Andrew Blick and Emily Hamilton (London, Democratic Audit):This is a government that makes a thing of ‘consultation’, and a good thing too, you might think. Certainly there are loads of them nowadays. Government departments currently launch around 600 annually[1], with approximately 150 likely to be open at any given time. In this series of posts, we look at what has happened in practice in consultations in three areas: the question of nuclear power; English classes for non-English speakers; and quashing convictions. We invite readers of OurKingdom to add their experiences in the consultation, or non-consultation, processes, briefly or at length.
There is of course a lot of non-consultation, usually on really significant policy decisions, like the government’s plan to spend £3 billion to replace the UK’s 160 nuclear war heads announced to the arms industry at a time when we are told that money is in short supply at the Treasury; or even say, the long pre-meditated plan to invade Iraq or the decision to establish a supreme court (which preceded consultation). But as the official Cabinet Office document, Effective Consultation, says, ‘how and when the Government consults will depend on the circumstances in each case’. Quite so.
Governments are of course not obliged to conduct consultations on every policy. The Cabinet Office paper argues that, ‘It is right and reasonable that the Government sometimes takes policy decisions without any consultation and, on some occasions, consultation will not be considered appropriate.’
But let’s take consultation seriously. The same document, published in June 2007, defines it as ‘a form of engagement that is appropriate when the policy process is already underway and there is an intention to make changes or deliver specific outcomes.’ The document however stresses that consultation ‘does not invite an open debate on very broad areas of public policy’, meaning that government inevitably has a degree of discretion in how it sets the parameters.
Further, it does not ‘empower those who participate with the final decision.’ Obviously this is right, and especially so since the official targets for consultation exercises are ‘stakeholders’ - the Cabinet Office defines them vaguely as ‘those outside of central Government with an interest in the topics under discussion.’[2] Terms such as ‘interest’ can have multiple meanings – do they describe those who are curious, those who have strong feelings, or who have a material stake in the policy outcome? It is difficult to resolve such ambiguities, since there is no independent body for the qualitative oversight of consultations.
The government believes that ‘one would not expect the Government to launch a consultation on a policy that had been a manifesto commitment.’[3] Why not? Arguably, a complex policy promised in a manifesto is likely to benefit from the informed views that could be obtained through a consultation.
We discuss the official rules governing consultations below. But they of course apply only to open, formal processes. They do not tell us how government engages less formally and less openly with those interest groups or ‘stakeholders’ it deems to be of importance, and what the influence of this kind of process is relative to the more formal kind. The system of Public Service Agreements, which in theory provide the overall direction of government, are not set up on a basis of open consultation but follow a series of unpublicised approaches to stakeholders who may be suitable choices, but whose identity is kept secret.
The old Code of Practice
The Code of Practice on Written Consultation was first issued in November 2000. In January 2004 the Cabinet Office/Better Regulation Executive issued a revised version, intended in the words of the then Prime Minister, Tony Blair, to be ‘shorter and clearer’, entitled the Code of Practice on Consultation.
The six consultation criteria set out in the Code of Practice, which must be reproduced within all consultation documents, were at this point as follows:
- Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy
- Be clear about what your proposals are, who may be affected, what questions are being asked and the timescale for responses
- Ensure that your consultation is clear, concise and widely accessible
- Give feedback regarding the responses received and how the consultation process influenced the policy
- Monitor your department’s effectiveness at consultation, including through the use of a designated consultation co-ordinator
- Ensure your consultation follows better regulation practice, including carrying out a Regulatory Impact Assessment if appropriate
The Code states that it ‘does not have legal force, and cannot prevail over statutory or mandatory external requirements’ such as European Community law. But ‘it should otherwise generally be regarded as binding on UK departments and their agencies, unless Ministers conclude that exceptional circumstances require a departure from it.’ Ministers, it is noted ‘retain their existing discretion not to conduct a formal written consultation exercise under the terms of the code’, for example, ministers may engage in a closed consultation with only a few chosen stakeholders, as quickly as they wish, over a specialised issue.
Nuclear Energy
The code does not guarantee open and honest consultation by government, as its two consultation processes over nuclear energy have shown. Though the Code is held not to have legal force, however, it is possible for the judiciary to pass judgement on consultation processes and for other bodies to intervene. On 15 February 2008 the High Court delivered a judgement in Greenpeace v Secretary of State for Trade and Industry. Greenpeace had sought to challenge the government decision in the Energy Review Report 2006, The Energy Challenge, published 11 July 2006, to support nuclear new build as part of the future energy-generating combination for the UK.
