What to do if your consultation is flawed?

This is Blog no 111

First of all, don’t panic; there are very few flawless consultations!

And not all flaws are critical

Last week, I wrote about the Welsh Rugby Union’s consultation on the future of the game in Wales. (Blog 110) I didn’t like the split between its stakeholder ‘consultation’ and a more general attitude survey of everyone else. 

I felt the WRU was offering a reasonable debate on four credible options, and that everyone who was interested ( pretty well all the Welsh!) should have the opportunity to express a view about them. Although there might, in theory, be a legal challenge, it’s chances are slim. Far more serious would be the delay and reputational damage. 
But It has prompted me to consider how organisations should respond when things go wrong.

Consultation problems occur in many forms:

• On some issues, everyone knows that the decision has effectively been made already, and the consultation is merely ‘going through the motions’.
• Consultees are not always given a meaningful choice; maybe it is just a single option!
• Impact assessments are sparse or non-existent. Or possibly just unrealistic.
• The timescale is too short; key stakeholders appear not to be engaged on the issues.

At times, those involved are already fully aware that the proposed exercise will attract criticism, and the best practitioners will try hard to address the issues. This is not always easy. Try telling a Cabinet Minister that you need four months to consult on a fiscal measure that the Chancellor wants to confirm in a Budget to be delivered in two months’ time! We know that consultations done in a hurry can create enormous difficulties later on.

But what happens if the flaws only emerge once the consultation has started? Or what if a relatively unimportant oversight becomes the focus of consultee or media criticism … and the procedural flaws threaten to undermine or contaminate the main debate?  Can you rectify in-flight? Is it best to soldier on, absorb the complaints and make some allowances at the analysis/interpretation stage? Under what circumstances is it right to pause the process … or cancel it altogether? Indeed, how fault-tolerant is consultation?

It is not possible to provide definitive advice, as circumstances differ so much. But we can try to identify factors that might be relevant and maybe a set of guiding principles:

1. Reflect upon the nature of the consultation and the consequences for anyone who disagrees with the process. Is it a policy direction exercise, a future intentions 'direction of travel' maybe, the approval of a strategy ... or does it affect individuals or organisations in a serious way. Will it affect their lives and is the consultation one of a very few opportunities to state their case? If the latter, proceeding without addressing known mistakes will surely arouse more opposition.
2. Consider the extent to which the errors reflect upon the consultor’s reputation. Are the flaws related to external events or pressures? Maybe like last-minute changes to national policy, and where reasonable stakeholders would acknowledge the situation and the difficulties this caused the consultor? Or do they suggest organisational incompetence or worse? In such cases, there is a well-known saying about being in a hole and that you might wish to stop digging?
3. Try to anticipate the consequences of carrying on regardless. In general, the Courts have been more tolerant of procedural failures than is commonly thought. At judicial review, the fundamental test is one of fairness, and Judges will want to understand who was prejudiced by the error. And to what extent? Legal challenge is not inevitable and is preceded by a process (via a letter before claim) that gives you the chance to rectify the problem.

If you are fully aware of your consultation’s shortcomings, there is much to be said for a policy of complete candour.

• “We realise that it has not yet been possible to produce comprehensive impact assessments for these options, so we are inviting consultees to make additional submissions with their views on likely implications. Also, we are organising an event (online?) to gather views on this subject …”
• “We appreciate the very tight timelines and if this causes you a problem, please contact Jo Smith in our office to discuss the main issues with us …”
• “The Chairman wishes to stress that, contrary to recent press reports, no decision has been taken on this matter. Click here to see his short explanation for the recent confusion and the interview with …..”

If the flaws have only been acknowledged following representations from consultees, the best response is often to hold a dialogue with them directly. If they have a point, accept it graciously, and seek to find an acceptable compromise. It may not always be possible, but organisations that try hard to reach an accommodation with critics usually enhance their reputations in the long-run.

There is another option; invite a recognised expert to take an independent view of the disputed consultation. During my days running the Consultation Institute, we were regularly approached for advice and even developed a dispute resolution (not arbitration!) service to help bring consultors and consultees together. I personally found professional practitioners very willing to consider a third party review. The problem lay with senior management who saw postponement or withdrawal of a consultation as a catastrophic blow to their (usually male) egos! Unfortunately, there are many such people who persisted with a problematic consultation only to lose huge sums of money and much time in a protracted judicial review.

Finally, a true story. Not long after Elizabeth Gammell and I published The Art of Consultation in 2008, an Institute member asked to meet us in conditions of some secrecy at a Midlands hotel. She was appalled at the standard of the consultation she was asked to publish, including some pretty unsatisfactory questions. What should she do? If she made much of an issue of the matter, she feared for her job. If she stayed silent, it would compromise her personal standards.

This is a dilemma that’s not unique to public engagement, but whistleblowing is not welcome in many organisational cultures. There is no right or wrong answer. But there are very experienced consultants and specialist advisers who can help assess the significance of any errors or misjudgements.

This is not an exact science; there is scope for disagreement. In  the end, however,  there is also a need to preserve best practiceso as not to bring the art of consultation into disrepute.

I guess that is why I write these commentaries!

Rhion H Jones LL.B

September 2025

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