Originally published 1 June 2012. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
We live in uncertain times and with conflicting visions of our future. Right now it is as difficult to predict what will happen to the private sector as to the public sector. Amid the diverse predictions, there is but one constant – the overwhelming likelihood of change.
But, when it comes to public services, so many people are in denial. Change is unpopular. The NHS is discovering that long-standing patient pathways remain popular even when safer and better services are available. The police are in rebellious mood, and local authorities are fending off unhappy residents who are unwilling to suffer closures or service rationalisations.
Now, come the moment when the case for change is accepted – when the status quo disappears as a viable option, what then? The cry goes out that we must have fairness. It sometimes takes the form of political rhetoric. ‘We’re all in this together’ is the most well-known phrase, and all leaders use it, the inference being that if change is to happen, then at least it should be fair ... whatever that means!
In the current context there are two aspects to this pursuit of fairness. The first is through the Courts when applicants for judicial review claim that public bodies have not acted fairly in discharging their responsibilities. Administrative law is based on years of interpreting the rules of natural justice – giving people an equal chance to state their case – eliminating corruption and minimising the disadvantage that some suffer. But the other aspect is the progressive evolution of anti-discrimination legislation that has now culminated in the Equalities Act 2010.
This is where the real action is right now. Parliament is clear that it wants public bodies to act in ways that minimise the disadvantage to the ‘protected categories’ covered in the Act. Section 149 demands that decision-makers take ‘due regard’ of the need (inter alia) to promote equality of opportunity and eliminate discrimination. So when services are changed, those who believe that these considerations have been disregarded have a case.
They often have a very good case. In 2011, there was a whole series of successful legal challenges that turned on the inability of public bodies to demonstrate that they took equalities sufficiently into account. They ranged from London Councils cutting grants to charities, the Secretary of State for Education abolishing a Schools building programme and Councils making changes to Social Care and Library services. In most cases, an attempt had been made to analyse the impact on different groups, but not in a way that promoted adequate informed consultation, or could prove that enough was done to cater for these groups.
In truth, these cases should not have been lost, and there is concern that too many organisations are paying lip-service to the fairness principle. Mechanistic application of process, doing the minimum to stay legal and a tokenistic approach to equalities are all visible in places, and run the risk that consultations conducted by these bodies will fail to address the impact on various people. So many proposals have ‘winners’ and ‘losers’ and what the legislation requires is for us to be aware of who hurts most and to do whatever may be possible to avoid this discriminating against them.
Here’s the acid test. Do we know enough about those who are most impacted – and how they are affected ... and can we do enough to satisfy our obligations under the legislation?
That means more than just desk-research to write an analysis; it means more than adding up the numbers. It requires the design of specific engagement exercises and consultations that involve ‘protected categories’ from the outset. Involving seldom heard (please, not hard-to-reach any more!) communities in budget decisions from the start is one way to do this, but it needs specialist knowledge and a genuine commitment to the cause.
The trouble with fairness is that everyone is in favour till it becomes rather onerous. Yet we all agree that we feel happier about change if we can be sure that society isn’t being beastly to those who can least defend themselves. The decisions themselves are tough enough. But the least we can do is to ensure that the processes we observe help us act in the fairest way possible.
In short, we must manage change fairly.
This is the 213th Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement