Scrapping the ‘duty to involve’ - What difference would it make?

It only came into force in April 2009; no-one can say for definite whether it has made any difference. Yet there is quite an argument as to whether Mr Pickles’ announcement to scrap the ‘duty to inform, consult and involve’ will or will not damage the cause of public engagement.

The case for abolition

Like previous administrations, this Government is trying to wage war on unnecessary ‘bureaucracy’. To this end, it has criticised anyone and everyone who comes within its definition of ‘pen-pushers’, abolished quangos and exhorted Managers to protect the front-line, implicitly willing expenditure cuts to be made in support functions.

But it realises that it also needs to reduce the vast number of duties and regulations imposed upon our public bodies. When the DCLG last week revoked the Guidance about the ‘duty to involve’ it was directly responding to the LGA’s request to do so. Unusually at the moment, this was not a case of Government imposing upon Councils something they didn’t want. This is something local authorities in England actually asked for!

So why scrap the duty? • It was an unnecessary legislative embellishment. Good ‘listening’ Councils did so before 2009, and will continue to do so without the law telling them they need to! • The duty was pretty vague anyway. It only applied when the public body thought it ‘appropriate’ – a concept that was never (to our knowledge) tested in Court. • It reinforced the tick-box culture, where consultation and engagement took place for the wrong reason, and where the consultor had little intention or flexibility to be influenced. • True ‘localism’ places responsibility with local community leaders and elected members. If they want to inform, consult, and involve, that’s great. If not, let them reap the whirlwind if the public feels they make no attempt to ‘listen’. Postcode lotteries are going to be in, and will apply to public engagement as to much else.

The case for retention

Not all laws are intended for the same purpose. Some are just there to signal recommended behaviour, and to establish new ‘norms’ of conduct. The duty is a classic of its kind – a piece of ‘normative’ legislation designed more to help the citizen understand what to expect than to tell Councils and others exactly what to do!

Some members of the Institute have found it really helpful to help persuade Managers that they should engage with their service users and other stakeholders. Presumably, it is useful as a secondary argument: - “Even if I can’t persuade you that consultation is sensible, the law says you have to anyway ...”. But there are stronger arguments.

• It creates mixed messages. For example the Localism Bill is full of initiatives to engage people more often. Referendums will become a regular feature. So scrapping the duty seems curiously at odds with this; it is also against the spirit of the Big Society, which relies for its effectiveness on genuine and honest dialogue • Other Government policies for the NHS or Police Reform seem to focus on greater public engagement and accountability. Scrapping the duty seems totally inconsistent and begs the question of whether the Home Office and the DoH are following the same script as the DCLG. • It will give a license to ignore the public for Councils and others who wish to implement unpopular policies. Effective Managers know this is short-term gain at long-term peril

But the real case for retention is political. By removing the duty, the Government will commit a political own-goal that opponents will surely exploit. How can it talk positively of involving the public whilst dismantling the legislative imperative to do so? True, the duty may be weak and inadequate but is still represents a signal of what is expected of public bodies.

In a world where public faith in anonymous officialdom is low and getting lower, removing one of the few practical anchors that obliges them to listen to the public will merely confirm that politicians at the top just don’t mean what they say. Trigger points

• Tell us what you think. The Institute is keen to hear your views, and we recognise that there are two sets of arguments.
• Alternatively look at the debate being conducted on Davy Jones’ blog
• The change was announced in the Best value: new draft statutory guidance Consultation. See para.1 of Introduction
• For those in the Health Sector, look at the proposals for NHS Reform and the fact that Ministers seem set to retain the equivalent duty (per S.242 of the NHS Act 2006). Will this feature in the latest pause for dialogue?
• When can your decisions be challenged in the Courts for failing to consult properly? After our sell-out event last week, consider attending the next event on Legal Challenges to Consultation on 8th June in Manchester.

This is the 185th 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