Goodbye tick-box; hello your honour! - Will the new Cabinet Office Consultation Principles’ attempt to end the tick-box habit result in a bigger role for the Courts?

The infamous tick-box gets the blame for a lot. In the world of consultation, it is a regular refrain, with two different meanings.

One is the criticism that the consultation isn’t a really serious attempt to listen at all – the consultor is just ‘going through the motions’, because the organisation is expected to undertake such an exercise. In other words, it’s just a tick-box exercise. The other is a complaint that instead of a genuine dialogue, what happens is a bureaucratic process with mechanistic adherence to a list of requirements, regardless of their relevance to the circumstances of the moment. It’s just a tick-box exercise!

Now the new Cabinet Office set of Consultation Principles (whatever its other shortcomings) seems destined to challenge both patterns of behaviour, and in these respects deserved support.

For the first time, Government is signalling a desire to reduce the absolute number of consultations. In three places, the Principles mention that it may not always be necessary to hold such an exercise, and it provides examples of when a decision might be taken to dispense with consultation. They include: • Minor or technical amendments ... • ... to regulation or existing policy frameworks • When necessary to deal with Court judgments • Where adequate consultation has taken place at an earlier stage

Read between the lines, and the inference is clear. There have been too many occasions where decisions are effectively already made, and so there is little purpose in listening to anybody. To the extent that this will stop the dishonest practice of inviting views when there is nothing to influence, we give Three Cheers. But will politicians and civil servants be brave enough to admit that they have already decided? Or will they continue the charade just to avoid criticism?

There are exceptions to this new ‘Don’t consult if you’ve decided...’ rule. • Where there is a statutory or other legal requirement to consult • Where the issue comes within the scope of the Compact between the Government and the voluntary and community sector So the discretion to dispense with consultation may not be exercised all that often.

The second change is the clear message from the Consultation Principles that the old rules must give way to a more flexible approach, more tailored to the subject-matter and the stage of the policy-making life-cycle where engagement is sought. The most eye-catching example is the relaxation of the default provisions for consultation timescales. Whereas the 2008 Code of Practice and its predecessors had all followed the ’12 week’ rule the Cabinet Office surprised many by stipulating that, in future a typical consultation could last anything from 2 to 12 weeks. Other aspects have been significantly relaxed. No longer is there a requirement for consultation-phase impact assessments; there is no mention of public opposed to stakeholder consultation and, most disturbing of all, there is no longer any requirement to provide feedback.

So if you are a Government department in England – or a ‘public body’ – the list of boxes you have to tick has suddenly become fewer. But before rejoicing in this new-found freedom, let us think a little more deeply about this.

Consultees – or would-be consultees, may still want to pursue their arguments and, if they believe they have been denied an opportunity to express their views, they may take their case to the Courts. Similarly, consider the case of campaigners who believe they were not given enough time to participate in a consultation. They may also conclude that their best action is to seek a judicial review – letting a Judge decide whether it the decision of the consultor organisation was reasonable. There was recently just such a David and Goliath case when the parish of Halebury successfully persuaded a Court that the District Council gave it insufficient time to consider a planning application for a warehouse in the Green belt. It’s become known as the Amazon Shed case, and will be an important precedent.

In a nutshell, a likely consequence of loosening the Government’s own rules may well be to hand over influence to the Judges. This is not necessarily a good thing. Their decisions are not always predictable, so we introduce uncertainty into the world of consultation. Neither are they the right people to define best practice.

In contrast, by working with practitioners, local Councillors and civil servants, the Institute is in a much better position to make these judgements, and it is one reason why we believe our Compliance assessments will continue to become the best way to be assured that the consultation is as good as it should be.

The Institute’s new Briefing Paper, Putting Principles into Practice attempts to provide an authoritative analysis of the new document and to help practitioners come to terms with changes of emphasis that may require different working practices.

Trigger Points

• The Institute’s Briefing Paper Putting Principles into Practice (Briefing Paper 32) has already been sent to Institute members.
• The Amazon Shed and other cases will feature in our Legal Challenges event.
• To discover how you can also use the Institute’s compliance assessment methodology to gain the Certificate of Best Practice for your consultation – call Martin Roach on 01767 318350

This is the 219th 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