Stakeholder consultation and the rising threat of legal challenge

Key points

• Challenges are coming from everywhere. Recent examples include harbour dues in Bristol, adult social care cuts in Dorset, a bridge closure in Bournemouth and the London ULEZ consultation.

• Some challenges say there was no consultation at all. West Lindsey District Council objected to the proposed use of RAF Scampton on the grounds that the Government should have consulted and didn’t.

• It’s usually a political issue, not a legal one. A consultation can be legally sound and still be challenged.

• Cost is no longer the barrier it was. Crowdfunding means campaign groups can raise the £50,000 or more it can cost to go to the High Court.

• Challengers don’t need to win. Even a lost case can make it hard for a public body to go ahead with its original plans.

• The answer is evidence. If you get a letter before claim, you’ll need to show that people were approached in the right way, at the right time, with the right information and a real chance to have their say.

   

What this means for your consultation

Rhion’s point is about records as much as process. If a consultation is challenged, the questions are practical. Who did you contact, and when? What information did they get? What did they say back, and how was it considered? If the answers are spread across inboxes, spreadsheets and event sign-in sheets, they’re slow to pull together and easy to question.

Tractivity keeps every contact, document and response tied to the right stakeholder and the right project, with a dated audit trail. When you need to show how a consultation was run, the record already exists.

To test a current consultation, the Consultation compliance kit pairs a plain-English guide to the Gunning Principles with a scored self-audit.

About Rhion Jones

Rhion Jones is the Consultation Guru and a former Director of the Consultation Institute. He writes and speaks about public consultation, stakeholder engagement and the law around them. You can find more of his videos and articles in Thought leadership and the Tractivity blog.

Transcript

I thought the Tractivity community would be really interested in the themes we’ve been discussing in April, on the threat of legal challenge to your stakeholder management and stakeholder consultations.

In my Consultation Guru blog, I’ve drawn attention to legal challenges far and wide. There’s a challenge from Bristol residents with boats in the harbour, against the increased levies they’re going to have to pay in their harbour dues. There’s another legal challenge to the consultation on adult social care cuts in Dorset.

Staying in the same area, down in Bournemouth, Cycling UK is challenging a consultation on the closure of a bridge. You may all know about the challenges by two or three of the London boroughs against Sadiq Khan’s ultra low emission zone consultation.

There are other challenges that aren’t directly against the consultations themselves. West Lindsey Council is objecting to the Government’s proposed use of military facilities at RAF Scampton for asylum seekers. They’re not saying there was something wrong with your consultation. They’re saying you haven’t had a consultation, and you should have one. There’s another one in Braintree. All over the place.

My analysis is that regardless of government attempts to suppress judicial reviews, you’re not going to stop people who object to things from threatening legal action in circumstances like this. There are many drivers of this. One of them is that it’s not usually a legal issue, it’s a political issue.

Your consultation may be legally foolproof, but you might still end up in court.

The second thing is that the inhibition of the high cost of going to law is disappearing. With crowdfunding and crowdsourcing, many campaign groups can now raise the £50,000 or more it can cost to go to the High Court. And remember, sometimes they don’t even have to win. They could lose, but in a way that makes it very difficult for the public body they’re challenging to proceed with its original plans.

The impact of all this on decision-makers and public bodies is that you do have to get your act together.

It’s true that you can be legally challenged even if you’ve had a wonderful consultation. But believe me, if it does go to court, or even if you just get a letter before claim, you’ll have to show that it was a wonderful consultation.

Without the tools and technologies that platforms like Tractivity offer, you’re going to have great difficulty amassing the evidence that shows people were approached in the right way, at the right time, with the right information, and given an opportunity to have their say.

So as the months roll forward, we’ll be looking at a number of these cases. I think we’re in for some important judicial interventions as the year goes on.