NHS colleagues have already stopped most nonessential public engagement activity. Many have stopped or paused live consultations. The capacity of consultees to understand and respond to proposals is limited right now, organisations rightly don’t want to crowd out critical public safety messages, and capacity in organisations has been diverted to support essential efforts on COVID-19.
There is some evidence, nevertheless, from the market research industry, that online activity in general, including consultation and engagement activity, is increasing – perhaps as people at home are turning to their tablets and laptops to keep in touch and contribute their insights to public bodies.
If stopping a public consultation in these circumstances isn’t proportionate and appropriate, when is it likely to be?
Assuming that the circumstances make it operationally impossible to commit resources to a consultation, broadly we can:
- Abandon the consultation
- Stop all active, contact-based, data gathering for the consultation and let it run its course, perhaps supplemented with more online opportunities
- Pause or suspend the consultation to pick up later
When you’re making the decision, or afterwards if you’ve already been forced to act, there are some things to do that are likely to be useful to bear in mind, to help your assessment of risks and help keep the process safer from unhelpful challenge.
1 – Abandon the consultation
This is likely to create a need for additional activity if the change programme wants to pick up where it left off. That won’t matter too much if you’re early in the consultation. Consultors can review the proposals and start another consultation period at an appropriate time in the future. If the consultation is further along, a careful assessment will need to be made if the proposed closing date is brought forward. This could be dealt with later by a period of supplementary consultation at an appropriate time.
2 – Stop all active data gathering and let the consultation run its course.
Some consultors have already chosen this approach, stopping all in-person activity: public meetings, focus groups, etc. Moving some of that activity online, offering alternatives by way of telephone and email, and keeping open the high-capacity questionnaire-type data gathering approaches to the published closing date. The impact of these changes will depend on how advanced your consultation is. In the latter stages it may be minimal, earlier impact will likely be greater. Active decisions and clear communication of those via websites and networks will be vital to transparency.
3 – Pause or suspend the consultation to pick up later.
This is possibly the safest approach for the majority of programmes to implement quickly. Make a clear statement suspending all activity and pausing the consultation process to pick up at a future date. High capacity questionnaire-type channels can remain open, if required. We’d recommend consultors close off the data set received before the closure and analyse that separately from the responses to a future additional period of consultation, so common variances can be identified. During the closure we’d advise consultors to continue logging requests for information and criticisms of the process to be addressed when they reopen the consultation. COVID-19 is likely to bring significant changes to the background policy landscape, so any future decision to restart the consultation would need to be informed by that.
As always, each situation is different and the specific details will need to guide the decisions taken. External challenges to these processes will focus on consultors acting fairly. Everyone appreciates the situation so we can reasonably expect the courts to look at whether the process was fair and in good faith and took account of all relevant information, given the circumstances.
We are always talking about the need to keep good records of the thinking behind actions and decisions, in these cases it will be useful to:
- Explain why the changes you’re making are necessary and why you’ve chosen those specific changes
- Record the thought process that leads to these decisions (even if it’s one officer making the decision)
- Show you’re aware of your various legal duties and have accounted for them proportionately
- Make sure you still hear all relevant information and use creative approaches to reach out
These efforts will help demonstrate your efforts to be transparent and act entirely in good faith even under trying circumstances. That is likely to be well-received by reasonable stakeholders and if a legal claim is brought, hopefully also likely to be well-received by the courts.