How to respond to a consultation

Over the last fourteen years I have both run and responded to a large number of public consultations covering everything from how annual meetings for a Quango should be organised to the closure of fire stations. Public consultation is a much misunderstood thing — misunderstood as often by the people running it as those responding to it. In some cases there is really very little choice, and those running the consultation may be as miserable about the whole business as those responding to it. In other cases the options are wide open, and effective responses can have a powerful impact on the outcome.

When there really is a choice still to be made, you can dramatically increase your chances of successfully influencing the course of events by understanding what consultation is for, and by submitting a response which the analyst writing the consultation report will find persuasive.

What consultation isn’t and is

A consultation is not in any sense a referendum or popularity contest. At no point is anyone obliged to listen to what consultees say. This means that what you say, and the way you say it, is all important.

The Cabinet Office sets out a code of conduct on good consultation practice, which applies across the UK’s public sector, here Code of practice on consultation (PDF, 223KB). Most areas also have a locally agreed Compact, which is an agreement between government and the voluntary and community sector. Particular parts of the public sector have a legislative duty to consult, most notably the NHS, and the duty is set out for the NHS in NHS Act 2006, modified by section 234 of the Local Government and Public Involvement in Health Act 2007. These together replace the earlier Section 11 of the Health and Social Care Act 2001. People still refer to the NHS statutory consultation as ‘Section 11 Consultation’. The act, as modified, is here: National Health Service Act 2006. Many charities and some businesses also use consultation as a mode of engaging with stakeholders and pre-flight-checking future plans.

Ultimately, consultation means exactly what the word suggests: it is the consulting body asking for advice from a wider group. As with any advice, that body can choose what it does with the advice, although failure to pay attention when a substantive issue has been pointed out could leave a public sector body liable to judicial review, or a private sector body liable to pursuit in the courts.

Why bodies consult

Bodies consult for a wide variety of reasons, some benign, some less so. In many cases there is some kind of loophole which allows a body to avoid consulting, so, even when a body has a legal duty to consult, it’s best to assume they are consulting because they have decided to. In some organisations there is tension between those who prefer to consult as early and as often as possible, and those who avoid consultation as much as possible.

Top ten reasons for consultation

These, in order of ‘how good they are’, are the main reasons why organisations consult, in my experience. I have no statistical validation for this, but, equally, I don’t see any particularly useful way of getting this information.

  1. It’s the law. Most organisations will consult if they believe they have a legal duty to do so. But the law is not static, and what an organisation sees as ‘the law’ depends a lot on the legal advice they are being given.
  2. It’s best practice. Especially under the last government, the notion of ‘best practice’ was very powerful in the public sector, and to a lesser extent among charities.
  3. It gives a better result. Wise organisations know that the expertise among the general public is greater than the expertise in the organisation, and a lot cheaper than hiring consultants.
  4. It shares the responsibility (and the blame). It’s very rare for an organisation to be able to predict entirely the consequences of its decisions. As well as hopefully making a better decision, consultation allows an organisation to spread the responsibility for what it does.
  5. It can mean less consultation later. An organisation which consults early on its overall strategy may not have to consult later on how it puts that strategy into practice, or, if it does, can build on the earlier consultation. This can be both a good and a bad thing. Often the real decisions are made near the start, and giving people a chance to influence them early means an organisation benefits from the best advice at the time it counts most. On the other hand, most members of the public are not necessarily aware of or interested in consultations on broad strategy, which may mean that there is little public involvement until the moment at which there are very few choices left.
  6. Times have changed. Unexpected budget cuts or other pressures can leave an organisation with choices it never expected to have to face. They may have to consult rapidly on how to save money.
  7. Internal dissent. Sometimes organisations consult the public because they cannot agree internally on what should happen. This can work sometimes, but, equally, the consultation can be completed and the internal dissent left unresolved. It can also mean that some of the options put forward are not genuinely feasible.
  8. Hidden agenda. Occasionally an organisation will consult on something with a view to doing something else. Generally speaking, the kind of people who like to consult are not the kind of people who like hidden agendas — but it does happen. This is not necessarily malign, and it doesn’t necessarily mean that genuine views won’t be taken seriously. For example, an organisation may be consulting the public as a condition of getting support from another stakeholder.
  9. Publicity. Especially for little known charities, a public consultation can be a good opportunity to publicise an issue. This is, again, not necessarily a bad thing, but you may be investing substantial amounts of time in something which results in no more than a press release for a pressure group.
  10. Pure process (no reason). Bureaucratic organisations may consult simply because it is the next step in a process. This can be good, in the sense that there are no preconceived notions and no hidden agendas, but it can be bad in the sense that the responses may simply end up in a filing cabinet.

