WANTED… more consultations like this!

Post-implementation reviews should require consultation

There are many kinds of consultations.

In the field of public policy-making, we normally consult at the stage when options have been developed and where the involvement of a wider audience of stakeholders or the general public will be helpful. It has long been recognised, however, that there is a strong case for going back to those whose views were gathered at the start, and asking them for their opinions once the enacted policy has been properly implemented. The post-implementation review (PIR) is a long-standing feature of best practice project management – being the opportunity to learn lessons and avoid repeating similar mistakes. Arguably it took too long for public bodies to adopt the same approach, but in principle, everyone today signs up to the wisdom of the method.

A recent example is the consultation that was launched on 29th January on the subject of Tobacco-related Regulations. It is not a particularly good consultation, though we have seen much worse. A smoker who completed the online questionnaire at our request expressed surprise that whereas he had been asked about his age, his ethnicity and even his income, the Department of Health & Social Care (DHSC) did not want to know if he was, or had been a smoker. This is despite the main thrust of the questions seeking views on whether the Regulations were meeting their objectives of deterring young people from starting to smoke or encouraging existing smokers to quit—all sensible matters to review.

So it is a rather good idea to re-visit legislation. Politicians have frequently been accused of being in a hurry to do something, and then relax once new laws are placed on the statute book. Job done. To get them there may have involved consultations, policy assumptions, impact assessments and funding calculations. Many are hopelessly wrong – leaving their successors to pick up the mistakes – which are repeated by one generation after another. Attempts to persuade the civil service juggernaut to undertake PIR as a matter of course have been intermittent and half-hearted. In 2018 the Department of Business, Industry and Regulatory Reform published a document called Producing Post-Implementation Reviews (PIR): Principles of best practice. It is reasonably good guidance and specifies five key questions that should be addressed:

• To what extent is the existing regulation working?
• Is government intervention still required?
• Is the existing form of government regulation still the most appropriate approach?
• What scope is there for simplification, improvements?
• If this regulation is not required, but government intervention in some form is, what other regulation or alternatives to regulation would be appropriate?

One does not need a degree in confirmation-bias to notice that they are designed by someone very keen to de-regulate, though in the next-level down, there are helpful questions such as “Have there been any unintended effects?” or “What are stakeholders’ views on implementation? “

The question arises – who makes these judgements? Should it be Ministers and civil servants who might well have a vested interest in declaring some legislation a success or (if there has been a change of Government) a ‘failure’, or should it be an independent body such as the National Audit Office? Should there be a consultation – and an opportunity for those who had an influence upon the original decision to comment on its impact in practice?

Where currently there is a PIR consultation, there is usually a good reason. Astute members will have pricked up their ears at the mention of Tobacco Regulations. It was one of these – on the packaging, that led to bank-bursting judicial reviews as the industry en bloc sought to argue that Jeremy Hunt, as Health Secretary had not given conscientious consideration to the paid-for evidence it had submitted as part of the prior consultation. The Department, knowing how its every move was, and continues to be scrutinised by the tobacco firms, inserted a Review clause into the Regulations. It requires the Minister to review their implementation – with a report, the first of which has to be published by 20 May 2021. Hence the current consultation.

Note, however, that there is no mention of a consultation in the Regulation. Only a Review. So why has the DHSC chosen to consult? Probably because it rightly judges that the response of stakeholders and the public will be to endorse its implementation and agree that it has improved public health. It will also help fight off any challenge from the tobacco firms.

There are other interesting examples. Last year saw the culmination of a comprehensive PIR into the controversial scaling back of legal aid in 2012. It is a massive 290-page tome of undoubted scope, and informed, we are told, by ‘three rounds of consultative group meetings with a range of interested parties’ and ‘tasked with considering the impact of the 34 major reforms’ and there were Roundtables. It adds, ‘The Ministry also received evidence submissions from over 80 organisations which have been carefully considered to inform this review.’

There is little to explain how they were selected; they are listed - so that is a tick in the transparency box. We assume that this was a typical ‘call for evidence’, such as is often used for Parliamentary Select Committees. But why not consult? It would protect Ministers from allegations of selective listening. Moreover, consultees have rights that can be enforced in the Courts. Those who submit evidence have nothing but the hope that decision-makers will give their views sufficient consideration.

Many ‘Regulators’ already use PIRs – often as part of pre-planned regulatory reviews; an example would be OFWAT’s price review which is statutorily prescribed to be at five-year intervals. But far more public bodies should undertake PIRs. Huge sums of public money are invested by Executive Agencies, local authorities and the National Health Service. Not all of them are implemented quite as envisaged. Some cost more or achieve less. There are winners and losers; Some stakeholders benefit unexpectedly; others suffer by accident or serendipity. A responsive society that asks beforehand should also ask if people are satisfied with the delivered outcome. If Apple Corp wants to know your view of the latest iPhone and whether it implemented its product launch well, public services should show a similar interest.

The Tobacco consultation is far from perfect. But we need more like it.

TRIGGER POINTS

a. The current exercise is A consultation on the Tobacco and Related Products Regulations 2016 and the Standardised Packaging of Tobacco Products Regulations 2015. It closes on 19th March 2021 click here to see.

b. The BEIS document is called Producing Post-Implementation Reviews (PIR): Principles of best practice and is available click herefor more information.

c. The Legal Aid PIR document is called Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Click here.

d. For another example of an interesting PIR, consider the 2017 review of neighbourhood planning which drew significantly on previous consultations since its first enactment in the 2012 Localism Act. Click here.

e. Many public bodies– not just central Government have scope to initiate PIRs and can organise cost-effective consultations to inform their conclusions. Are you in such an organisation?

f. The Institute's extensive range of training and advisory services can help members and supporters on best practice consultations – including in scenarios such as these.

This is the 368th 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