Susan Ritchie, Director of MutualGain and an Associate at the Consultation Institute, writes her latest blog about the recent Consultation Institute Conference. A useful read for all working in organisations who go to consultation, or those active citizens who might wish to challenge a decision made!

I attended the annual conference for the Consultation Institute last month: a place where consultation professionals and those working within that field come together to share their practice and learn more about the current shifting landscape of consultation. The topic for this year was Public Engagement in The Post-Truth Age. It was excellent for a number of reasons:

1. Well organised, good hospitality, and flowed well, courtesy of the great team involved in making it happen!
2. I was able to catch up with many clients who feel more like friends who I haven’t seen for a while; and
3. The great workshop that Lawyer Rosa Curling ran on the Law of Consultation (with specific reference to Councils and Health).

Whilst all of the above could be the topic of separate blogs, it is number three that I am writing about today.

You can learn more about Rosa Curling from the web so I won’t spend time here – suffice to say that she is a Judicial Review lawyer with a background in Anthropology and Human Rights. I think the anthropology and human rights bits are important for some reason – maybe because I tend to view the legal profession with a healthy cynicism? Rosa displays none of the characteristics that draw out that cynicism though so I suspect it is because of her interest in anthropology and human rights that I started off by liking her, but I have no idea if my instinct was accurate. See what you think…

Rosa comes across as a genuinely passionate citizen wanting to help other passionate citizens get involved in meaningful public decision making. Where they are unable to influence she helps to hold those public bodies to account.

Here are a few points that I thought I would share from the session just in case you are embarking on a consultation, or participating in one, and this is a new area to you:

Firstly, the Gunning Principles are extremely important! They should underpin any consideration of whether to challenge a public decision. Be mindful that you cannot challenge the decision itself, just the process. So here are the principles:

• Consultation must be at a time when proposals are still at a formative stage; that means when people can actually influence – not when you have made your mind up!

• The proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response; so don’t think that just because you think it is a great idea, others will! You need to provide a range of perspectives to enable people to understand what is often unwritten! Integrity is important here (a key principle of consultation as set out by The Consultation Institute) – imagine ending up in court only to have to admit that you knew of an alternative perspective but chose not to include it? Public servants must remember the service part of their role and the neutrality that is required of them

• Adequate time must be given for consideration and response; some of the consultation documents I come across require a full day of reading or more, and still further research to understand what it is that is being proposed! Or indeed what is not being said! Easy Reads can often miss out the detail (and the devilish nature of that). Citizens and professional stakeholders have to have time to consider what the implications might be for them and others in the community. We used to say 12 weeks for a consultation which is a good time so long as all the information is out there on week one! The Consultation Institute is developing a quality assurance process for those organisations who don’t have 12 weeks to consult – so watch this space for more information.
• The product of consultation must be conscientiously taken into account in finalising any statutory proposals. Don’t consult and leave the findings in a box on the office floor – that is what happened on many occasions when I was in local government: it is not only a waste of precious resources but an insult to those who you are serving in the relevant sector. If you genuinely want to know what people think – then you must genuinely consider what they say. Again, integrity is essential, as is transparency and the other principles that the Consultation Institute set out. If you are being ‘quality assured’ you will be required to demonstrate (in some detail) how those findings have influenced your decision.

If you are embarking on a change programme and think that you need to ‘get your ducks in a row’ before going out to the public, think again! Pre consultation engagement is imperative to help you tap into the resources, ideas, capacity and ability of a wider set of people. Not only will they help you with possible shared solutions, they will also tap into a wide range of perspectives that can help you develop more creative scenarios and options for a future, transformed service.

At MutualGain we specialise in a variety of techniques that can enable you to have conversations that you haven’t had before, whether that is by using our Commissioning Cubes, or starting a conversation using a World Café, or a longer relationship building based on Appreciative Inquiry, Participatory Budgeting and community coaching.

If you are a citizen interested in the way that your local NHS is reconfiguring services and you don’t like what a public body is doing in terms of public decision making processes, it is best to start a conversation with them as early as possible and see if you can help them to do it better – maybe you have some good ideas or some useful information which seems to be missing from documents that they have published? Find a way to work collaboratively with them – we can support that in our community coaching programmes.

If that doesn’t work contact the Overview and Scrutiny panel that is overseeing and scrutinising the work: see if you can influence them: they are elected to represent the public voice.

If you have tried to influence but are met with blank faces or closed doors there is the IRP process for health consultations. There are two grounds to refer to the IRP:

1. The consultation process is not conducted properly
2. The decisions are not in the health interests of the community

I have come across so many consultations that pitch their case in the consultation document as though there was no other possible way change could happen. With NHS services it is always the safety argument that people think will swing it with the community, but I liked Rosa’s input on this: If your organisation/partnership has taken decisions that have left a ward/hospital vulnerable and now you need to close it, the safety/risk argument will not hold with the judiciary! An example of what falls within ground number two would be if there was an epidemic of swine flu and no staff turned up to work – therefore the ward/organisation had to close. So think carefully guys when assuming your safety arguments will convince the public and enable you to get your ideas through.

Just in case you didn’t know, you can also JR (Judicial Review) the IRP too! Speak to a lawyer though because timing is crucial. The claimant has a duty to challenge promptly. If your challenge is on the consultation document then don’t wait for the process to be completed – you may be out of time because the consultation process will not make the document better! If the document is ok a challenge can be made on process – that should happen within weeks of the decision, but the outside limit is three months. If your O & S refuse to refer, they can be challenged too.

But what I didn’t know was that you can also challenge a failure to make a decision! Hmmm….

The most successful challenges use equality law so make sure you are familiar with that too – again, the Institute offer training on that.

Rosa’s tip for those writing consultation documents are:
• Don’t oversell your case – explain it and include the adverse impacts.
• Make sure that you understand the impact on those who have protected characteristics and any further equality implications, and
• Don’t assume that if you have outsourced a contract that you are free from the obligations outlined above!

The next area for courts to shape law will be in the definition of a public body – if they perform a public function they will be subject to the same high expectations that current statutory bodies are. Devolving your risk around this when outsourcing will require you to be clear about the responsibilities too.

If any of this chimes with you and you want more information, please get in touch:
• Law of Consultation 
• Equalities Essentials 
• Commissioning Cubes 
• Appreciative inquiry 
• Participatory budgeting
• Community coaching
• Want a full qualification in Building Social Capital through Community Engagement? 

Get in touch by emailing me at susan@mutualgain.org