At what point exactly, does the consultation process end?

Traditionally we used to be clear about this. Once the process of listening came to an end and the data was analysed, the feedback published and a Report sent to decision-makers, that was it. Job done.

Our focus was rightly on the process for consultation, and not on the process for taking the decision itself. All manner of complexities arise if we look at the way in which some decisions have to be taken – some of them very Sector-specific. The Spatial planning world is so different from, say Social services. The NHS has its own legislation and there are strict governance issues affecting some public bodies such as the Police.

Beyond these there is legislation on Equality that requires organisations to have due regard to the impact of certain decisions upon Protected Categories. Where there has been a consultation (or should have been a consultation) there is an expectation that the output of such an exercise would inform the decision. That means taking people’s comments and responses very seriously.

Over the years, there has been a trend towards challenging decisions on grounds that relate to the consultation – or to dialogues that took place between the consultor and consultees. Some of them allege that the decision was unlawful because the fundamental requirements of the Gunning Principles were not met. The fourth of these Gunning Principle requires that decision-makers give what is called ‘conscientious consideration’ to the consultation but it is not always obvious what that really means. In 2011, a campaign group took the Strategic Health Authority to the High Court arguing that those deciding to add fluoride to their water had given insufficient consideration to the views their supporters had expressed in the consultation. More recently, the Tobacco Manufacturers mounted a massive challenge to the Secretary of State for Health over plain packaging for cigarettes – again arguing that proper consideration had not been given to their ‘expert’ respondents.

Both legal challenges failed – but only because the consultor could convince a Judge that they had indeed considered what people had said. That is rarely possible on the strength of a single decision-making meeting, no matter how impressive and comprehensive a Report of the consultation was submitted for its consideration. True, a video stream of a meeting full of debate about the merits of the decision may give the appearance of a genuine and conscientious process. But more is needed.

If there are genuine choices; if a number of realistic and viable alternative solutions have been offered, a best practice consultation should have unearthed further insights into their relative merits. If nothing new has been heard, this should arouse suspicions. Quite often, consultees will express concern about the impact of one or more options. They may be unconvinced by the consultor’s assurances. Or they might struggle to understand some technical arguments. Whilst queries and questions may have been addressed in real time during the dialogue phase, there may be issues that remain outstanding when the consultation closes. Now is the time to deal with loose ends.

Some issues or objections wither over time. Others magnify and take consultors by surprise, gathering media traction and community support on the most unlikely of issues. Campaigns attract support sometimes because of a failure to provide an adequate rebuttal to claims or exaggerations that consultees have fomented. Tempting as it is to ignore some of them, suspecting that they will not, in the end, amount to much, the right advice is to use the post-consultation period as the obvious opportunity to set record straight and to fess up on any embarrassing failures.

This particularly applies to criticisms of the consultation itself. Any unaddressed issues of significance can contaminate the decision process and cast a shadow over its perceived integrity. Conscientious consideration means taking account of any known weaknesses in the dialogue with stakeholders. In particularly contentious situations, creating or appointing a local panel to scrutinise the conduct of the debate has major benefits. The Institute recently organised such a body to monitor the controversial proposals on airspace changes being consulted upon by Edinburgh Airport. At our Conference in June, Dame Sue Bruce, who acts as its Chairman, explained how important such a body can be to provide reassurance that the process is fair to local residents.

For the NHS in England, local Health Overview & Scrutiny Committees have a statutory role in approving methods for engaging on service changes. If they are unhappy, they can refer the matter to the Secretary of State; the Welsh Government is considering something similar. Elsewhere the same principle holds good. If there is a body – statutory or otherwise – whose approval or acquiescence is required for the eventual decision to stand unchallenged, now is the time to work with them. Share the output with them; discuss what it might mean; identify anything further that may be done. And once that is achieved, alongside the necessary handling of outstanding issues, we may be getting close to fulfilling the requirements of conscientious consideration.

TRIGGER POINTS

1. To what extent to build in time for consideration at the end of the dialogue phase of a consultation?
2. The reference to the Equality Act is for S.149 which requires public bodies to have ‘due regard’ to the effects of their decisions on equality groups.
3. The cases referred to here are R v (ex parte Milner) v S Central Strategic Health Authority [2011] EWHC 218 (Admin) and R (ex parte BAT & other Tobacco Companies) v Secretary of State for Health [2016] EWHC 1169
4. The issues covered in this Topic will also be explored in the Institute’s new Training Course Conducting a Public consultation 

This is the 327^th 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.