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06 April 2020

Is it possible to consult during the COVID-19 pandemic?

As COVID-19 continues to affect all aspects of public life, one of the current challenges during these unprecedented times is how to approach consultations. Can live consultations continue? Is it feasible to start a new consultation during the lockdown? How best might a consultation be undertaken later this year? We consider below some of the legal questions related to consultation and assess some practical options available.

Live consultations

In relation to live consultations, careful thought needs to be given on how to proceed and whether the consultation should:

  1. continue as planned;
  2. continue but with significant modifications; or
  3. be postponed entirely.

In each case, relevant considerations are likely to be the time remaining, the extent of engagement with the relevant stakeholders achieved so far and the particular considerations of that case. For example, it may be possible to adopt some of the measures discussed below in order to ensure the final part of a consultation continues to be effective, but there are also likely to be cases where the consultation was not planned with lockdown in mind and too many changes would be necessary to achieve a legally robust consultation in the current circumstances.

Consulting during lockdown

In respect of consultations planned for spring and early summer, if it is deemed necessary to continue despite the lockdown, any plans will need to be flexible enough to fit in with government restrictions and measures which may be in force while also ensuring the consultation complies with the Gunning Principles. The risk of a consultation being challenged on the basis that it proceeded during the lockdown is real, but there are potentially measures which can be taken to mitigate this risk.

Some of the key issues to consider include:

  • Is it feasible to continue with the planned methods of public engagement? For example, if the planned engagement involved public meetings, this will now be impossible due to the current government restrictions on public gatherings and social distancing measures. The same goes for user groups, focus groups, workshops, citizen panels and any other method which involves a gathering of people. Displays of information in public places, whether hard copy documents or touch screen interactive displays are also unlikely to be possible both due to contamination risks and the closure of all but essential public spaces. A change to more electronic methods may be something to consider, however (exclusively) online engagement can present its own issues as explained below;
  • Is it possible to reach and engage with a sufficiently wide audience? Even if the chosen engagement methods are theoretically feasible during the government COVID-19 measures,  the issue of whether you can actually reach a sufficiently wide audience still remains. For example, if key stakeholders include elderly and / or vulnerable people, it may be very challenging to reach and engage with these sections of the public because of the current government advice for elderly and vulnerable people to stay at home for 12 weeks. In this instance, switching to online-only methods of engagement may not provide a satisfactory solution as these groups may be less likely to have access to the internet or feel comfortable engaging with a consultation digitally. Where the consultation does not directly or exclusively concern elderly or vulnerable people, there may be ways to ensure an online consultation can deliver a sufficient standard of engagement;
  • Will notice of the consultation reach a sufficiently wide audience? Information provided in relation to a consultation must be ‘available, accessible, and easily interpretable’. Many of the usual methods of making information available and accessible to the public have now become unworkable and in some cases, simply impossible. For example, posting site notices with details of infrastructure schemes for the public to see when walking past are evidently not going to be effective during a lockdown where the majority of the population are being asked to stay at home. Equally, newspaper circulation has been impacted by COVID-19, which means that newspaper notices may be less effective. Where a statutory obligation to consult includes specific requirements to make documents available at public locations or post notices, it may be possible to secure exemptions from these obligations, however the underlying obligation to bring the consultation to the attention of relevant groups remains. These examples are just the start; COVID-19 poses numerous challenges to engaging with all stakeholders;
  • Can online content be enhanced to better facilitate discussion? Online consultation has been expanding and developing over recent years and there are a number of ways in which it can further step forward to address the gap left by face to face engagement. For example, use could be made of video content to explain aspects of the proposals and online discussions could be conducted using video conferencing software. With careful planning, it may therefore be possible to provide some level of interaction and online discussion of the consultation material; and
  • Can the proposals be given intelligent consideration? Last but not least, it would be sensible to consider whether the consultation is time-sensitive. If not, there may be advantage in postponing the consultation until later in the year. The Gunning Principles set out that there must be ‘adequate time’ for consultees to consider and respond to a consultation and ‘sufficient opportunity’ for participation. The public are understandably very distracted by COVID-19 and therefore it could be argued that they are not currently able to give proper consideration to other issues, nor sufficient opportunity to participate.

Equally, there is authority that there is no duty to consult where the consultation concerns plans which are required in extremis as a response to the current emergency situation, for example, in a healthcare setting where services have become dangerous and changes are required immediately.

In some circumstances, therefore consultation may not be needed at all or could be undertaken in a more limited fashion.

Planning for future consultations

There is naturally a significant degree of uncertainty regarding how long the lockdown will endure and as such, planning ahead for future consultations will necessarily entail a greater than usual element of risk regarding the viability of the proposed timing and the success of the planned methods of engagement.

There is much, however, which consulting bodies can do now in order to ensure their consultation materials are as ready as possible for the point when lockdown ends. Time spent now on preparing documentation for consultations which it is known will be needed later is unlikely to be wasted. The current reduction of many normal activities provides a unique opportunity to focus in detail on time consuming but important points, such as ensuring clarity of explanations and accessibility of information.

Please note that the government COVID-19 measures referred to in the above blog post were accurate at the time of writing.

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