The dash for devolution - Are changes to local government in England and Wales the latest examples of ‘too little and too late’ consultation

Ever since Gladstone was called an ‘old man in a hurry’, there has been scepticism of politicians moving too quickly and overlooking the benefits of consultation in their anxiety to change things quickly. Anyone who heard Professor Anthony King at our recent Conference would have heard him criticise our pattern of transient Ministers – and, hilariously, the ‘limited’ Parliamentary gene pool from which they are chosen. As co-author of The Blunders of our Governments, his point of course was that politicians often have short Ministerial lives and tend to be in too much of a hurry to get things done.

Spare a thought, therefore, for two politicians right now; one in Wales, and one in England. Try to cast aside any party political bias. Let us just consider the dilemmas they face as they pursue what they think are the right policies.

In Wales, Leighton Andrews is Minister for Public Services and is determined to reduce the number of local authorities from 22 to about 6 or 7, and has just secured passage of a Bill to facilitate the merger of some of the existing Councils. The entire debate has predictably alarmed Councillors, fearful of losing their positions, with arguments about democratic accountability pitted against technocrats and bureaucrats seeking cost savings through amalgamations and economies of scale. The new Bill says that Councils will have to consult the public before such mergers take place, but so far no-one seems to have been consulted; to date it has been a dialogue between officers and politicians. An exasperated Mr Andrews faces a wait until 2020 before the changes might take place, and may well blame the need to consult for some of the delay.

In England, George Osborne is determined not to wait that long. Indeed, by then he hopes to be PM! It may explain the haste to build the Northern Powerhouses, starting with the ‘devolution’ deal offered to Greater Manchester before the General Election. Since then more powers have been offered to Councils all over the country – not just in the conurbations that were previously administered as a single unit. Everyone seems to like having more powers, but not necessarily the strings attached, and pressure groups such as ‘Keep our NHS public’ fear that the Government will use integration with the NHS as a cost-reduction tactic whilst passing the blame for service reductions to local politicians.

One need not take sides in this debate to realise that every citizen in a locality has a direct interest in the outcome. It raises the age-old conflict between the economics of service delivery and people’s sense of local identity and affinity. It is inevitable that they will want to influence what happens – whether through a formal consultation or via a multitude of engagement techniques. So far such engagement has been pretty inadequate, but no doubt Council Leaders negotiating with HM Treasury will say that they need to develop the details of the deal before offering it for consultation to their local communities. In the meantime, claims of ‘democratic deficit’ resonate from Cornwall to Tyneside, and consultation cannot be much longer delayed.

So can we establish some parameters? How about these five principles to start:

• Communities subjected to changes in representation must continue to have the full protection of Boundaries Committee consultative provisions – and that these cannot be over-reliant upon website-published information (Breckland DC v Boundary Committee, 2009)
• Councils must observe the 1999 Best Value principles that important changes in the way in which they administer themselves have to be consulted upon (Nash v LB of Barnet, 2013)
• Leaders and Cabinet members must seek to consult the wider public and key stakeholders if they are considering the surrender of (or sharing of) significant powers currently vested in the Council.
• The public must be offered some choices. Offering a fait accompli single-option consultation on changes to local authority structures would almost certainly invite legal challenge following the Supreme Court judgment in 2014. (Moseley v LB of Haringey)
• Failure to consult, or an inadequate consultation would also be challenged as Courts would probably decide that the doctrine of legitimate expectations would apply to such changes to local government

Now is the time to consult – before proposals become too finalised. Waiting until all the details are settled would risk challenge under pre-determination (Gunning Rule one). That, however, is a legal technicality. The bigger dangers are a further weakening of public confidence in vital local democratic structures, the suspicion that no-one is really listening to local voices, and worst of all that nothing anyone says in one’s own locality can prevent a Whitehall policy juggernaut from trampling all over them.

Ministers in Wales may envy the Chancellor’s dash for devolution, but in the longer-term the Welsh approach of insisting on consulting the public may prove the wise course.

TRIGGER POINTS

• Changes to local government affect many other public services including Police, Fire & Rescue, and of course the NHS. It also affects the voluntary and community sector or even town planners? Do they affect you? Will your organisation need to engage or consult?
• Institute Briefing Note 15 is called English Devolution – the Democratic Deficit and has been written by Davy Jones and John Tizard. This is currently available to Institute members or on request from Martin Roach on hello@consultationinstitute.org or 01767 318350.

This is the 284th 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.