One of the most important legal cases of the past year, possibly even the past couple of years, was the Binder case, a challenge to the Government’s exercise on the new National Disability Strategy on the grounds that it had not been, as the Government claimed, an ‘engagement’ exercise, but rather a ‘consultation’, which brought it under the law of consultation and thus rendered it unlawful under Gunning 2. The claimants won on that ground, but lost on their secondary challenge, which had been brought on equalities grounds, largely that no account had been taken of the needs of potentially disabled respondents.

In rejecting the challenge Mr Justice Griffiths said:

“It was in the nature of the Survey that it was designed to address the needs of disabled people. The evidence shows that it was designed so that disabled people could and would respond to it on at least equal terms with the general public. The fact of the Survey, the content of the Survey, and the way in which it was publicised and administered paid due regard, in my judgment, to the need to eliminate discrimination, advance equality, remove or minimise disadvantages suffered by disabled people and meet their needs.”

He went on further to explain that there were multiple options for submitting responses, including offline ones, before concluding that there had been no breach of the law. In the post-covid world, after a period where much normal interaction was forced online, the idea of the digital divide, or a digital gap has come under enhanced scrutiny as people try to grapple with an ever more online world, where not everyone has the skills to take advantage.

The question of design is a very interesting one. How do we go about designing accessible and user-friendly interfaces between public bodies and the public? We’ve written previously about the importance of a good user experience and the potential perils of putting registrations and other barriers between consultor and consultee. Whilst the Binder judgment was primarily concerned with direct equalities user experience, there is another design consideration which falls outside (though can often be contributed to by) the usual equalities considerations. This is the digital skills gap.

This week, the Guardian reports that a group of charities, the Digital Poverty Alliance has called for the regulation of the design of online services essential to everyday tasks, in order to ensure access for anyone who needs them, no matter their level of digital ability. It is in principle a good idea, enabling access to vital services for all who need them is a critical thing. It’s a similar consideration to the ones we frequently encounter in consultation- how can we ensure that everyone who wants to respond, no matter their personal circumstances, can do so?

The regulatory route being pitched by the charities is one option, though we fear one unlikely to find much favour in government. Regulation of design at such a micro- level might seem a tad excessive, particularly when regulation of design at a macro-level in planning etc proves problematic. A softer form of guidance might be more advisable, though what precise form this should take is another matter. Statutory guidance might still generate legal obligations by way of the common law, so is likely to be rejected.

In the past, we’ve favoured codes of practice and similar frameworks as a method of achieving parity and high standards in distinct elements of consultation. These tend to work best when dealing with issues that are general enough to require a set of principles, but not specific enough to require specific things to be taken into account. We’re currently in the process of redoing our codes of practice on social media and online consultation, both great examples of places where these sorts of exercises can be really useful. Establishing general light-touch ‘rules’ for how we utilise these methods is useful, and for anything specific, a more bespoke approach should be taken.

It’s here that the idea of codes of practice with regard to design might start running into problems. Whilst a very general framework would be relatively easy to arrive at, taking account of all the manifold relevant considerations for the wide variety of concerns and needs sufficiently to make it actually useful beyond simplistic and obvious statements already known to all might be significantly more difficult. So what are our options? Attempt to provide some sort of code for everything that might come up? That would be a lot of work (though this doesn’t necessarily mean it shouldn’t be examined). Group together needs according to the most common features? Here we come up against the monolithism that we have increasingly criticised in recent years. Perhaps deal with them as each arises? Again, likely to require an industrial-level of work.

Two separate, but often connected issues. Equalities concerns, and the digital skills gap. So how do we bridge them? In an ideal world, we give the specifically identified and appropriate support to those who need it directly. If someone doesn’t have access to the technology to respond, we give them access to it. If someone needs help filling out a form to respond to a consultation, we provide them with that, to make sure that they can participate to the fullest extent they want to. With public authorities often been cash-strapped however, this is a serious challenge.

Perhaps it’s time for some novel thinking, some new ideas? ON 12^th July in our Perfect Blend session we’ll be discussing the place of traditional methods in the ‘new world’ of consultation, and we have no doubt there’ll be a lot of talk about blending the old with the new, to achieve within reasonable budgets and proportionate work levels the bespoke help and access to those who might be less au fait with technology might need. We hope you’ll bring along some of your own ideas on how we can go beyond the code of practice.

On Tuesday 12th July from 10am-10:30am, we’ll be hosting our members exclusive coffee morning, The Perfect Blend, discussing “Traditional Methods in the Digital Age“.

Are you returning to more traditional, face-to-face methods, and if so, which techniques are you using? Have you noticed an uptake in face-to-face engagement?

Let’s chat about it! Sign up for the event here.