The Gunning Principles and Digital First – Staying out of Court in an Online World

Aligned with the Gunning Principles, digital first public participation can bring about fair – and lawful – public consultation.

Increasingly, people are talking about a world where face-to-face consultation is no longer an option. Now this might seem extreme and of course people will always want to attend face-to-face meetings. But what if the default position is digital first and the face-to-face aspects of public consultation are the minor ones? What does this mean for the law of consultation and avoiding successful claims for judicial review – on the grounds that a consultation was flawed or unfair?

Well do not fear. Potentially a digital first approach to consultation will help public bodies to stick to the letter of the law and adhere to the legal principles like Gunning One, Two, Three and Four.

Gunning Principles

Just in case you didn’t already know, in the UK, public bodies can’t just go ahead and make unfair or irrational decisions without possible comeback.  Rather, they can be taken to court by the public and their representatives and held to account by the Judiciary. The Gunning Principles are the founding legal principles applicable to public consultation in the UK.    They were first laid down in 1985 by Mr Stephen Sedley QC and have stood the test of time in successive court judgements, making them applicable to all public consultations that take place in the UK.

They consist of four principles, which if followed, are designed to make consultation fair and lawful:

• Gunning 1 – Consultation must be at a time when proposals are still at a formative stage
• Gunning 2 –  Sufficient reasons must be put forward for any proposal to permit “intelligent consideration” and response
• Gunning 3 – Adequate time is given for consideration and response
• Gunning 4 – The product of consultation is conscientiously taken into account by the decision maker(s)

Put simply, these criteria are a “prescription for fairness” and mean that a public body must: consult before they have made up their mind (albeit that an open mind is not an empty mind); provide people with the right kind of information for them to be able to take part in the consultation; give people enough time to participate and respond; and, give consultation responses conscientious consideration.

Now, over the years, people have become well versed in traditional tactics for complying with The Gunning Principles. For example, providing options for consideration; writing comprehensive consultation documents; doing more than just a hard copy survey; sticking to custom and allowing twelve weeks for a consultation; and, ensuring that the decision making process includes aspects of conscientious consideration. But, what if, in a digital first world we have to rethink our response to the Gunning Principles?

Rethinking our response to the Gunning Principles for a digital first world

Let’s take each principle in turn and rethink it for a world where public consultation is primarily digital first.

Consulting before you have made up your mind

Online consultation offers a great opportunity for public bodies to show that their consultation is a fair one. This is especially the case if they avoid the trap of just relying on a survey, which is often quite a closed environment for a genuine discussion about alternative options.

In a digital first environment public bodies can:

• Offer alternatives to a survey like discussion forums, tools for ideation and mapping tools to open up the conversation about their proposals and permit participants to influence the outcome
• Engage early, when proposals are at a formative stage, perhaps using online forums and story-telling tools to encourage deliberation and a feeling of genuine involvement.  A formal survey may only kick in once people have had the opportunity to digest and debate the issues online (maybe at home, during their commute, on their phone, at their leisure and in bite size chunks).
• Use a variety of dialogue methods so that people feel that they have been listened to and participated in a meaningful process.  Offering online alternatives to traditional, but less practical, face-to-face meetings and workshops can help public bodies to be active listeners, building trust in the consultation process.

Digital first creates a perfect environment for “intelligent consideration”

Thinking digital first creates the perfect opportunity for public bodies to demonstrate that they have furnished participants with adequate information to permit intelligent consideration and response.  Especially as it allows them to move away from relying on, hard to digest consultation documents and instead break their argument down into snippets of useful (shareable) information – all held together in an array of information widgets.

In a digital first environment public bodies can:

• Create an online environment for intelligent consideration, for example, by offering document libraries, information widgets and rethinking consultation content into accessible infographics, videos, podcasts, blog posts, listicles and so on.
• Offer a more open setting where people can be encouraged to ask questions in order to become better informed.
• Take part in moderated discussion and facilitated forums so that they learn more about the issues through debate with other people (with similar and/or different points of view).
• Have a built in audit trail of all the different ways they have allowed for intelligent consideration of their proposals.

Rethinking adequate time

Thinking digital first creates an ideal opportunity for public bodies to rethink what is meant by adequate time. In a primarily online environment, people can participate in more varied ways, faster and complete multiple “check-ins” not just one hit participation with a survey. This makes the consultation period a time for debate and reflection. The whole consultation window then becomes a deconstructed survey, where people offer their quantitative and qualitative opinions via multiple activities in one setting. For example, in discussion forums, through quick polls, questions and answers and only when they are ready by completing a more structured survey.

In a digital first environment public bodies can:

• Use time for the iterative production of content and deliberation of issues – there may not be one fixed narrative “the consultation document” for people to comment on.
• Make the whole process of participation a “deconstructed survey” rather than just a questionnaire available to complete at some point over a 12 week period.
• Allow people to check in to the debate multiple times, consider what has been said, reflect on the views of others and have their say.
• Do things quicker, but more intense and in depth by allowing for multiple forms of participation (replicating many traditional offline experiences like meetings and workshops).

Allowing for open and transparent conscientious consideration

Thinking digital first creates an environment which supports conscientious consideration.  There are more options for feedback using infographics, video, pictures, blogs and so on. The whole process of “you said, we did, we could not do” can be more engaging and targeted, for example, by sending e-newsletters to registered participants and followers of the consultation project and or publishing updates via a news feed and an online Q&A.

In a digital first environment public bodies can:

• Introduce more engaging forms of feedback, to demonstrate how they took consultation responses into account when making decisions and what they could and could not change. For example, using infographics, short video, pictures, a decision makers blog/vlog etc.
• Encourage participants to register to receive targeted feedback. For example, by the issue they are most interested in or the area where they live.
• Maintain a database of all responses and participant interactions showing how they were captured, analysed and summarised for conscientious consideration.
• Have an inbuilt audit trail, open for all to see, of their consideration phase (e.g. key dates, events and outputs) which not only meets the Gunning criteria but also builds trust in the consultation and decision making process.

Gunning Principles: A word of caution and a call to action

So, a digital first approach to consultation can clearly help public bodies stick to the letter of the law and adhere to the legal principles. Done properly, it will discourage successful applications for judicial review and help public bodies to defend themselves against successful claims which make it to court.

However, there is a considerable obstacle preventing many organisations from realising these benefits and this is the belief that online consultation is merely an online survey and a pretty website.

A simple survey of public consultations that are open to comment on this day will show you that too many organisations are adopting the approach of building a nice looking brochure website, saying all the right things about wanting people to get involved, but then letting everybody down by just offering an online survey.  On such sites there will be no place for deliberation, no environment for debate and no safe place for rational discussion. Go ahead, just put public consultation in a Twitter search and you’ll see what’s going on.

Perversely, this attitude to digital first, or digital by default, actually leaves these public bodies more at risk to successful legal challenge. Firstly, because they can’t align their digital approach with the Gunning Principles. Secondly, because people don’t feel that they can have their say, they don’t feel involved and quite frankly the consultation does not do what it says on the tin – so they feel like a legal challenge is their only option, or for some it is an opportunity; an easy route to stopping a decision they don’t like.

My challenge to consultation managers and senior decision makers is for them to call out lazy approaches to digital first public consultation, highlight the risks and promote the benefits which proper online participation brings to delivering fair and lawful public consultation.