Can a consultation make a difference?

With the promise of a consultation on the walk in centre in Lincoln, the published and consulted (?) Joint Services Needs Assessment starting next week, or even the recently discussed Sustainable Transformation Plan. I thought it important to try and highlight, how the process of consultation works at present, the downfalls of the system and how in reality it should work.

There are a number of laws under NHS and Local Authority legislation which require when a process,  policy, or procedure whether written or unwritten is brought in to place or changed, that has the chance of having an effect on local communities require consultations to take place.  The ideas behind it is quite rightly meant to be that the people, not the managers, councillors or politicians can have a say on the impact that this may have on their community. 

The main piece of legislation that I will concentrate on is the Equality Act 2010. The main provisions relating to the requirement to consult comes from section 149 the Public Sector Duty of the Act which  states, that those in the public sector and those associated with them must have "due regard" to;


Eliminating unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act.

Advance equality of opportunity between people who share a protected characteristic and those who do not.

Foster good relations between people who share a protected characteristic and those who do not.

So when a procedure process or policy has the potential of effecting any of the relevant protected characteristics under the act the authority must consider the effects of the policy change.In order to do this the courts through previous cases have decided (known as the Gunning principles) that having due regard means that the following should happen;

1. Issues are to be considered at the start.

2. People involved in the consultation need to have the necessary information to consider the effects of the decision (known and carried out usually through an Equality Impact Assessment). Both how positive and negative impacts the decision will have. If negative how these will be mitigated.

3. Adequate time for consideration and response is given

4. The people making the final decision must be aware of the views of the people’s views and use the information in making the decision. 


Now this doesn’t mean that the authority can’t make unfavourable decision. It just means that it needs to consider the options, talk to the people and take those views in to consideration. If this doesn’t happen anyone has the right to request a Judicial Review of the process.

However there are shortfalls of the system. Having worked for the Local Government, and since running the local disability user led organisation, Lincolnshire Independent Living, I have gone through many consultations and often find them lacking in due regard. 

They in my opinion fail regularly for exactly the four reasons given above. Yes it’s a legal requirement and they’ll do a consultation (most of the time), but likely or not most decisions are already made. This is obvious as most do not have impacts carried out at the beginning (the excuse used these days is it’s a live document). Having sat through a number of scrutiny meetings. The powers that be never even look at the EIA. Even when they are specifically asked to do just that.  

Even after all this you'd think lots of concerned people would be bringing challenges through the courts, but with the cuts in legal aid and judicial reviews happening at a high level, it is a costly endeavour. Most people will therefore never consider it. For those who do if you lose there can be ramifications such as authorities putting on the cost charges through the court against the person. 

The final issue is even though the decision may be morally or justifiably wrong if it goes to a judicial review the courts will not be deciding on the decision itself they just look at the process. If it’s not been followed then most likely the courts will just ask the authority to do it again. Which they will do, but still come out with the same decision. 

Consultations therefore should be about the authorities listening. Which they can do but what people really want is to be heard. These are two different things.  To be heard requires the powers to be to have a deeper regard of the people’s needs.

So do consultations have their place in today’s world? Yes in a democracy they do, if done properly! The organisation has the right to do what if sees fit, but it must stand up and give reasons for this, even if it is a cost saving exercise, the truth must be known. More importantly the public should  make a note,  and when it comes to voting that’s the time for the public to remind the Councillors, MP's and other senior officials that they are there to work and serve the people and in order for that they must be heard.