Originally published 9 March 2015. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
With public consultations, the Lady Macbeth principle generally applies. “If … when ‘tis done, then ‘twere well, if were done quickly” (Act 1; scene 7)
There are many reasons for this. Not only should public bodies act decisively and minimise the disruption and uncertainties when significant policy or practice changes are in the offing. But also a shorter, focused debate is more likely to produce meaningful output and provide decision-makers with useful material to inform their decisions. The Institute always advises its clients that, provided everything is properly prepared, a consultation should go ahead and the public should be consulted as soon as practicable.
From time to time, there are delays for perfectly respectable reasons. Quite frequently, technical experts struggle to agree on their proposals; such disputes have been known to last for years! Or maybe the underlying policy context keeps changing. Or the numbers! Or the people! For certain, proceeding with a consultation without all the necessary preparation is a huge mistake. Stakeholders can always tell if proposals are half-baked.
But political delays are different. Some are well justified, and have become custom and practice just to protect our democracy. That is the situation with ‘purdah’ – a sensible equalisation of the playing field to prevent incumbent politicians from leveraging advantage from artificially contrived policy announcements or consultations. Elections need to be as free as possible from bias. What is less justified is when unelected public bodies take advantage of the hiatus to postpone decisions and stifle debate. It still seems somehow incredible that the Department of Health before the 2010 Election tried to cancel all Focus Groups in the NHS!
Right now, the Institute knows of a large number of public consultations that have been postponed until after the May election. Many are in Health and Social care – but there are others as well. In some cases, local leaders know full well what is on the agenda; in others there are nasty surprises ahead. What is clear to most Senior Managers in the public services is that the ‘low-hanging-fruit’ of easily-achieved, relatively pain-free expenditure cuts have now been plucked and the next waves of austerity-driven changes will be harder. Persuading the public will be an even bigger challenge.
Change will be harder because the substance of proposals themselves will less popular. But the process will also be harder, because both public and legal expectations are higher. Indeed, the next Government could do us all a favour by clarifying when it really wants the public properly consulted – and to influence what happens, as opposed to all those other times when Parliament unthinkingly (or so it often seems!) approved the draftsman’s insertion of a requirement to consult but never really meant it!
Okay that’s a supercilious statement. But Governments are going to find it hard to win legal battles when the Judges hold them to the specifics of their promises – or their hurriedly drafted legislation! Just look at the words of Lord Reed in the recent Supreme Court case on Council tax relief
“The purpose of this particular statutory duty to consult must, in my opinion, be to ensure public participation in the local authority's decision-making process.”
He was referring to Parliament’s insistence that Councils should consult on
“ …an important function in relation to local government finance, which affects its residents generally.”
And he concluded that “meaningful public engagement” required more of the consultor than had previously been assumed.
Now many commentators suspect that the Coalition Government had little or no intention of stimulating widespread informed debate about the new, reduced-value Council tax relief schemes. It just thought it would look good and (to be fair) support the concept of localism. However, the Judges took it at its word, and demanded a high standard of consultation practice.
Those now waiting, with their plans for changes to public services or new infrastructure developments being honed for implementation this coming Autumn might use the time to come to terms with these higher standards. An excellent example would be to look at the next round of local government budget consultations. After all, the Haringey case was about Council finances, and other recent judgments (such as Nash v London Borough of Barnet) demonstrate that campaigning groups can mount effective challenges if they think that important policy changes are being railroaded through without adequate public discussion.
Whether we talk of cuts in Council services, rationalisation of hospitals or even new housing developments, the consultations that take place in late 2015 will look and feel so different from those we did a decade ago. But they will also be more transparent, more honest, more accessible and, hopefully more participative. At their best they will stimulate more informed debate and help produce better decisions. At their worst, they will delay and divert their organisations, erode their credibility and fail to engage successfully with stakeholders and public. Our task is to ensure there are more examples of best practice and eliminate the worst!
TRIGGER POINTS
- Is your organisation planning a public consultation … once the General Election is over?
- Tuesday Topic 256, in March 2014 is called “The case against Purdah” and covers aspects of this subject in more depth.
- The Supreme Court case is R (ex parte Moseley) v London Borough of Haringey [2014] SC 56, and is considered in depth in the Institute’s comprehensive ‘Law of Consultation’ training course.
- Our brand new Masterclass is called Engaging on Public Service Budgets and has been developed specifically to help officials meet the increasingly demanding standards expected of Budget consultations.
This is the 273rd 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.