The mechanics

Most consultations in the UK will be 12 weeks, though they can be shorter or longer based on special factors. Typically a consultation will have a consultation document which sets out what is being consulted on, why, methods of response, and the timescales. It should also give you links or references to where you can get more information, such as technical documentation. The consultation could offer a series of options, or it could be a paragraph by paragraph consultation on a policy or strategy, or it may be a consultation on just one option.

At the end of the consultation period, there will normally be some kind of council or board meeting at which a report on the consultation is received, a debate follows, and a decision is made. The report should honestly present the findings of the consultation, and set out any unresolved issues. Following the debate, a report of the entire process and the result should be published. In a well run consultation, those who have sent in responses with their contact details should be notified in some way of the results.

Some types of consultation are open to further layers of scrutiny, or there may be an overall ombudsman. If issues about the consultation process cannot be resolved, it is often possible to take the consulting body to judicial review, although a successful judicial review would typically result in a decision to rerun the consultation, and this may not affect the ultimate outcome. Judicial review is often threatened by protesters, but seldom enacted.

What influence can you have through responding to consultation?

Consider advice you have recently asked from someone else. Why did you ask for it? What did you do with it when you had it? And who did you ask? Someone running a consultation is in a similar position. Generally speaking, they will want the answers to three questions:

  1. What is acceptable?
  2. What is affordable?
  3. What is feasible and in line with the goals and duties of the organisation?

You are (of course) free to answer any way you want, but they will tend to categorise your various answers into those three groups. It’s tempting to focus on ‘what is acceptable’, and muster up as much public opposition as possible against something you don’t like. But this can be a distraction.

First, most people organising a consultation will spot it if you are running some kind of campaign. As they are trying to understand what is acceptable to the public as a whole, they will tend to discount campaign responses.

Second, there are not many issues on which there is just one opinion. While you may passionately believe that everyone is against something, and you may even find evidence of this while collecting a petition or doing door to door canvassing, very often there is also a body of opinion against you. If you politicise your issue, you may find that political parties choose opposite sides on principle.

Third, if you attempt to manipulate public opinion, or misrepresent it, and this becomes known, your campaign is essentially bankrupt. Of course, you would never consider manipulating public opinion or misrepresenting it. However, in the heat of a campaign, people who would otherwise never consider something of this kind have been known to take such steps.

You may be in a much stronger position if you decide to approach a consultation by looking at what is affordable and what is feasible. Normally the consulting organisation should have published all the details of why they are consulting and the technical background, though this probably won’t be in the main consultation document. If for some reason it is not published, a public sector body should normally release all background information under a Freedom of Information request. This can take up to thirty days, so it is best to apply for it early. However, before setting off on the Freedom of Information (FOI) path, a simple phone call to the consulting body will usually give you what you need, often with additional information which would not be in FOI released documents.

