How much legal knowledge do consultation professionals need?
In the week we announce the Institute’s Law of Consultation Online, it is a good time to consider how much of this do engagement and consultation people really need.
After all, fifteen years ago, hardly anyone doing the day-to-day job in public bodies needed to know much. In-house legal teams were available if anyone raised a point of law and the prospect of anyone mounting a legal challenge was pretty remote.
We think the game-changer was the 2007 case where Greenpeace won a judicial review of plans for new nuclear power stations. It was following that judgment that the Institute held its first ever seminar on the Law of Consultation – at the English Speaking Union in London. We have members who still remember that occasion. It was a sell-out!
Then three things happened:
- The success of Greenpeace galvanised other environmental pressure groups into recognising that consultation was a weak part of Government decision-making. Hard on its heels, the 2008 Planning Act provided for far more structured and demanding standards for engagement and consultation for infrastructure projects.
- The 2010 Equality Act consolidated previous anti-discrimination laws and was followed by the Coalition Government’s austerity programme. Cuts in services from libraries to care homes could now be challenged on the grounds that decision-makers (and the relevant consultations that preceeded them) took inadequate account of the impacts of proposed actions.
- In 2014, the first ever consultation case to go to the Supreme Court (Moseley v LB of Haringey) raised the bar for everyone and provided further encouragement to anyone who felt the scope of consultations – and the information provided – should have been wider.
By 2015, it became almost impossible for anyone preparing a consultation of any real significance to be sure that it might not be challenged. Crowdfunding helped campaigners pay the high costs of Court action. A steady stream of judgments nudged the law further towards consultees – making life ever more demanding for public bodies and others under pressure to achieve change in a hurry. Nowhere is this more striking than in the NHS, where there have been dozens of threatened legal challenges – only a few of which have made it to Court. Where they have, it has often been difficult to predict the outcome.
But how much do consultation staff need to know. And to what extent should they bow to the know-how of the legal profession?
High demand for our courses provides one clear answer. Over 1000 Institute members and supporters have attended about 70 courses mounted every couple of months since 2012. We have tailored the content to suit particular sectors, as in Health, Planning, Transport or Local Government. Some Councils or NHS Trusts/CCGs have booked in-house courses in order to focus on the impact of the legal principles upon their own environment or circumstances. There have been special courses for Wales, Scotland and Northern Ireland. So we know that the brightest and best of our profession regard this knowledge as useful.
But the deeper reason is that consultation is no longer a mystery. The mechanics of running a consultation are well-known (or they were until Covid-19 and we are all facing a re-think.) There are well over 10,000 people for whom running public consultations is a key part of their jobs. The hard part has become designing and implementing the pre-consultation tasks, including options development, the preparation of foolproof narratives and ensuring that voices (including the seldom heard and seldom online) are properly considered.
There are far more people employed in ‘Communications’ functions. They should also be interested in the legalities of public engagement. But – with the exception of defamation, there are not many occasions where an oversight can lead to Court actions. Consultation is different. Where controversy rages, there are many pitfalls lying in wait for the unwary. Chances are that even the most brilliant in-house legal advisers – unless they are really specialists – will be au fait with all of these. They will certainly be helpful on the day you receive a letter before action, but by then it may be too late. When you need the knowledge is when you sit down to plan a consultation, when you talk it through with the issue-owners (who are often prone to pre-determination) and when conducting the analysis and presenting to decision-makers.
By now, there is scarcely a single aspect of running consultations that has not been considered by a Court somewhere because disappointed consultees felt they had been treated unfairly in the exercise. There is, therefore, a wealth of knowledge to be gleaned from the 200-odd judgments that the Institute has studied in recent years. Naturally we think our members do a better job if they have a sound understanding of the rules, and obviously we would like to promote the new course. Partly, it is because we think the online offering can offer something really valuable – time. Our traditional course is a comprehensive but rapid review of about 48 legal cases. The new online case covers almost 40% more cases, but is self-paced.
We welcome views as to ‘how much law’ is useful for our members and others. Let’s start a debate.