Why is consultation so important?
When a school becomes an academy, the rights of pupils, parents and staff are altered – for example, pupils are no longer automatically protected by education law because most only apply to maintained schools. There are other important changes, for example community assets, such as the school grounds and buildings, previously held publicly, are transferred to private ownership. These changes are irreversible and will affect not only the current school community, but generations of families to come. Parents and pupils, as the primary stakeholders, have an unanswerable right to consultation on changes that will affect them so deeply before any decision is taken about the future of the school. This is equally the case when a school is coming under duress from the DfE as a ‘forced academy’ as when school governors are making a free choice. Although this may seem like common sense, consultation is often not happening at all or is not happening in any meaningful way. Ask Parents First was established in response to these concerns.
What should open and democratic consultation involve?
The lawyer David Wolfe sets out the general legal requirements for consultation on his blog ‘A Can of Worms’
In short, anyone who undertakes consultation must let people know what they are proposing and why, give them a chance to comment, and conscientiously take into account their responses with an open mind before deciding whether or not to do what was proposed.
The basic rule is that, whether or not a public body was required to consult, if it does so, then it must comply with the following overarching obligations (unless detailed statutory rules supplant these):
- Consultation must be at a time when proposals are at a formative stage.
- The proposer must give sufficient reasons for its proposals to allow consultees to understand them and respond to them properly.
- Consulters must give sufficient time for responses to be made and considered.
- Responses must be conscientiously taken into account in finalising the decision.
All of those are aspects of an overriding requirement for ‘fairness’. The process must be substantively fair and have the appearance of fairness.
Extent of consultation: depends on all the circumstances.
But where the issue was a boundary change ‘persons who may be interested’ included the public as a whole.
It can be lawful to consult only representative bodies provided the court considers it fair to do so.
Formative stage: all issues being consulted upon must be at a formative stage so is it no good consulting just on issues of timing and implementation where the principle has already been decided upon.
Phased or staged consultation: there is no objection in principle to consulting/deciding in stages (eg issues of principle followed by issues of implementation) provided the stages are not so rigidly defined as to, in effect, preclude full consideration (and response in relation to) the issues in the round.
‘The full package must be sufficiently identified as part of the final stage of publication, and there must be adequate time after publication of the final part of the package for the package to be considered as a whole and for representations to be made.’
The 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.
The reasons given for what is proposed must include a candid explanation (indeed a true explanation!) and an explanation of the factors or criteria which the consulter considers important to its decision-making.
There is not necessarily an obligation to state the disadvantages of a proposal.
Although there is no general obligation to disclose unpublished internal advice or representations from other consultees, that remains subject to the overarching requirement to give sufficient reasons for consultees to be able to respond intelligently, such that, where the decision was being informed by private representations, those representations needed to be made available to consultees.
If the public are being consulted then the consultation document must be available to all, in a language which is simple and clear and not bedevilled with jargon.
It is not permissible to rely on ‘mediation by opinion makers’ for (eg) complex financial information.
It should be clear what is being consulted upon: where only ‘issues’ were raised, consultees were entitled to proceed on the basis those were the issues and not some underlying decision of principle: could they reasonably foresee that, following consideration of responses, the issue of principle would be decided?
But note that an invitation also to provide “any general comments you may have” can lead to the inference that underlying issues are in play.
Information and documents to be provided: The obligation to provide information to consultees can require the provision of significant amounts of information, and in a form which allows consultees properly to understand and make “meaningful and informed representations” on what is being consulted upon.
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.
If fairness requires it then the consulter may be obliged to provide consultation responses from some consultees to others for the latter’s comment.
Information can be supplemented during the process, but the less information that is provided at the outset, the more likely it is to be unfair to provide substantial information later in the process.
Consultation on a single option: A public body can consult on a single, preferred, option but that is unlikely to be lawful unless other options are identified and the preferred option explained in a way which allows consultees properly to argue in favour of alternatives.
The consulter should not prematurely preclude options from consideration.
Changes mid process/new options: If the public body fundamentally changes its proposal mid-process or is minded to proceed in a way which was not part of the proposal consulted upon, then basic fairness may require it to re-consult or consult afresh on the changed proposal.
Depending on the circumstances, further consultation may be required on matters and issues that the initial consultation may have thrown up.
Considering the responses: The person or people actually making the decision do(es) not need to read every consultation response in order to have been taken conscientiously to have taken them into account.
They are entitled to rely on others to summarise responses.
But that process must be a fair and neutral one and not omit significant material points.
Indeed, it “includes a positive duty to provide sufficient information and guidance to enable members to reach a decision…”
Once consultation has completed a decision-maker is not required to disclose his own thought processes for criticism before reaching a decision but if, in the course of decision-making the consulter becomes aware of a new factor of potential significance, fairness may require that concerned parties be given an opportunity to comment.
Norwich Council sets out its expectations re consultation as follows;
Given that Head teachers and Governors want the best for their school it is reasonable to assume that they should want to hear the opinions of their parents, pupils and staff, and that their parents, pupils and staff are properly informed.
When writing to governing bodies of schools in the city we would propose to any school that is considering becoming an academy that they follow a democratic and open consultation process. This would include, before Governors deciding to
investigate becoming an academy that they invite both proponents and opponents to present their views to a Governors meeting. If the Governors decide to pursue academy status a democratic consultation should be held. Information that should be part of the consultation process should include:
- the benefits of converting and disadvantages of converting
- the extra money, if any, the school would get, and on what basis
- the extra responsibilities and costs the school would take on
- the risks
- the ‘freedoms’
- the impact on pupils; teachers and other staff
- the impact on the community and on other schools
A parents meeting should be held at a convenient and well publicised time (more than one if necessary). Speakers for and against should be present. It may be useful to hold an indicative ballot to assess the mood of those who have attended and heard the debate.
Literature both for and against should be circulated to every parent. A secret ballot of parents, pupils and staff should be held with a clear question on the ballot. If Governors want their decision to be respected then they should respect the vote, and abide by it. Furthermore there should be sufficient notice for any parents meeting. Campaigners should not be obstructed from distributing alternative viewpoints. A consultation form should have a Yes / No response, not simply ask for comments. Governors should release the result of any vote.
This may seem obvious as a process. However given very poor consultation practices up and down the country on academy conversions and the minimal requirements to consult under the 2010 Act, setting out in detail guidance about what a proper consultation should look like is essential given the importance of the issues and principles that are at stake.
The National Governors Association publishes guidance for members on the 2010 Academy Act which includes guidance on consultation;