stakeholders

The prelude to consultation - notification

Notification is not itself a form of consultation, but it is a prelude. The distinction is apparent in the UK Highways Act (section 105B) which provides that:

“Notice of the environmental statement must be published so as to ensure that members of the public who are likely to be concerned are given a reasonable opportunity to express their opinion before the Secretary of State decides whether to proceed …”

There are two concepts there:

• publication of a notice (notification);

• opportunity to express their opinion (consultation).

The means of giving notification should vary according to circumstances. A public advertisement in a government gazette or a newspaper advertisement is commonly required. Notification on a website may often be more appropriate. A proposed property development in Victoria, Australia which requires a planning permit is notified to the public by a sign displayed on the property.

Legislated consultation requirements

Government decision-makers, like everyone else, must comply with the law. Acts of Parliament, once succinct and oriented to the obligations of non-government actors, are increasingly prescriptive and increasingly they impose obligations on government decision-makers.

Many laws now require decision-makers to consult with stakeholders before making administrative decisions. Where should a road be constructed? Should a building permit be issued?

In some cases the stakeholders are specifically identified. The UK Highways Act 1980 (s. 26(3)) requires local road administrators to consult with other local authorities, as follows:

“A local authority shall, before exercising any power under this section, consult any other local authority or authorities in whose area the land concerned is situated.”

A provision such as this is something of a gentle reminder to a road authority. Minimal, or formal, compliance would not be difficult to achieve - a phone call might suffice. For this reason a performance standard should be specified to ensure that notification is effective and consultation is substantive.

Three phases of consultation

The development of a government proposal often requires two phases of consultation, separated by a period during which the government establishes a position on which it seeks to obtain a consensus. A full consultation process, then, is as follows:

• phase 1 consultation: identify stakeholders and seek their views;

• deliberation: develop the proposals taking into account phase 1 consultation outcomes. During this phase government develops or refines a position on the issue;

• phase 2 consultation: develop consensus around the developed proposal. This might occur at a stakeholder workshop.

Consultation on a proposal is distinct from what comes before (notification) and what comes after (implementation).

Stakeholder engagement planning

Governments engage with stakeholders frequently (or should). To ensure that engagement is as good as it can be with available resources a stakeholder engagement plan can be useful. An example of this is the Australian Government’s “Stakeholder Engagement Plan: Step-by-step template.” The template, intended for use by members of the Australian Public Service:

“… has been designed to help plan your engagement and provide step-by-step chronological guidance to tailor your specific engagement to your outcome objectives.”

It is interesting to compare and contrast the APS template with our concept of three phase concept stakeholder consultation preceded by notification and followed by implementation. The APS template identifies four “key ways the APS engages” (the numbering is ours):

1. Share: “When government needs to tell the public about a problem or solution.” We would describe this as notify stakeholders of a proposal.

2. Consult: “When government needs to gather feedback from the public about a problem or solution.” We would describe this as phase 1 consultation - gathering information and identifying stakeholder views.

3. Deliberate: “When government needs help from the public because a problem involves competing values, and requires trade-offs and compromise.” A deliberation period provides opportunity for government to establish a developed position, taking into account the outcomes of Phase 1 consultation.

4. Collaborate. “When government needs help from the public to find and implement a solution.” This is a mash-up of phase 2 consultation (building consensus around proposals) and socialisation of new, settled policies as part of the implementation processes.
   

Seeking out stakeholders and consulting

Stakeholder consultation - whether in phase 1 or phase 2 - requires government to identify stakeholders and to consult with them.

Stakeholder consultation is inevitably constrained by resource availability. Generally it is not possible to interview all stakeholders nor to conduct statistically valid opinion polls.

Conversely, it is not adequate to only listen to those with the loudest voices, who may be unrepresentative lobbyists. Having an opinion is not the same as having a stake in the outcome.