Consultation fatigue is a reality in law reform
Panellists at the Law Reform Commission’s (LRC) recent 50th anniversary conference discussed challenges around the process of consultation in Britain, Australia and Ireland.
The Scottish Law Commission published on the mental element in homicide, including a draft homicide (Scotland) bill, on 25 September.
At the conference (19 September), Lady Ann Paton, chair of the commission, explained the difficulties the project faced.
“When our discussion paper on this went out, it attracted loads of responses from judges, solicitors, advocates and barristers, academics, the police and so on – but we got no responses at all from members of the public,” she explained.
Advised to get public input
“At that stage, we thought perhaps we should just proceed with the draft bill, but we were strongly advised by criminal law experts that we needed some input from the public, otherwise, the Scottish government simply wouldn’t be interested in our recommendations and wouldn’t take the project forward.”
After exploring various options, and with a modest grant of £50,000 from the government, the Scottish Law Commission settled on partnering with a private company specialising in qualitative surveys.
The rigorous procurement process took about a year until BritainThinks was on board.
“Due to limited funds, in the end we were only able to approach 36 members of the public, who I’m afraid had to be paid to be involved.
“This was supposed to be representative of the population. I found the whole thing quite daunting, difficult and time consuming,” said Paton.
Relationships key
In his experience of the commercial sector, David Hertzell, senior counsel at Britain’s Law Commission, noted that engagement is not an issue.
“Whenever we start a project, the stakeholders are all over it like a rash. It’s absolutely no problem getting engagement, because of course they want to lobby on the issues concerned.
“They want to look after their particular interests, so the problem we have is managing that process, rather than trying to get responses,” he said.
Hertzell believes law reformers need to be careful about how they liaise with people during the consultation process.
“We have a lot of online consultation meetings, but we do try to do some in person, particularly with representative organisations and associations.
“You really do need to have that kind of engagement face to face so you can feel the temperature of a room and tell when something is going well or not.
“The other problem online is that a lot of people will just stay quiet if they don’t know each other well,” he commented.
“I think we’re still very much in a learning phase in terms of finding the right balance between online and face-to-face meetings and we still don’t really know where artificial intelligence will take us. But, at the end of the day, really, it’s all about relationships and building trust so stakeholders are prepared to engage with you.
“Do they think you’re genuinely consulting or just ticking boxes?”
Need to be flexible
Dr David Plater, deputy director of the South Australian Law Reform Institute based at the Adelaide Law School, highlighted the need to reach out to traditionally-overlooked constituencies when undertaking public consultations relevant to them.
“Michael Kirby, former Justice of the High Court of Australia, who’s now in his 80s, once said modern consultation on law reform must do more than round up the usual suspects,” he said.
“What Justice Kirby termed ‘consultation fatigue’ is a real problem, and yet consultation in law reform is absolutely vital.
“It needs to be independent, flexible and multifaceted to adjust to a particular audience.”
Plater described the LRC’s work on its adult safeguarding report published in April 2024 as “amazing” in this regard, in the way it reached out to the disability sector and aged-care groups.
Focusing on his own jurisdiction, he cited current work on a reference looking at the bail law in South Australia, which has a huge implication for domestic violence, particularly for Aboriginal communities.
“Sadly, Aboriginal communities are very overrepresented in the Australian criminal justice system and in prisons. Any consultation on the bail law was going to have to be culturally appropriate, flexible and inclusive,” he explained.
“As one elder explained to me, consultation with indigenous communities must be honest, respectful and ongoing. In other words, they like to know their voice has been heard, not necessarily that you agree with everything they say. This means going back to them once the report has been publicly released, or just beforehand.”
Plater said that, as a small law reform body, it has moved away from traditional issues papers which can tend to be up to 300 pages long.
Pithy fact sheets
“Certainly, they’re valuable, particularly for more technical or expert references. But we now find that even experts and lawyers prefer short, pithy fact sheets and one or two pages per question or per theme.”
LRC Commissioner Richard Barrett said consultation is inherent to the scientific approach to a law reform project.
“Because the science and context of consultation changes, you have to adapt to the changing methods and also the expectations that consultation gives rise to,” he said.
“You have to design your questions to get the best possible responses and also avoid a trap, whereby the people you’re talking to think you’re going to give focus to a particular area and then, maybe, after analysis of all the material, you end up going in a different direction.”
In the LRC’s experience, consultation exhaustion is a reality in Ireland, he added.
Lose interest
“It makes me wonder about the validity of the long list of questions. You can have issues papers or consultation papers with 70-80 questions. Even the strongest character will lose interest,” Barrett commented.