You can use the technical documents to scrutinise affordability of the various options, and also their feasibility.
You will always be in the strongest position of influence if you are able to propose a new option which is superior to those on the table.
This point is highly important. Ultimately, the person you most want to influence is the person who is writing the consultation report. This may be a named individual announced beforehand, and it may be handed to an external consultant after the consultation is completed who had not even been selected at the time you responded. Whichever it is (or some other variation), they are looking to report on solutions which are more acceptable, more affordable, and have better overall results than those originally proposed. If you are able to use the available data to do this, you stand a strong chance of having a major impact.
Equally, in order to present an alternative, superior, option, you may well need to compromise on what you really want. More exactly, you need to be able to separate what you really do want from what you originally said you wanted. For example, you may have adopted the rhetoric early on that you are campaigning against something ‘at all costs’. Aside from fundamental human rights, there are very few things that are worth campaigning for or against ‘at all costs’, though it’s easy to get carried away. Most public sector bodies have limited budgets. If you were genuinely able to force a public sector body to do something that cost it money, then that money would come at the cost of something else — quite possibly something you value more.
Even if you broadly agree with one of the options presented in a consultation document, your position supporting it is improved if you can demonstrate how the option itself could be improved.
Your only true influence is how you shape the thoughts of the person writing the report — write your response to suit.
At the end of the day, the discussion document which the Board, or Council, or whatever body makes the decision looks at is the report on the consultation. Unless there are just a couple of responses, they will not be looking at the consultation responses themselves. If the decision makers have been present at public meetings, this can also have an impact, though the direction that goes in may well be the opposite of what you might expect. An adversarial public meeting may freeze the decision makers and a campaign group into opposing camps which are hard to escape from. The kind of people who write these reports are professional, analytical people, who, either by training or natural inclination, like to sift evidence and weigh opposing views, thus coming to a nuanced position. Although it is highly tempting to write a rabble-rousing response and send it in — and copy it to the local newspaper — a detailed, analytical presentation which does not overstate its case is going to have far more impact on that kind of person.
Don’t overstate any part of your case, lest you discredit all of it
If your argument contains bold statements which can be checked, assume that they will be. If these turn out to be exaggerations, then an analyst is likely to consider the parts of your argument which cannot be checked to be exaggerated as well.
Avoid sending anonymous responses if you can
Although all consultations accept anonymous responses, you are actually decreasing your impact if you don’t include your contact details. The analyst is not likely to recognise your name, and, even if they do, is not allowed to exclude your response because they don’t like you. However, if they receive a number of similarly worded anonymous responses — similarly worded, perhaps, because you were all in the same public meeting — he or she may wonder if they are not simply the same person sending in a number of responses to bulk up an argument. In reviewing responses, analysts are supposed to weigh them rather than count them — that is, they are supposed to consider the strength of the arguments put forward rather than the number of responses — but an analyst seeing response after response arguing for a particular view is still bound to be impressed by it, unless he believes that these are really just the same obsessive person writing again and again.
Don’t play tricks
Like the staff at an Accident and Emergency unit, who have heard the same implausible excuses over and over again from people who believe they are the first, analysts on consultations have generally seen the fairly limited repertoire of ‘tricks’ used by pressure groups to skew the results of consultations, and are ready to discount them. Because a formal consultation has a legal status, you could in principle end up being pursued through the courts, though I have never heard of this actually happening.

Negotiating

If you represent a recognised stakeholder group, or if a new group appoints you as a spokesperson, you may be able to negotiate with representatives of the organisation which is doing the consulting. Their willingness to meet you is a very good sign. However, negotiation is a two-way process — if you agree an alternative with them (and be assured, they will not simply roll-over and abandon their plans), they will expect you to stick to it. A book called [amazon_link id=”1844131467″ target=”_blank” ]Getting to Yes[/amazon_link] is a helpful preparation for this kind of negotiation.

Yielding ground

Even if you are taking the hardest line in opposing what is proposed, you are usually best off yielding ground that cannot actually be defended. Early on, ‘facts’ may be stated in a public meeting which turn out to be unreliable later on. They may prove highly popular, and go down well in the press. However, the people making the decision at the end will know the facts from their perspective, and, unless you’ve managed to persuade them otherwise, they will stick with that perspective.

Attacking the consultation process

A popular approach to opposing a decision is to attack the consultation process. This is only worthwhile if there is a significant flaw which, uncorrected, would skew the results of the consultation. As with judicial review, the likely outcome if you were able to demonstrate that there was a flaw would be either restarting the consultation, extending it by a month, and/or reissuing the consultation document, or publicly correcting a mistake. The rhetoric of describing it as the ‘so-called consultation’ will likely prove very popular with a campaign group, but, unless there is a problem, it will simply distract campaigners from more useful work. If the consulting organisation is confident that the consultation is robust they will not stop it, and, if you take the ultimate sanction by going to judicial review, and the judge agrees, then you will have spent a very large amount of money and missed the opportunity to respond properly.

A consultation process could be flawed if:

  • The document is so technical that an ordinary member of the public could not be expected to understand it and no alternative version is available.
  • Insufficient steps were taken to inform the public that it is happening — but this is unlikely to ever be the case if a campaign group is working against it, since your own campaigning publicises it.
  • Key elements in the Code of practice on consultation have been ignored or bypassed.
  • There are errors of established fact which would materially affect the outcome. Note that this is established fact, not things that your group happens to disagree with
  • The mechanisms have been somehow skewed so that conflicting views will not be received — for example, an online questionnaire which only allows the answer ‘yes’ and not ‘no’ to a key question.
  • Insufficient time was allowed for the public to make its views known, for example if a shorter time period were used, or if a consultation were kept low key until shortly before the closing date
  • There has been some kind of impropriety, such as failure to declare an interest by the parties involved in preparing or running the consultation

In most cases these issues can be addressed by the body running the consultation during the process — there are very few process issues which could result in anything more significant than the consultation being rerun.

