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Sins of Omission

If consultation was not undertaken – how to retrieve the situation.

When coronavirus sent Whitehall – and everywhere else – into a flat spin, Government responded with a flurry of administrative and legislative actions, and clearly took quick decisions which, at other times would have involved various amounts of consultation. Inevitably, some of these have been challenged in the Courts, and in recent days there have been two relevant cases. Both were won by the Secretary of State for Education.

In the first case, the children’s rights charity Article 39 argued that Regulations introduced during the pandemic to relax children’s safeguarding requirements through local authorities were unlawful because they had not been properly consulted upon. A total of 65 relaxations were made, many of which Article 39 claimed had potentially serious consequences for looked-after children. There HAD been consultation – albeit, informal and confidential. Selected local authorities, Ofsted and other internal stakeholders had been consulted. The Children’s Commissioner, had, however merely been ‘told’; all the well-known children’s rights bodies were wholly excluded from the dialogue. Was this sufficient? In the event Mrs Justice Lieven decided it was lawful, but merely because of the extreme circumstances. She went as far as to rule that “In anything less than a national crisis of quite such urgency I would have been minded to find that the consultation was not lawful if the Commissioner was not consulted.”


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About the Author

Rhion Jones is considered a leading authority on Public Engagement and Consultation. A founding Director of the Consultation Institute, he is co-author of “The Art of Consultation” (2009) and “The Politics of Consultation” (2018). He has delivered over 500 training courses and Masterclasses and is a prolific writer on the subject, having written over 350 different Topic papers and over 50 full Briefing Papers for the Institute. Since 2003 over 15,000 person-days of training based on courses he invented have been delivered. Rhion is in demand as an entertaining Keynote Speaker and Special Adviser, particularly on the Law of Consultation, and its implications for Government and other Public Bodies. In 2017, he was awarded the ‘Lifetime Achievement Award’.

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