Over the last 10 years there have been several legal cases challenging the consideration of options by public bodies.

In R (ex parte Bokrosova) v London Borough of Lambeth, the Council became concerned that three options could not be funded and eventually withdrew the unaffordable options whilst the consultation was still live.

In R (ex parte The Royal Brompton Hospital) v The Joint Committee of PCTs, the case looked at the option development process and whether the information gathered had misled consultees. In 2011 the consultation was found to be unlawful. On appeal in 2012 this decision was reversed.

In the recent case R (ex parte Sefton Metropolitan Borough Council) v Highways England, campaigners felt excluding the expensive tunnel option was an indication of pre-determination. The judge ruled against this claim.

How then can we demonstrate to those that wish to challenge decisions, that the options chosen to take forward into a consultation are the right options? Here are a couple of solutions…

TERMINOLOGY: Avoid using the word ‘option’ until you are absolutely certain it will be taken forward into the consultation. There will always be a longer list of scenarios/proposals. Once these have gone through the development/appraisal process the list will be shortened. From the outset, help people who aren’t involved in these exercises to understand the process by explaining the difference.

TRANSPARENCY: Define the threshold. Let people know at what point a solution becomes a formal option and share this. Once a label is attached to a scenario it sticks, and trying to explain to stakeholders why this is no longer an option can come with a flurry of questions: ‘who decided this?’… ‘for what reason?’… ‘why now?’ This can reflect negatively despite your best efforts to evidence you’re involving people to influence a decision.

INVOLVEMENT: Especially for controversial scenarios, make sure you are confident you have involved the right people in the options development/process. You may have statutory requirements or guidance to involve specific people. Or you may have identified, through good quality stakeholder mapping, that certain groups should be involved. Don’t discourage the sharing of new options; provide every facility to explore and test them.

In most cases, the right option for a campaigner may not be the same as that for the decision maker. And in many ways, it is less about the right option and more about following the right process. If you have conducted your appraisal process in the right way and you are confident that you have provided ample opportunity to influence up to this point, then you’re ready for consultation. If this process has been closed off, re-think, re-evaluate and repeat this process to avoid getting into trouble.

We recently broadcasted a webinar on options appraisal for Institute Members, which can be found in your Members area. If you’re unsure if your current options appraisal process is of a best practice standard, get in touch.