Greenpeace noted that in the 2003 Energy White Paper, Our energy future – creating a low carbon economy, the government had promised to carry out full public consultation on the issue before it decided whether to change its position not to support nuclear new build. The High Court ruled that Greenpeace’s legitimate expectation had been frustrated, that the procedure was unfair and the decision to support nuclear new build was unlawful.
Justice Sullivan held that the consultation had been very seriously flawed. The consultation document Our Energy Challenge. Securing clean, affordable energy for the long-term was found wanting since it offered no proposals and contained insufficient information for those consulted to make a proper response. Sullivan found that on the issue of nuclear waste arising from new build, the consultation had actually been misleading in relation to the position of the Committee on Radioactive Waste Management, the draft report of which was published two weeks after the consultation had closed. Sullivan found that fairness required consultees to be able to respond to this new material.
Extraordinarily, the government’s pollsters tried to fix the following public consultation on nuclear power. In October this year, the Marketing Research Standards Board, that sets the standards for opinion research, found that the market research company Opinion Leader Research breached its Code of Conduct. The board said Opinion Leader ‘information was inaccurately or misleadingly presented, or was imbalanced, which gave rise to a material risk of respondents being led towards a particular answer.’ Greenpeace had filed a complaint with the Market Research Standards Board based on analysis of the polling questions asked to members of the public and the materials they were shown. Positive messages about nuclear power were made as statements of fact.
A consultation on consultations
In June 2007, the Cabinet Office issued a consultation on consultation practice.[4] It proposed three general options for ‘an updated consultation policy’, though stressed that other ideas or combinations could be considered [5]:
- Using a written consultation, plus one other method of consultation, such as stakeholder workshops, public meetings, citizens’ juries, expert panels, or online forums.
- broadly retaining the existing code but allowing for a fast-tracking of consultation periods in clearly defined circumstances.
- taking a ‘principles-based approach’ whereby the criteria in the code would be ‘replaced by core principles that would have to be taken into account by central Government departments and agencies when consulting on policy ideas or proposals.’
While option one seemed to oblige fuller consultation, options two and three both offered the government added discretion over the extent to which it consults, which would not necessarily be exercised to bring about greater involvement by the public.
Important points were raised in the 114 responses to this consultation and at various consultation events that were held.[6] Some argued that ‘the Government seems to consult when things are already decided’; some that ‘consultation should only happen at a stage when there are still elements of the policy to influence’; some that it should happen ‘earlier rather than later’; some that it was often unclear ‘what has already been decided and what has not’; some that it was hard to divine ‘what the process is’; some that greater transparency about the government’s plans for dealing with responses would be useful; some that the official feedback to consultation should go beyond merely summarising responses and set out how the consultation had affected government plans.
Respondents argued that ‘knowing exactly how the Government has got to the consultation stage and who the Government has talked to in getting to that stage would improve the process of consultation.’ Others supported ‘a longer-term dialogue, employing different methods at different stages.’ The 12-week minimum period was held to be vital to effective responses. There were concerns that the government sometimes took action or made announcements regarding the topic under consultation before publishing its response. Many felt that there should be attempts to improve access to consultation exercises for those potentially affected by the policy; people and organisations needed to be made aware of exercises on their launch date and that exercises should be designed around user needs.
Finally, there were complaints about the ‘lack of independent oversight and qualitative monitoring of Government consultations.’
In December 2007 the government issued its response to the consultation.[7] It promised actions including:
- To develop a new code which was clearer regarding the kinds of exercises and parts of government it was intended to cover.
- To ensure that the Code was in line with the compact between government and the voluntary and community sector.
- To carry out more research into the costs of consultation.
- To address the issue of ‘tick box consultations’ and ensure that consultation took place only when there was ‘a genuine desire to listen to stakeholders so as to develop more effective and efficient solutions. Clearly there is no point in consulting when everything is already settled.’
- To maintain the 12-week minimum period.
- To emphasise the importance of publicising consultations.
- To address the lack of transparency around what has and has not already been decided.
- o encourage impact assessments that form coherent parts of consultation exercises and are not just add-ons.
- To develop improved guidance on publicising exercises and engaging different groups and sectors.
- To investigate the feasibility of a single website indexing all central government consultations.
- To seek to bring about more transparency in decisions over the type of consultation to be used.
- To seek ways of reducing the burden on consultees.
- To revisit the issue of training for officials conducting consultation exercises.
- To explore the idea of ‘independent, qualitative monitoring’ of government consultations.
A national framework for greater citizen engagement
The government has plumped for the option, put forward in June 2007, of using additional forms of consultation, as well as the written type. In July 2008 the Ministry of Justice issued Michael Wills’s discussion paper setting out the case for a ‘framework for the use of engagement mechanisms by national government’[8], as a counterpart to their use at local level. The government noted the pressures that representative democracy (to which it reaffirmed its absolute commitment) was undergoing:
- declining public membership of political parties;
- less participation in politics and formal activism amongst disadvantaged groups; and
- social, economic and technological changes meaning a less deferential relationship between government and citizens.
The paper advocates ‘a more dynamic relationship between government and the public.’ Issues that might benefit from greater public participation included: constitutional change; where individual action is needed in addition to government, such as over climate change; where there are several policy options and the government is open-minded; when there is public benefit in exploring complex and difficult trade-offs, for instance between cheap air-flights and the reduction of carbon emissions. The criteria for engaging mechanisms are to be:
- Registering with the appropriate public;
- being as broadly representative and accessible as possible;
- being credible so people believe they matter; being open and transparent;
- being systematic and embedded in the policy process; and
- being consistent with principles of representative democracy.
The mechanisms on which this paper invited views were; referendums [sic]; Citizens’ Summits; Citizens’ Juries; and petitions to Parliament.
Referendums
Only one national referendum has ever been held in the UK, on continued EEC membership in 1975; various sub-national referendums have been held; and some are provided for under statute, over setting up regional assemblies, independence for Northern Ireland; and extending the powers of the Welsh Assembly.
The Government regards referendums as not binding upon Parliament; and as unnecessary where a policy has been a clear manifesto commitment.
Citizens’ Summits
These usually involve 500-1000 people, broadly demographically representative, deliberating over an issue or issues, face-to-face or online.
Departments would fund them and determine the terms of reference, retaining significant influence; Parliament would not be bound by their recommendations.
Citizens’ Juries
Independent forums, tending to be smaller than summits (50-100), for demographically representative group of members of the public to consider a range of policy options over 1-2 days, taking evidence from a variety of sources.
Departments would be able to publish their assessment of the criteria in advance of juries being held; outcomes would not be binding.
Petitions
The government refers to the system in the Scottish Parliament whereby a committee exists to determine the action to be taken on a petition.
At present, parliamentary response to petitions is negligible, and the Procedure Committee has failed to produce adequate reform proposals.
The new Code of Practice
In July 2008 the government issued the new Code of Practice on Consultation. It has seven criteria as opposed to the previous six. Important additions are the requirements for exercises to be held ‘at a stage when there is scope to influence the policy outcome’ and for greater transparency around policy formation processes – though how such rules can be enforced is unclear. The criteria are:
When to consult
Formal consultation should take place at a stage when there is scope to influence the policy outcome.
Duration of consultation exercises
Consultations should normally last for at least 12 weeks with consideration given to longer timescales where feasible and sensible.
Clarity of scope and impact
Consultation documents should be clear about the consultation process, what is being proposed, the scope to influence and the expected costs and benefits of the proposals.
Accessibility of consultation exercises
Consultation exercises should be designed to be accessible to, and clearly targeted at, those people the exercise is intended to reach.
The burden of consultation
Keeping the burden of consultation to a minimum is essential if consultations are to be effective and if consultees’ buy-in to the process is to be obtained.
Responsiveness of consultation exercises
Consultation responses should be analysed carefully and clear feedback shouldbe provided to participants following the consultation.
Capacity to consult
Officials running consultations should seek guidance on how to run an effective consultation exercise and share what they have learned from the experience.
Next: Paul Dorfman on consulting on nuclear power
Notes
[1] Cabinet Office, Effective Consultation, June 2007, p.15.
[2] Cabinet Office, Effective Consultation, June 2007, p.8.
[3] Cabinet Office, Effective Consultation, June 2007, p.7.
[4] Cabinet Office, Effective Consultation, June 2007.
[5] Cabinet Office, Effective Consultation, June 2007, p.19.
[6] See: Department for Business, Enterprise and Regulatory Reform, Effective Consultation, Government Response, December 2007.
[7] Department for Business, Enterprise and Regulatory Reform, Effective Consultation, Government Response, December 2007.
[8] Ministry of Justice, A national framework for greater citizen engagement, discussion paper, July 2008.