2016) there was no IN/OUT question.Instead the consultation asked, “To what extent, if at all, do you agree or disagree that local authorities should work together formally where there are strong economic links with neighbouring areas?” The Judge called the question ‘tendentious’ suggesting it was leading respondents to say ‘Yes’. He went on to say, “A ‘No’ to the general concept seems distinctly odd, yet ‘Noes’ there were...” He rightly concluded that the question had been designed to act as a proxy for the real question – which was, of course, IN/OUT.
Over the years we have seen many similar consultations. Instead of asking residents whether they approve of Wind Turbines or a Solar Farm, consultations have asked people whether they support the principle of renewable energy! Rather than seek views on the closure of local health services, patients have been asked if they are in favour of securing better health outcomes. We might as well ask if it rains in West Wales!
There is, of course, a reason why this type of practice persists. It is because consultors try to disguise the fact that certain decisions have, to all intents and purposes, already been taken. Councillors in Chesterfield had apparently agreed to join in with Sheffield and were legally entitled to do so. But they had not consulted local people. And they certainly had not consulted the wider population of Derbyshire, whom the County Council felt would lose power and influence if the planned expansion of the Combined Authority took place. The key question went unasked because it should have been asked much earlier, but wasn’t. This analysis holds good also for the Renewables example. And probably the failure of the Department of Education to ask any questions about the Apprenticeship Institute Guidance, is because it has already decided what it wants to publish.
So, in these situations at least, the elephant is in the room because decisions may have been taken, or assumptions made and no-one wants to draw attention to them, as it might cause embarrassment or even reveal pre-determination. In contrast, best practice demands that all is revealed so that the Gunning Principles are observed and that the long-suffering public are asked a sensible set of questions.
TRIGGER POINTS
- Have you ever experienced a consultation where key questions have been omitted?
- Are you sure you have been totally frank about key issues that might affect responders to your consultation?
- The Department of Education’s consultation on the Draft Strategic Guidance for the Institute for Apprenticeships can be found here.
- The specific case discussed in this Topic is [Derbyshire CC v Sheffield Combined Authority [2016] EWHC 3355](http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/Admin/2016/3355.html&query=(Derbyshire)). It will be discussed on 18th January at the next Law of Consultation training course in London. A small number of places may still be available. BOOK NOW!
This is the 312th 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.