Twice in the past week, my attention has been drawn by similar issues. The first came in a tweet we received asking about the importance of consultees being able to understand the information being presented to them in a consultation, and the second in this article from the Guardian. In the Guardian article, the former northern powerhouse minister (and founder of the new Conservative “Northern Research Group”) Jake Berry MP, called on the PM to publish “public-friendly” data on the route out of lockdown.

The question is an interesting one for consultors. How far do you need to go to ensure that information in your consultation can be understood by the people you are consulting?  It’s a question that really goes to the heart of what public consultation needs to be. Readers will no doubt be familiar with the second of the famous Gunning Principles, which states that “sufficient information must be given to consultees for them to give “intelligent consideration”. How you should give this information is a very important question, especially when dealing with complicated matters.

In the courts, this was considered in R (Breckland District Council and ors) v The Boundary Committee [2009] where the provision of complex financial information to consultees was considered. The General conclusion in Breckland was that there is a need to produce complicated material in a comprehensible form for a general audience and that not to do so could potentially render a consultation unlawful.

There have also been a fair number of cases which have defined the need for consultors to provide all relevant information to consultees, which cumulated in R (The Law Society) v The Lord Chancellor [2018] which established the Leggatt/Carr Factors which are used to determine if the information is relevant and needs to be published.

In addition to these cases, there are also equalities concerns. What is comprehensible to one person, may not easily be so for others, and particularly in dealing with cases that engage people with protected characteristics, accessibility has to be the watch-word. Providing easy-read and similar document formats can play a vital role in ensuring participation from protected groups.

Determining how understandable the information you provide to consultees then will always be a balancing act, and require a deep understanding of who is likely to have an interest in your consultation. You must be prepared to provide information in different formats, and you may need to work out how technical information is best presented to ensure that consultees can actually understand it enough to give “intelligent consideration”.

One of the areas we are seeing development here is around participatory modelling and the increasing use of digital aids and resources. The Covid-19 pandemic has awakened many to the possibilities of using digital methods as part of their consultation processes, and it will be interesting to see how both resources and consultors continue to develop their approaches.

This article is a brief overview of the obligations of consultors to ensure that consultees understand the information presented to them in consultations. If you would like to ensure your internal standards are in line with best practice, the Institute offers e-learning courses on both the Law of Consultation and Stakeholder Mapping. For more information, please visit the e-learning pages of the website or contact the Institute.