UK: A Review Of The Significance Of Consultation

This article was originally published in the Procurement and Outsourcing Journal.

Consultation continues to grow in importance. Whether it is government looking for feedback and input into policy, proposals for local development or changes to service provision, the role of the citizen now includes being consulted.

There is an increasing expectation by citizens that they will be consulted on a range of issues. Participation rates though often remain low. Alternatively, a consultation on a controversial national issue can become a game of numbers as supporters and opponents try to make more submissions and get more petitions than the other side – an attempt to turn consultation into a vote.

National consultations

The government has revised its own 'code of practice' on consultation and there is now a set of 'consultation principles'. These principles change many of the more onerous requirements. Instead of public consultations lasting a minimum of 12 weeks as a default, the government has introduced a more flexible approach such that consultations could last as little as two weeks. In some cases no consultation is required at all. The scope and timing of consultations largely come down to the government department leading it. They need to consider how complex the issue is as well as the capacity of those being consulted to respond, although the code does not set these out in any detail anywhere. In terms of feedback and ongoing engagement, the principles merely state:

"Departments should make clear at least in broad terms how they have taken previous feedback into consideration, and what future plans (if any) they may have for engagement."

While the new approach is much less prescriptive and reduces the burden on government departments, it is all quite vague. This makes stakeholder expectations unclear and it is increasingly difficult to judge how departments will, or even if, they will consult on an issue.

This year, as in other years, government has rushed out a number of policy announcements and consultations before the summer Parliamentary Recess starts. This leaves organisations with the summer to consider and respond to a number of consultations. There is no requirement on government departments to consider whether there is any cumulative impact on respondees so the time and resources involved can be enormous.

All this is doing little to bring any confidence about how the government consults stakeholders.

Local consultations

Whilst introducing a more flexible approach for their own engagement, government has made consultation at a local level, particularly for development projects, ever more strident and rigorous.

There are also requirements on service providers to consult users and communities on the scope and design of local provision, health services being the most obvious example. The local government and public involvement in Health Act 2007 and National Health Service Act 2006 fundamentally changed the requirements on the National Health Service to engage with the public.

The moves towards more consultation on development projects are not new. The Planning and Compulsory Purchase Act 2004 started to change the landscape with the introduction of the Statements of Community Involvement for local authorities as regards development plans. Developers have long understood that engagement with a local community can help in the planning process, and local planning authorities have seen it as best practice and we are witnessing a shift towards statutory pre-application consultation.

The Planning Act 2008 made pre- application consultation an obligation for major infrastructure projects and the Localism Act 2011 is extending it still further. The Localism Act 2011 includes a requirement for developers to consult with local communities before putting in a planning application for big schemes, although it is not yet in force. Furthermore the developers will have to show what changes they have made to the scheme as a result of the consultation. This marks a shift for developers and alters the way in which schemes are planned and, importantly, costed.

Consequences

Legal challenges to consultation are increasingly commonplace. Each judgment can offer some valuable lessons for those undertaking consultations at a national or local level. The use of legal options are as much a part of effective campaigning nowadays as any other tactic and the mere spectre of legal actions can help in discussions and negotiations.

The challenges often centre on issues of process but can also go to the very heart of the consultation itself – what is being consulted on, what information is provided and what options/choices have those being consulted been given.

When the relevant provisions of the Localism Act 2011 come into force then there will be a real danger of challenge over failures in the pre-application consultation. Developers are going to need to be able to demonstrate that, at every stage, they have engaged properly with the local community.

To date, however, consultation is often considered to be lacking in quality and scope. ComRes, the leading market research and polling consultancy, conducted a poll on Councillors' attitudes towards local planning consultations and found that 73% thought that the silent majority is often overlooked in favour of the more vocal minority. Similarly, 78% believed that public consultations only capture the opinions of the most vocal people and 62% believed that local planning consultations lacked robust evidence of public opinion. Fortunately, 73% disagreed with the proposition that councillors found it difficult to know with confidence the views of their constituents regarding new developments. 56% of councillors are also more likely to be swayed by the opinion of constituents than local or national planning policy.

The localisation of decisions on development has most recently been highlighted with the issuing of new guidance, in June 2013, for onshore wind farm consultation which puts pre-application consultation at the heart of applications. According to the Secretary of State for Communities and Local Government, Eric Pickles MP:

"We want to give local communities a greater say on planning."

Supporters of this approach also believe that the same should apply to applications for shale gas developments. The government wants to show that planning is locally-led and, importantly, 'the need for renewable energy does not automatically override environmental protections and the planning concerns of local communities'.

Implications

For those looking to undertake a local consultation, as well as a myriad of advice and guidance being available, the government as part of the changes for onshore wind farms, has promised best practice guidance from DECC (the Department of Energy and Climate Change) and a register to monitor best practice.

There is also guidance on pre-application consultation under the Planning Act 2008 available as well the various judgments from legal challenges. There are some significant lessons from the Planning Act 2008, not least that often several rounds of consultation are required to help the community make a meaningful contribution and that this, in turn, needs to be factored into the project timetable. The issues of the options being consulted on and the level of information provided about all the options (potentially even the ones not being consulted on) continue to be at the heart of complaints about consultation.

Considering all this leads to some recommendations on how local consultation should be approached.

• Stakeholders – take time to consider the range of people and groups to be consulted, for instance the geographical area covered and do not be afraid to work with others in establishing this from the outset.Timings – a critical factor is allowing sufficient time for communities to input and demonstrate that this feedback has been considered and acted up.
• Feedback mechanisms – particularly with the Localism Act 2011, developers need to show how community feedback has been used to change the proposals on offer. As part of a proper consultation process there has to be adequate feedback mechanisms to the community as well. This is especially important if there is more than one round of consultation.
• Outreach – only if the consultation is able to reach all parts of the community will the feedback be encompassing. Genuine efforts need to be made to reach all parts of the community.

For anyone involved in a consultation, there is a need to keep excellent records, and to track all comments and feedback, ideally in a specialist database/CRM system. As consultation becomes a 'process' there is a need to be able to prove that at every step sufficient efforts were made. It is not enough to say what was done, a developer or government, needs to have the paper trail in place to be able to prove it.

Considering it the other way around, consultation is of a poor quality if:

• a lack of options are provided;
• there is considered to be pre-determination of the outcome;
• there is a lack of information and/or it is badly conveyed;
• no feedback is provided;there are a lack of ways to get involved; or
• it is a one-off process.

It is important not to consider consultation as 'box-ticking' exercise or more 'red tape'. Instead, consultation can bring huge benefits to a scheme or in the development of a new policy. Better considered schemes can show up weaknesses and potentially save money.

Overall

In all the proposed and ongoing reform of consultation there remains an unresolved issue of expectations. Local communities in particular feel detached from planning decisions and it remains to be seen if the moves regarding onshore wind farms will help. However, once the idea takes root then it will become accepted and expected best practice across industries and sectors.

In the same way that the pre-application consultation measures of the Planning Act 2008 are becoming more widespread through the Localism Act 2011, and in turn for onshore windfarms, then developers should expect them to extend still further.

However, if a lack of belief in consultation remains then that affects the numbers of people that get involved and are prepared to spend the time and effort required. This, in turn, impacts on the quality of the decision or its level of public acceptability. For developers, the quality of the consultation may not reflect itself in levels of participation which could be levelled against them.

For government, there is undoubtedly difficulty. The more that it expands and specifies consultation at a local level, the poorer quality its own efforts to consult will appear.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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