Few public consultations are likely to arouse as much interest as that published by the Government Equalities Office on 15^th March, and which seeks to enable gay and transsexual people to become married.

Already however, opponents are calling this a ‘sham consultation’. A typical criticism comes from Colin Hart of the Coalition for Marriage who is reported as saying:

“…After … promising to include a question on the principle of introducing the same sex marriage it is clear from the written statement given to both Houses of Parliament by the Equalities Minister that she will simply ignore any answers to this question ….” (per the D. Telegraph)

 Having looked in detail at the Consultation document and the associated Impact Assessment, we have found:

• The document makes it very clear that the consultation is only about how to implement the policy – not about the decision itself, which the Coalition Government has already made. The words could not be clearer.
• It is equally clear that it does not intend to open up religious marriage to same-sex couples.
• However, and confusingly, it
  • Asks respondents (in Questions 1 to 4) whether or not they agree with enabling all couples, regardless of gender to have a civil marriage ceremony (which will be interpreted by most as being about the principle of the matter!)
  • Asks respondents (in Question 5) whether they agree with its decision not to open up the issue of religious marriage.
• The Impact Assessment (Section A4 on page 4) makes it clear that the public consultation is intended to seek views on the three options that have been identified. They are (per Section D):-
  • Do Nothing
  • Introduce equal civil marriage & retain civil partnerships
  • Allow civil marriage but remove civil partnerships
• Somehow, the consultation has emerged at variance with this, as the Government seems to have ruled out the ‘Do Nothing’ option
• An intriguing innovation is the following sentence:-

The Government’s response will take all responses submitted to this consultation into account, and will be based on a careful consideration of the points made in consultation responses, not the number of responses received. (Our underline).

We have never seen this before.

• The consultation commits to publish ‘a summary of responses, and a Government response on the way forward.’ However, there is no clarity as to whether these are separate (as they should be – the former being the Output Report, And the latter being the Outcome Report) or whether the Equalities Office might perpetuate widespread poor practice of rolling them up together and undermining transparency.
• In most other respects, the consultation appears to be broadly in line with the Government Code of Practice, except that it has not published any reference to the Code nor indicated that complaints/comments about the exercise should be submitted to the Home Office Consultation Co-ordinator (Par 6.6 of the Code)

The Institute View

• The Institute clearly has no view on the merits of the issues; our commentary is purely on the process!
• By any standards, this consultation will serve to confuse and antagonise. Questions 1-4 suggest that the Government is gathering views on the principle, yet says it will ignore what
• The Government faces further difficulty over Question 5 – for it strongly suggests that the Government is open to influence on the subject of religious marriage. If it is not, why has it asked the question?
• We are supportive of any attempt to stress that in a good consultation, it is not a matter of numbers for or against. But the wording is poor, for no specislist in consultations would totally disregard the figures. We just wonder whether this has more to do with dissuading campaigners – online or otherwise from collecting signatures etc

This Briefing is of relevance to Consultation and Public engagement staff or those planning significant policy-change within Central Government, the Devolved Governments/ Assemblies, Local Authorities, NHS and other public bodies – in short anyone needing to prepare a complex consultationRelevance

 Further insights

•  This Briefing was written by Rhion Jones, Programme Director of the Institute who may be available for discussion. Telephone the Institute Centre of Excellence in Biggleswade on 01767 318350
• There may well be a legal challenge to this consultation. The Institute runs a training course on The Law of Consultation (1^st May, 4^th July; 4^th October) and  regular Seminars on Legal Challenges to Consultations, enabling participants to hear directly from lawyers who have taken judicial review cases to the High Court. The next Seminar is on 27^th June  2012 in Manchester
• The best way to avoid mistakes in a consultation is to invite the Institute either to conduct a Risk Assessment or a fully comprehensive Compliance Assessment of a consultation. This not only provides quality advice to consultors on meeting Best Practice standards but also includes a public endorsement of the exercise.
• For further information on our public training courses, in-house courses and workshops, Contact Martin Roach

Briefing Notes are published by the Institute in good faith as a member benefit, but the information provided cannot be relied upon as constituting advice giving rise to any legal or other liability whether express or implied.

This is the 2^nd Briefing Note; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement