With many distracted by #PartyGate, it’s been largely unreported that the UK Government lost an important case in the High Court on the 25 January this year, which ruled that its National Disability was unlawful because of flaws in the public consultation.
As a result, this ruling has some important implications for people involved in changing public services and making public policy.
Essentially, the Government promised in 2019 to come up with a new National Disability Strategy, and as part of the process, they undertook a “listening exercise” to inform their plans; unfortunately for the Government, not everyone was happy with this process.
The claimants argued in court that this was not a listening exercise but a public consultation, and the government had failed to provide sufficient information on the proposed Strategy to allow for meaningful response.
In veritable “Yes, Minister” fashion, the government said that it wasn’t a consultation and the fact that they had done a bad job, had it been a consultation, was proof that it was a mere listening exercise. Confused? Probably. The Consultation Institute has done us all a favour by writing a useful summary of the judgment, but in layperson’s terms, it boils down to this:
The Government held a listening exercise on the National Disability Strategy using an online survey, Upset by this method of engagement, the claimants argued it was in fact a consultation and the survey on its own was not enough to make it a lawful consultation; or more precisely that the Secretary of State had failed to provide sufficient information on the proposed Strategy to allow for meaningful response.
The Government argued that it was never intended to be a consultation, so it did not need to do anything more to make it a robust one.
The claimants won with the Court holding that it was a consultation which was not good enough and therefore unlawful, citing the following:
“The Court further held that the Survey was presented ‘as being a way in which the Strategy could be shaped, would be shaped and (eventually) was shaped, but the information provided made that impossible’. This was because the Survey did not include any specific proposals for inclusion in the Strategy on which disabled people could comment, and the multiple-choice format and limited free-form responses did not allow for a proper response even to the issues that the Survey did try to canvass. The Claimants were therefore unable to give the ‘intelligent consideration and response’ required of a fair and lawful consultation.” 25 January 2022
What is important for people working in local authorities, who are involved in managing service change and developing policy, is some of the detail of the ruling.
The survey on its own was not enough to make the consultation lawful because consultees needed to be given further information to give the Secretary of State’s proposals intelligent consideration.
Further to this, the information provided with or in the survey to participants made it impossible for their contributions to shape the strategy, and the multiple-choice format and limited free-form responses did not allow for a proper response even to the issues that the survey did ask about. The judge ruled that the claimants were therefore unable to give the ‘intelligent consideration and response’ required of a fair and lawful consultation.
Overall, just because you call something a listening exercise, or a big conversation, doesn’t mean that it is not really a consultation in disguise, and you don’t have to abide by fairness and good practice.
Relying exclusively on an online survey for a listening exercise, especially when you are encouraging a conversation and want to hear about people’s lived experiences, is likely to upset people and invite a legal challenge.
These are likely to be people with a high stake in the outcome, who want to express their opinion, discuss their challenges, and feel that they have been heard on the issues that matter to them and the people they care for. Surveys on their own are not going to create this feeling of genuine participation so in many circumstances need to be supplemented with other methods.
These days there are some far more dynamic alternatives, which are far more engaging than providing a solitary online survey. By using platforms such as Granicus’ EngagementHQ, we can do much more to improve the participant’s experience. For example, we can supplement a survey with online discussion forums, the ideas tool, storytelling etc. It is plausible to conclude that Government could have avoided any challenge at all had they provided these more engaging online tools, designed for genuine listening in addition to their survey.
Any listening exercise, public consultation or big conversation relying on a survey on its own must be supplemented with additional information or what we sometimes call learning resources. It’s preferable to use a platform that uses information widgets which not only allow people to give policy proposals intelligent consideration (via document and video libraries, for example) but also look after participants by giving them important information like key dates, important events, timescales and contact details.
The very nature of surveys may not allow for a proper response to the issues that a survey may ask about. Therefore, participants may be unable to give the ‘intelligent consideration and response’ required of a fair and lawful consultation.
As a consequence of this ruling, alternative methods like online forums, ideas boards, story sharing, and question and answer tools should always be provided too.
