Special Post (Revised to include legal requirements and other suggestions)

Every council has to have a public consultation before implementing major changes to its public library service.  However, there appears to be major differences in how to do it and the objective quality of such consultations is often so low that they cause anger or even legal challenges.   Below, then, are thoughts on what makes a real consultation.  Some of it represents an ideal world and would result in bitter laughter in some library offices facing the reality of urgent cuts but such officers need to be aware that getting things wrong could lead to an expensive judicial review.  Most of it, though (including fundamentals like not voting on the decision until after the consultation period has ended), represents the basics that, unfortunately, many councils up and down the country are getting wrong.  Please email if there is anything else that should go on the list or anything on the list you strongly disagree with… like much else in Public Libraries News, this information has been posted so that it is easily publicly available and so it should be as accurate as possible.
1 – Make it Real. Don’t enter a consultation being unwilling to change your initial proposals.  This is for two reasons.  One, this is going to be noticed and result in legal action (cited in Brent and Glos cases) if the process was obviously insincere.  Two, people will feel lied to and feel angry and they’re going to complain.  In droves.  However, it should also be noted that objectors are also allowed to see sudden changes to the proposals made during the consultation as evidence that there was lack of a proper assessment to begin with, as was the case in the Wirral.  So, the best answer here is for councils to do their homework before launching the consultation in the first place. 
2 – Make it Available. Ensure consultation documents are fully available.  This means a dull set of documents need to be actually in libraries. A “full set” should include the officer’s report, the councils’ policy on consultations (if any), the consultants’ report (if any) and any other documentary evidence (such as community profiles, library usage statistics) that went into the making of the report. Importantly, the equality assessment impact should also be present. The criteria used for making the decision should be clearly stated. Provision should be made for all of these documents to be updated as more information is gathered and decisions changed during the consultation process.  A purely electronic consultation is inherently biased – it’s disenfranchising those (especially a lot of library users) who do no have access or feel comfortable with computers.  However, it should also of course also be fully available online as well – think belt and braces.
3 – Make it Known.  Ensure the consultation is publicised.  Some consultations have been so buried in websites one needs to know the url in order to get to it.  In som councils, staff have not been allowed to tell users that there is a consultation going on and can only hand out a form (hidden behind the counter) if directly asked.  Council should (a) put it in the newspaper and “hyperlocal” websites/facebook/Twitter (all this can act as a positive for the council if one is serious about consultation. It can also be a really good advert for how up to date and listening the council is), (b) have consultation posters and leaflets on public display in the library and other community centres (such as doctors’ waiting rooms), (c) link to the consultation on libraries website, (d) notice of consultation to stakeholders (a comprehensive list would take too long but suggestions include Friends groups, local schools, age and disibility charities, tots groups, local university/colleges, the WI, netmums, CILIP and UNISON (or other relevant unions).   Of course, the council should check with their Legal Services department too.  Making it known to these groups will also show that you are being inclusive, which is vital under the 1964 Act.
4 – Make it long enough.  Ensure a long consultation period.  If the consultation falls over the Summer holidays or Christmas, add extra time to the consultation to compensate. 12 weeks is the normal statutory peiod.
5 – Meet the public.  Arrange meetings in each local area where cuts/closures are planned.  Holding meetings just in the biggest libraries (that are not being closed) is very poor practice but has happened.  Ideally, councils should hold meetings as close to the threatened library as possible (its unlikely a small library itself would be able to fit the numbers though – expect hundreds to attend).  Meeting should be arranged when both workers and senior citizens can attend but it should be borne in mind these groups may have different demands (senior citizens – mornings, workers – evenings, both – weekends).  Talk the matter through with keyholders and other special interest groups.
6 – Keep it unbiased.  Asking a crooked question gets a crooked answer.  For full bonus points, council should show the document to UNISON (and other relevant unions) and CILIP first for their thoughts and be prepared to make questions more neutral.  There have been some very very biased questions such as “To avoid closing the library, how would you be willing to volunteer?” (not an actual example but they can really be this biased).  Give “no change” as an option but with all the caveats you wish around it.  Not giving “no change” (which is what all your users actually want) will cause bad feeling.
7 – Have time to analyse and publicise the results. Allow considerable time between the end of the consultation (and carrying out the equality impact assessment) and the decision.  Library consultations are going to get thousands of responses.  Arranging the end of the consultation period to be after the date the decision has been made (this has happened) is clearly bad practice.  Make the summary of the feedback as unbiased as possible (people get really annoyed when 15000 people say no change and the council emphasises the few hundred willing to volunteer) and as public as possible.  Freedom of Information requests will force the date to be public anyway.
8.  Avoid public relations speak and glossy photos of happy children like the plague if the real message is “we’re closing half the libraries”.  People notice.  Using words like “challenge”, “exciting opportunity for change” and “transformation” only work if one is not cutting the budget by 25% and have original plans for dealing with this other than cutting the front-line service by a third.  Again from a real-life example, saying “we’re delighted by the support shown for libraries” and then going ahead with getting rid of a significant proportion of them will be spotted. Explain jargon like OPACs, RFID, or even “Lower Super Output Areas”.

Basic stuff this but councils up and down the country are continually getting the basics wrong and so are being forced to go through so may time-consuming and money-consuming judicial reviews.

NB This is the legal stuff….

  • * Consultation must be carried out fairly and, although extent and method will depend on circumstances, it should generally follow the formulation set out in R-v- Brent LBC ex p. Gunning (1985) 84 LGR 168: (1) it must be conducted when the proposals are at a formative stage; (2) the decision-maker must give sufficient reasons for its proposals to permit of intelligent consideration and response*; (3) adequate time** must be given for consideration and response, and (4) the product of consultation must be conscientiously taken into account before making the relevant decision***.
    • * “[A consulting authority’s] obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response.” – R –v- N Devon HA ex p. Coughlan (2000) 3 All ER 850 (Lord Woolf).
    • * “[*Consultees should] know not just what the proposal is in whatever detail is necessary, but also the factors likely to be of substantial importance to the decision or the basis upon which the decision is likely to be taken.” – Devon CC –v- SoSfCLG (2010) EWHC 1456 (Admin).
    • **Time to be allowed depends in each case on own facts, but if there is a local compact in force, a 12-week period will be required unless there is a good reason to depart from this.
    • ***The consultation responses should be before the decision-makers in good time for them realistically to be able to consider them properly. Where reports to members contain only a summary of the responses, this may well not be adequate, because summaries may not always reflect the nuances of particular responses or may fail to reflect the particular emphasis of each response; decision-makers should have access to all the material, albeit with a guide to pertinent matters for ease of reference. [NB: this should be linked with the requirement, spelled out in R (W,M, G & H) –v- Birmingham City Council (2011) EWHC 1147 (Admin) (the care homescase) that, where a decision may affect substantial numbers of vulnerable persons, the statutory duties as to promoting equality will mean that decision-makers will need rigorous and accurate advice from officers and, of course, this requirementwill have to be reflected in the consultation process.]
    • The manner in which the Equality Impact Assessment is to be/has been carried out should be rigorously analysed to ensure compliance with statutory duties (e.g. s.149 of the Equality Act 2010) and the amplification of those duties by the courts (e.g. the ‘Brown Principles’, as to which see R (Brown) –v- SoSfW&P [2008] EWHC 3158).
    • In cases involving a substantial reorganisation, the authority must give proper consideration to adopting the enhanced consultation process referred to in s.3A of the Local Government Act 1999, which entails involvement of the affected community and its representatives and, if this is not thought to be necessary, reasons should be provided. 

With thanks to suggestions from Lauren Smith and NMac.