Not quite force majeure - When events appear to compromise a consultation

Three quite separate and seemingly unrelated situations arose in one day last week.

• The Government’s decision to provide transitional help for Councils who are currently in consultation on new Council tax benefit schemes. The extra £100m just announced may indeed be welcome (it’s equal to about 25% of the 10% cut in the available money) but throws a question-mark over the consultation. If legally challenged, can Councils claim that their options would have been the same, and consultee responses unchanged had the new, different figures been available? In short, does it invalidate the exercise? Horror of horrors – might they have to do it again?

• DEFRA’s expected decision to ban imports of ash trees. It comes as environmentalists, farmers and countryside lovers are increasingly anxious about the Chalara fraxinea disease, and just as an eight week consultation comes to an end. The Minister says he will digest consultee views over a couple of days and possibly propose legislation within hours. So clearly something has become very urgent, and maybe the consultation narrative has changed. Does this invalidate the consultation? Or is it now irrelevant?
• A part of the NHS we know well is wrestling the operational challenges of the coming winter. Gone are the days when budgets enabled sufficient cover for unexpected absentee levels, and temporary closures of wards or service withdrawals are a distinct possibility. The trouble is that the NHS is already in the midst of extensive consultations that propose a range of changes – including the very closures which may now become urgently necessary. Where does that leave the consultation? Have they been wasting everyone’s time?

Of course these are very different scenarios. They may not quite be what insurance companies call force majeure, but they have in common a legitimate question-mark over the validity of current ‘set-piece’ consultations.

In all three cases, the original urge to engage with key stakeholders is perfectly correct but, in the time it took, something important changed. There is nothing new in that, but we now live in a world of ever-quicker change. The ‘policy-life-cycle’ has stopped taking years – at times it can now run full cycle in weeks - and the progress of a debate can move so rapidly that even seasoned social media operators like the BBC get it wrong.

The new Cabinet Office principles are right to move away from excessive reliance on the 12-week formula but, as important as the duration of a consultation, is the nature of the dialogue. A traditional formula of publish, sit back, receive and collate is of little help in the type of situations described above.

What does help is to build such excellent relationships with key stakeholders that it becomes possible to (metaphorically at least) sit down with them and discuss important developments. The new Civil service reform plan points in this direction, but whether the top mandarins realise that this takes time and money is questionable.

Even with an ability to deal directly with key stakeholders, or maybe because of it - some will claim that consultations are, therefore, a waste of time. In brief, if you’re going to ban ash trees anyway, why bother to have consulted? It is an argument we will hear regularly as the pace of change leads to unexpected events that may cut across more considered engagement exercises.

It is important to rebut this argument, and to stand up for consultation. But the case for the defence relies upon consultation being done well – and done early. In respect of all three examples quoted in this Topic, we can argue that the real problem was that consultation had begun too late. Hindsight is useful, but anyone with extensive experience of this field will acknowledge that going early is better than going too late. Making it more likely to satisfy a Court that Gunning Principle One (... proposals have to be at a formative stage) is being observed. It also allows Managers to know at least some of the views of consultees. This knowledge is what we call the evidence-base. Hence “evidence-based policy-making”

Here is the nub. It is always better to know what people think than to decide important matters in ignorance. In our three featured scenarios, sceptics may argue that these views make no difference. In practice, wise Managers always take stakeholder opinions very seriously - it just happens that we seldom publicise the extent to which proposals are modified as a result. If consultation has been done properly, and those voices that need to be heard are in fact properly considered, it becomes a basis for better decision-making. So, even when the unpredictable, the awkward, the untimely and the down-right unlucky happens, consultation is still one of the most useful steps to have taken.

This is the 223rd 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