Is consultation a ‘self-correcting’ process?

For those of you that have been involved in running a public consultation you may be aware that it is not very fault-tolerant. Even with the best planned exercise and excellent execution, things can still go wrong. Providing solutions for the growing needs of a modern population combined with tighter budgets for spending, means tough decisions over what cuts should be made where are inevitable and someone, somewhere, will be at a disadvantage. You can’t please everyone. Add local politics to the mix and you may find yourself paddling hard to keep your consultation exercise above the water.

Yes, the bar for excellent public consultation has been raised, but the case for making your consultation excellent is also strong. One of the methods used by objectors or campaigners is to apply to the Courts for a judicial review. The public, and lawyers, have become smarter at identifying and understanding where there may be scope to explore and exploit failings in your consultation process…and you can rest assure that they will notify you about it!

The discussion around process is one we have in almost every conversation with tCI clients. Whilst you may almost certainly need to manage your elected members and maintain good relationships with local constituents, it is a failing in the process which can get you into Court.

The Courts recognise that consultation should be a “process that is capable of being self-correcting” (R ex parte The Royal Brompton Hospital v The Joint Committee of PCTs [2012]). But is it really ‘self-correcting’ or do we have to correct it ourselves?

If “self-correcting” was taken literally, many consultors would probably fall over themselves laughing. The Institute would argue that it is the responsibility of consultors to steer the consultation in the right direction and adapt if needs be. This is probably what the Courts meant. A well conducted public consultation is not easy. Particularly if it is controversial. Forgetting to plan a public meeting in a certain parish or failing to provide a readily available paper version of your consultation document at a particular library, may damage your credibility but would rarely be the cause of a judicial review.

A smart consultor should be well-prepared and ready to step in and deal with changes to correct the process. After all, public consultation is a fluid process that should allow for opinions to be heard, decisions to be influenced, mistakes to be made and more importantly, rectified. If consultees, the media or the public think they are not being consulted properly, chances are they will scream and shout. This gives consultors the opportunity to make changes – run more events or clarify the questionnaire.

In that case, it might be “self-correcting” and if you don’t, the Courts may do it for you.

About the Author

Rebecca is the Institute’s Client Executive. She has experience in a legal environment working within the family law department. She studied Politics at Leeds university and took a key in interest in public engagement. Her role provides the Institute with knowledge and up to date case law for the benefit of clients. She has spent time working abroad and with international charities.
Outside of work, Rebecca enjoys travelling and chasing the sunshine, cooking, shopping and spending time with her family.

Read more about Rebecca

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