The end of Tokenism

If consultation standards have risen, who should take the credit?

This is a Summary of Rhion Jones’ address to the LG Comms conference in Manchester on November 6th

Back in 1969, an American academic called Sherry Arnstein published a Ladder of Participation which, to our dismay, has been taught in colleges and universities to this day. She was a respected, left-leaning, American academic who, in retrospect, produced work that captured her distaste for corporate power and suspicions of municipal and federal governments. She dismissed consultation as ‘tokenistic’, a label that has stuck in the minds of many critics and which has regularly led to calls to abandon what many people came to regard as an ineffective form of citizen participation in favour of something more concrete.

The trouble is, those alternatives are themselves hugely problematic. The Arnstein Ladder itself talks of placation, partnership and delegated power before ascending to the dizzy heights of citizen control. We have consistently preferred a more recent adaptation of Arnstein by David Wilcox in 1994, which recognises that one can go beyond consultation by deciding together, acting together and ultimately supporting other organisations to which power has effectively been delegated. All these models can, under certain circumstances, work effectively, so there is no objection in principle to any of them. Our problem was that branding all consultation as tokenistic was a gross insult to hundreds of professional policy and communications staff throughout the UK public service. If ever consultations were tokenistic (and some undoubtedly were) – they are not now!

In the sixteen years since the Institute began, there has been a visible improvement in consultations. Those involved have become far more familiar with best practice. Stakeholder identification and mapping has become routine, and there is now far more focus on pre-consultation activities. Decision-makers dare not ignore the output of a consultation, and the public’s expectations continue to rise. We are rapidly approaching the end of tokenism.

So to whom do we give thanks? Who can take credit for this sustained improvement?

Is this the result of three Government Codes of Practice (2000, 2003, 2008), their successors as Consultation Principles (2011, 2016) and their equivalents from the devolved administrations? We think not, especially as the 2011 version – initiated by Oliver Letwin in a burst of unthinking machismo – abandoned much of the more sensible advice its predecessors had offered. Consultation has improved in spite of – not because of Government standards!

Can the Institute take some credit? Maybe. We started to run one-day training courses in 2003 and have designed 40+ different courses over the years. We also ran regular seminars on topics such as “Engaging the Seldom-heard”. But then our members found it more difficult to travel far. Today, we rely increasingly on e-Learning and those with serious and controversial consultations use our Advice and Guidance or Quality Assurance services. But not everyone uses the Institute, so we should not exaggerate our influence.

The real game-changers have been the Courts.

Without a doubt, the fear of losing a judicial review has changed behaviour. Over-zealous Ministers and Managers, determined to steamroller their plans in the teeth of stakeholder objections have been persuaded that going-through-the-motions consultations are too much of a risk. The rules of consultation are now clear – if complicated. Some of them may have been formulated over thirty years ago, but recently significant cases have been heard in the High Court at the rate of over one a month. Claimant lawyers have become clued-up, and campaigners have found ways of raising money so that cost is not the impediment it once was.

What is more surprising is that Judges have responded to changes in society and matched citizens’ higher expectations of participation and involvement with a greater willingness to find for consultees if their ability to be heard is prejudiced. The law appears to move slowly. Courts can only rule upon key issues as cases are presented to them. Sometimes, decisions raise more questions than answers, and legal advisers indulge in the kind of guesswork around ‘What would a Judge say if our consultation was subject to challenge next month?’ Indeed, controversial judgments can lie on the table for years until subsequent cases clarify them, and we have a case in point right now. Five years after the Supreme Court judgment in Moseley v LB of Haringey, we have a recent case – Petsafe v DEFRA, where there is emerging clarity on the issue of publishing details of abandoned options. (See separate article.)

Slow it may seem, but in reality, the common law has, in historical terms, moved very quickly. In fifteen years or so, the scope for public bodies to defend a tokenistic consultation has almost disappeared. The concepts of ‘legitimate expectation’ and procedural ‘fairness’ have been used to quash decision after decision where the rules have been breached.

Obviously, the Institute promotes these rules, but best practice usually moves ahead of the law. There are still circumstances where a consultation can be awful yet lawful. Stakeholders and communities do not have to put up with the bare legal minimum. Public bodies which need to earn respect and support of their clients, customers, passengers, tenants or even citizens have to do more than just comply with the legal rules. That is why we all need to anticipate the evolving standards in public life. Why, when political trust is in short supply, the integrity of dialogue between the public and those who serve them is so important. Eliminating tokenism is part of that agenda, and whoever gets the credit for progress so far should beware complacency, for there is still much more to do.

TRIGGER POINTS

1. Can the term tokenism ever be applied to an from your organisation?
2. To what extent has your organisation kept abreast of best practice? Do you use traditional training courses or e-courses? Or are you using the Institute’s e-Learning products?
3. The Petsafe case is: [Electronic Collar Manufacturers Association & Petsafe Ltd v Secretrary of State for Environment, Food & Rural Affairs 2019 [EWHC] 2813](http://www.landmarkchambers.co.uk/wp-content/uploads/2019/10/Electronic-Collar-Manufacturers-v-SS-for-Environment-24-Oct-2019.pdf)
4. To understand the law of Consultation, consider attending one of the Institute's courses – available in one-day and two-day sessions.

This is the 353rd 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.