Guidance on Guidance
How much attention should we give to consultation guidance?
In the ideal world, consultation happens when those about to take decisions or adopt policies recognise the value of listening to others’ views before proceeding. In the real world, consultation often arises because a body of superior authority has ruled that it is necessary.
Sometimes it is fully spelt out in primary legislation, though the different wording of statutes over the years have led to interesting interpretations in the Courts. This paper looks at those occasions where consultation – or the rules by which they are conducted – are prescribed in various types of Guidance.
There is a difference, and those whose roles are to organise consultations need to be very aware of the implications. Firstly, Guidance may well be issued by the parent organisations who will regard conformance as a management requirement. Your Chief Executive wins a few marks if he or she takes a cavalier approach to which Guidance to follow and which to ignore. Secondly, Guidance can remove uncertainty by laying down sector-specific rules as to how to run a consultation – who or how to engage, for how long, and with what terms or reference. Clear, consistent guidance may help; over-complex, confusing instructions do the opposite. Finally, Guidance influences expectations. Not just for consultors and consultees, but can be a factor in any judicial reviews where Courts are called upon to rule upon the legality of the exercise.