Somewhere between engagement and consultation

The fudging of accountability.

2020 continues to throw up novel situations and dilemmas that have previously not troubled us. Who might have guessed that on the day that this Topic is written, Parliamentarians are discussing whether to vote for legislation that wilfully breaches an international treaty whilst the ink is still metaphorically dry. And UK residents are urged to report their neighbours to the police if they are gathering in groups of six or more – having taken the household size into account. And they are disregarding children if in Wales or Scotland. In a similar vein is the growing difficulty of disentangling accountability for successes and failures.

This is not a rant against politicians – more an observation about the complexity of policy-making and its implementation. Politics has always encouraged its practitioners to welcome the plaudits that come with success and be rather more reticent when things go wrong. For central government(s), the traditional code of honour whereby Ministers carried the can for mistakes committed by their department, has long since vanished. More recent is the practice of firing the top civil servants, but this has recently occurred to everyone’s visibility in the Home Office and at Education … and in other places more discreetly.

The issue is less about attributing blame, but understanding what happened. Who said what to whom, and when? Who took decisions? And upon what basis? Were they fully informed when they did so? Political journalists love speculating about such things and revel in the inconsistencies and contradictions revealed. So, when the balloon goes up on the latest U-turn, recriminations are inevitable.

This is why the Institute has started to investigate the consultations that preceded some of the more important recent controversies. Here are two specific examples.

• The examinations algorithm. We looked at the consultation undertaken by OfQUAL and concluded that consultees (admittedly a minority) had identified many of the problems that ultimately made the policy untenable.There was little evidence that these arguments had been taken seriously. (See The algorithm blame-game; was it a flawed consultation?)
• The internal market. Before the publication of the Bill, there had been a short consultation but with an inadequate Report that disguised the opposition to the proposed powers to ‘disapply’ aspects of the EU Withdrawal Agreement. (See The rule of law impact)

In neither of these cases does the consultation clarify who may have been at fault. Neither do they tell the whole story, for the consultation was probably just one aspect of what went on.

It is merely part of a process that will involve dialogue at a technical as well as political level. There would have been considerable engagement between OfQUAL, for example, and the Department of Education. Many other stakeholders may have been involved; teachers’ unions, universities, academic experts and so forth. True engagement, in that much of it, was informal, inconclusive, semi-minuted and some, downright deniable. Quite the opposite to the formalities of consultation – with its precision and enforceability. So whereas we can point to a consultation – and highlight what people may have said, we have little knowledge of the extent to which Ministers and their advisers would have taken it into account. Maybe it was ignored. But, for all we know, they might have argued about consultee responses for hours. All behind closed doors.

Let us look at another example. For months, Ministers in all administrations have explained their decisions by asserting they are following the science. We now know that this was code for engagement with a body called SAGE – which, like many other Advisory bodies, is a collection of experts who argue amongst each other and proffer their advice in various ways. As with all such bodies, much depends upon who is in the room, how they are selected, what weight is given to what evidence, and how it is presented. There are legions of such committees, forums, advisory bodies and suchlike, many at local as well as national levels.

Many of them work really well because they are essentially a form of stakeholder engagement with the advantage of informality and flexibility. They are not burdened by strict rules of who presents what information, strict timescales and the accountability for considering responses.

The weaknesses of this type of engagement are that if things go wrong (e.g. when did the scientists suggest the full lockdown which occurred in March?) there is confusion, with different players keen to promote their version of what happened. It often degenerates into accountability by anecdote. Or who gets onto the Radio Four TODAY programme first. The media enjoys piecing it all together but inevitably, results in conflicting messages and disputed accountability.

In practice, decisions are increasingly taken through a mixture of formal consultation and informal engagement; the former, a detailed rules-based process and the latter, a flexible, largely hidden and unattributable dialogue which may only be clarified when Ministers or officials publish their memoirs years later.

The value of a good consultation lies in informing the engagement and decision-making. The better the consultation exercise, the less likely is an irrational decision or one full of unintended consequences. Current events may show that this is an optimistic viewpoint, but in general, the theory holds good. WE just need to watch this space …

TRIGGER POINTS

1. In your organisation, what is the balance between formal consultation and informal engagement?
2. Are there Advisory bodies in your organisation, and are they sufficiently transparent?
3. The legal enforceability of consultation is pivotal. It is no longer necessary to travel to attend the Institute's unique training course on the Law of Consultation. Just register here for the online e-learning course

This is the 363rd 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.