The bottom line on this is only attack the process if the process is worth attacking. If there is some serious error or genuine subterfuge which results in the public being misinformed and misled, then you should insist it is corrected. Otherwise (and afterwards, if you do secure a correction), it is better to stick to engaging with what the consultation is actually about.

Marches and Petitions

Marches and petitions are a good way to publicise your campaign among local people, but a poor way to influence the outcome of a consultation. Without interviewing every marcher, the organisers of the consultation have no way of knowing what the people believe they are marching for. They may have read the consultation document and have come to a reasoned view, or they may have been told that something entirely different is happening. Equally, there are very few marches which gather as much as 1% of an affected population. When you are standing in front of a sea of faces all shouting for whatever it is you want, it’s easy to believe that people power will make its mark. However, when an analyst writes in a consultation report “2,300 people of an affected population of 270,000 were reported to have taken part in a march”, the impression is less powerful.

Petitions are strongly favoured by campaign groups. Petitions can work for you, but usually they don’t. The three main problems usually are:

  1. Bad choice of petition text
  2. Too few respondents
  3. Untraceable respondents and other mechanical problems

Remembering that you are trying to persuade the analyst who is writing the report, the petition text should be a sober call to action which does not make any claims of fact which have not been agreed or published by the organisers of the consultation. If the language is too emotional, or if the facts are not as perceived by the analyst, the petition may be discarded. The trouble with this is that most people writing petitions try to make them as compelling as possible, which can lead to exaggeration or distorted presentation.

The threshold for signatories to a petition is 5% of a local authority area, or, for the NHS, a proposed 1% of the Primary Care Trust area. This does not mean that anyone has to do anything other than ‘consider’ (ie, hear about) your petition if it is above that threshold, but, below it, it can be simply discarded. This might seem strange since a consultation may itself only gain 100 or so written responses, but the difference is that with a petition you are making a claim that a substantial opinion is in favour of or against something, rather than making a case through reasoned argument. Also be wary of submitting a petition on an issue where the number of respondents is far less than would usually be expected — even if it is above the threshold, an analyst may write “the petition gained signatures from 6% of the affected population, compared with 18% for similar petitions in other parts of the country…”

If signatories do not leave contact details, their signatures should not normally be counted. Where a consultation is seen as substantive, and has a chance of influencing events, organisers of a consultation will normally take steps to verify the signatories, for example by ringing up or visiting a random sample of them. There is no obligation on the organisers to keep verifying if it appears that a substantial proportion of the signatories claim to have no knowledge of signing the petition. Likewise, if it is clear from the signatures that one person has signed for everyone in their house, and this appears to be a frequent practice across the petition, then the whole petition will probably be discarded.

The petition text needs to be at the top of every page. A page with signatures and no petition text is not a petition page, and will be discarded.

Public meetings

Public meetings at which the organisers of the consultation are present can be very powerful — but they are just as likely to work against you as for you. It’s important to brief campaigners before hand. Insulting the organisers, threatening them, or making accusations is always counterproductive, no matter how well received it might be on the night by other protesters. As with written arguments, it is best to make the case politely though with a degree of passion, citing agreed evidence, demonstrating unintended consequences, and offering solutions to the problems which the organisers may not have thought about. Members of your campaign group should distance themselves from any remarks made by other protesters which are insulting, threatening or accusatory. It’s particularly important to distance yourself from any threats of legal action, which could be seen as an attempt to bypass the consultation process and will stand you in poor stead if you do eventually decide to pursue judicial review.

It’s important in a public meeting to allow the organisers to save face, and for them to come away desiring to work with you, rather than persuaded that you will oppose them no matter what.

It is all too easy in a public meeting to undermine all your careful arguments by injudicious words. For example, in one public meeting I attended, a councillor who presented himself as a leader or spokesman in a campaign group was asked if he opposed a proposal ‘no matter what’. When questioned, he confirmed that he would oppose it no matter what the facts were. This may have stood him in good stead for re-election, but it effectively invalidated his arguments.

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