COVID-19 and consultation – Can it be online-only?

By Laura Thornton | 22 May 2020

COVID-19 has turned everyday life upside down. Activities, including consultations, which were planned for this time have in many cases been drastically altered or even abandoned altogether.

Although the lockdown is starting to ease, given the likely duration of social distancing measures, at some stage life as ‘normal’ needs to resume. Authorities are still faced with the need to deliver programmes which often require public consultation and engagement.

Balancing effective and adequate engagement with the challenges of restrictions on movement and social distancing is not easy, but local authorities have no choice but to try and make things work. The alternative of stalled services and little or no development would further hit communities.

Could an online-only consultation work? 

Given the restrictions on movement and closure of many public spaces, coupled with social distancing and bans on public gatherings, the most obvious way to consult the public is online. However, online-only (or primarily online) consultation throws up a number of challenges; reaching a sufficiently wide audience, achieving effective engagement and complying with the public sector equality duty.

Ensuring that all those affected by the proposals are aware of the consultation is more challenging. Restricted movement means site notices are less likely to be seen and there is reduced  circulation of newspapers. However, some novel measures could be used. Adverts on local radio might be considered, or greater reliance placed on leaflets – though this is of course not without cost. Information can also be put up in locations where people are allowed to go. Effective and considered use of social media is likely to be part of any consultation strategy and the current situation makes this even more important.

Consultation information must be accessible and capable of being easily interpreted. There are a host of online tools to achieve this; for example, video content and interactive models. Webinars and chat rooms (perhaps in small interest-focused groups) could facilitate direct engagement with those who might ordinarily be present at public meetings. Also, information can be available 24 hours a day so consultees are not limited to the opening hours of deposit locations to consider it.

Some of these methods, however, demand significant data use and devices suitable for viewing larger images. Those who can only access the internet via a small handheld device may find it hard to engage meaningfully. Equally, research indicates that certain socio-economic groups are less likely to have internet access. Disabled people may also face difficulties accessing online materials. There are real challenges in relation to the public sector equality duty as online consultation is likely to disproportionately exclude older and disabled people. 

With any groups at risk of not being heard, early engagement and discussion will be more important than ever. Additional measures should also be considered, such as a dedicated phone line to request accessible copies of consultation material, and mobile-friendly versions of the website.

Can the proposals be given ‘intelligent consideration’?

A consultation must allow adequate time for consultees to consider and respond and sufficient opportunity for participation.  While the public are distracted by COVID-19, it could be argued that they are not able currently to give proper consideration to other issues, and may not have sufficient opportunity to participate effectively in a consultation.  The extent to which this will remain the case over the coming months is unclear and it will be a judgement call for local authorities to assess the stage at which consultation in relation to non-coronavirus related topics might be appropriate.

One of the most frequently seen mitigation measures for consultations during the pandemic is the extension of response times. While this would not in itself render an otherwise unfair consultation satisfactory, it is something which may mitigate other drawbacks.

Does COVID-19 end consultations?

The simple answer is ‘no’: but full and careful consideration needs to be given to mitigation measures which could be adopted to ensure consultation is fair.  New measures will need to be introduced and the current lockdown should not be viewed as an automatic reason to delay. Some of these new measures will actually positively improve consultations and may survive long after the lockdown has faded from our memory.

Laura Thornton is legal director of BDB Pitmans

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