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Do you know if you’re consulting or engaging? Sometimes the Government don’t…

One of the key promises from the Government prior to the election of December 2019 was  to develop a National Disability Strategy. Originally promised by the end of 2020, the development of the strategy was delayed due to the pandemic and it ended up not being published until 28th July 2021. The process of arriving at that strategy however came under challenge in the courts, and this week we saw the judgment.

The core of the challenge was a dispute over whether or not the Government had consulted on the Strategy- though not perhaps in the way we normally see it. Usually when a complaint such as this arises, it’s because the claimants allege that the Government has not consulted, and the Government claims that it has. Here, it was the other way round. Sounds odd? Let’s have a little look at it.

As part of the process of arriving at the Strategy, the Government had published a survey entitled “Tell us your thoughts for our National Strategy for Disabled People”. It included 113 questions, with all but four being multiple-choice (the remainder being free-text), though they were targeted so not all participants would see them, depending on whether they were a disabled person, a carer, or a member of the general public.

The characterisation of this survey was the thing on which the case turned. In evidence to the Court, the Government characterised the survey as “never intended to be a formal consultation exercise on any particular proposal… The Survey, together with the Disability Unit’s other activities, were listening and insight gathering exercises undertaken as a means to understand more about the lived experience of disabled people”.

Claimants however alleged that it constituted a consultation and therefore had to be done in line with the Gunning principles and other common law requirements, something which might not be true if it was held not to be a consultation.

It’s not the first time we’ve seen this sort of thing- the Government has claimed they were not consulting before, most notably in R (FDA, PCSU and PROSPECT) v Minister for the Cabinet Office, in which it was determined that the question of whether a body has engaged in consultation was one of substance, not form. It finds an analogue in the so-called ‘Duck test’. If it looks like a duck, and quacks like a duck, then it’s probably a duck.

In this case, the judge determined that the Survey both looked like a consultation, and functioned as a consultation, and therefore to all intents and purposes, was a consultation. This determination proved problematic for the Government, as it brought the Survey under the requirements of the common law principles on lawful consultation.

Where it was particularly a problem here was under Gunning 2, the provision of sufficient information to permit ‘intelligent consideration’. The Government freely acknowledged that they had made no attempt at any stage to communicate any of the proposed content of the strategy, despite the Survey being presented as a way for the strategy to be shaped. The judge concluded that despite this presentation, the lack of information meant that it fell foul of Gunning 2- not enough information had been presented to allow ‘intelligent consideration’.

Curiously, the Government made what the legal fraternity would term a ‘bold’ submission, that the failure to comply with Gunning 2 was a basis for their argument that the Survey had not been a consultation- they claimed it was so obviously not allowing people to comment on proposals that it couldn’t possibly have been a consultation. The judge rejected the suggestion, pointing out that the failure to comply with a duty to consult doesn’t prove that there was no such duty.

The case was also argued on equalities grounds, that the Government had not done an equalities impact assessment on the Survey, though they had for the Strategy as a whole. Claimants had multiple criticisms partially about the Survey being online only, but the Easy Read version being offline only; that no version had been produced for Disabled Peoples Organisations, and that the six-week timescale was likely to be prejudicial to disabled participants. The judge rejected these arguments, pointing out that there was plenty of evidence that the survey had been specifically designed to take account of the needs of those it was primarily aimed at. In any case, he said, the PSED required ‘due regard’, not perfection.

The major takeaway from this case is that you should always be aware of what you’re doing- if you’re doing a questionnaire or survey, are you actually consulting? Here, and this is an important point which largely reflects our own view on the engagement-consultation divide, though the exercise had started as one which was a general information collecting exercise with no commitment to link it to specific content or impact, that link had quickly and clearly started to be made, and within short time publications were suggesting that link had been established.

So when you’re next undertaking any form of engagement exercise- make sure you double check what you’re actually doing. Make sure that your comms is clear- are you just collecting information, or are you collecting information with the intent of influencing a programme of action? Oh, and maybe don’t try arguing that because you haven’t complied with a duty, the duty didn’t exist. It’s unlikely to go down well…


EDIT: We have subsequently become aware that the DWP are seeking permission to appeal this judgment- so it may not quite be over yet!

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