WHAT IS ADEQUATE PUBLIC CONSULTATION?

WHAT IS ADEQUATE PUBLIC CONSULTATION?

How will the FTA assess the adequacy of a public consultation undertaking?

Whether or not there is a legal obligation to consult, when consultation occurs, it must be carried out fairly. What is 'fair' will depend on the circumstances and the nature of the proposals under consideration.

The rather open-ended doctrine of fairness means that different people could reach different views on the fairness of the consultation process, even given the same facts. Sensible guidance for decision-makers is to approach consultation with more care and seriousness when the subject-matter is likely to prove particularly controversial.

Unless there are legally required procedures, and subject to the overall requirement of fairness, the decision-maker will usually have a broad discretion as to how a consultation exercise should be carried out; and what should be consulted upon.

The decision-maker's discretion is not without limits, however, as it is commonly accepted that certain fundamental principles of fairness must be adhered to. These are explored below.

Ensuring adequate time for consideration and response

Unless there are prescribed statutory timeframes, what constitutes "adequate" time is case-specific. However, where existing policy will be departed from, there should be a good reason for doing so. Otherwise, the decision-maker may be guilty of a breach of a legitimate expectation that the policy will be followed.

Basic considerations should include:

• Decision-makers will have to form a judgment as to what period of time is appropriate for the consultation. Where there has been prior discussion about the issue, then it may reasonably decide to limit the time for formal consultation. On the other hand, where the information to be consulted on is complex, or not well known to participants, it may consider that a longer period of consultation is called for.
• Timeframes for consultation should be realistic to allow participants sufficient time to provide a considered response.
• Engagement should begin early in the process when the option is still under consideration and feedback can genuinely be taken into account in making decisions. There are several stages of site selection, and it may be appropriate to engage in different ways at different stages. As part of this, there can be different reasons for, and types of consultation, some radically different from simply inviting response to a document. Every effort should be made to make available the evidence at an early stage to as enable contestability and challenge.

Making information useful and accessible

Materials

Consideration should be given to the types of material used in consultation and the level of technical expertise required to understand it. Allowances must be made to adapt materials in order to ensure that the public has an opportunity to understand technical aspects of information presented.

The level of detail of the information that needs to be provided will vary by audience. Where the groups to be consulted are particularly expert, then greater detail may be required.

Where the decision-maker has access to important documents which are "material" to the determination whose contents the public would have a legitimate interest in knowing, then those documents should be disclosed in the consultation process.

Assessment Criteria

It is important that the public be aware of the basis upon which a proposal will be considered as otherwise they will be unable to give meaningful consideration or make an intelligent response to it. This requirement means that the public is entitled to be informed of the criteria to be adopted by the decision maker and the factors to be considered decisive or of substantial importance, in making the decision at the end of the consultation process.

Accuracy of Information

Information that is made available during consultations should be as accurate as possible at the time. Inaccurate or incomplete information may have the effect of precluding an informed response to the disadvantage of participants that may be affected by the decision.

Consultation on a single option or alternatives

A public body can consult on a single, preferred, option but that is unlikely to be considered fair unless other options are identified and the preferred option explained in a way which allows participants properly to argue in favour of other alternatives. Options should not be prematurely removed from consideration.

Keeping an open mind

If the decision-maker does not properly consider the feedback provided in the consultation, it can be accused of having "made up its mind", or of failing to take into account a relevant consideration.

If a decision-maker has arrived at a "preferred option" or "recommended outcome" prior to initiating consultation, this should be clear to participants so that their feedback can be focussed accordingly.

The feedback received during consultation must be meaningfully taken into account by decision-makers. The consultation findings – which may reflect multiple and conflicting values and perspectives – must be considered along with technical information when making decisions.

Offering a variety of forms of consultation

Consideration should be given to offering a mix of consultation methods: from formal public hearings; to less formal forms techniques ,— for example, e-mail or web-based forums, open houses, public meetings, and surveys.

The methods used must be appropriate to the nature of the issue, the participating audiences, and the staff and resources available for consultation.

Adhering to existing legislative requirements

Ensure that public participation processes adhere to the relevant legislation, regulations, policies or guidelines.