Originally published 31 July 2012. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
This is the fourth attempt (over 13 years) to prescribe a set of rules for Government departments and other public bodies to conduct public and stakeholder consultations. And in many ways it is the most interesting, for it needs to cope with a very different world, and meet the admirable goal of being more succinct, less bureaucratic and generally more practical than its predecessors.
With a fraction of the time allowed for earlier exercises – which included the Yes Minister scenario of a ‘consultation about consultations’, the authors have done a creditable job. In one important respect they have solved a dispute that has rumbled for years – namely which organisations are and which are not covered by the principles. Under the second Code (2003) no-one could agree whether the NHS was bound by it or not and, when the Third Code was published, an unsatisfactory compromise was adopted whereby public bodies other than Whitehall departments could ‘opt in’ to the Code and we had a list of about sixty public bodies (out of thousands) who agreed to observe it.
This time around, the concise three-page document simply states:- This Guidance sets out the principles that Government departments and other public bodies should adopt for engaging stakeholders when developing policy and legislation. So that should be that!
The key principle this time around is proportionality – which we take to be code for more tailored consultations – responding to the needs of the particular situation rather than following a standard formula; hence the de-emphasising of the ‘12 week rule’ though the idea of anything goes from 2 to 12 weeks will alarm quite a few regular consultees. It clearly signposts a greater use of e-consultation and the term ‘digital-by-default’ is quoted in the Cabinet Office announcement, but curiously not in the Principles themselves.
What must be remembered about this document – and its predecessors - is that no Government has shown the slightest interest in providing any form of enforcement mechanism for consultations. As experienced practitioners and members of the Consultation Institute recognise very well, this is not an exact science and it is very difficult to define, let alone police, a set of rules that make sense in the wide range of circumstances where consultation happens. Previous attempts to be more prescriptive have not noticeably improved the quality of dialogue, so the current vogue for ‘light touch’ regulation (Bankers excepted!) should be given a chance.
The risk is that having less rigid rules will encourage those who are dissatisfied with a particular consultation to seek redress in some other way. The most likely being even more recourse to the Courts – through judicial review. That might be unfortunate, for Judges are by no means infallible and may be less qualified than most to rule on what is and what is not reasonable consultation practice.
The other likelihood is that public bodies will develop their own internal ‘house-style’ for engagement, and then have to defend their modus operandi to any stakeholders who believe that they are not acting as fairly or as professionally as the one down the road. It is a little like Localism. Everyone is in favour until you have to defend your decision to be different! Senior Managers in local authorities, the NHS, Police and throughout the public services are finding that it takes a lot of Chief Officer time ensuring that the process of engaging with key stakeholders and the general public can withstand reasonable scrutiny.
Over the coming weeks, the Institute will prepare a detailed set of Guidance on how to interpret and apply the new Principles so that public bodies can minimise the risk of challenge, legal or otherwise. We will also seek to incorporate its thinking into the already-relevant ‘Compliance Assessment’ services we offer – whereby consultations that meet our standards can be awarded our Certificate of Best Practice.
In the meantime, let’s remember that we have yet to meet anyone who deliberately sets out to run a rubbish consultation. Mistakes are often those of omission rather than commission – or just sheer inexperience at some complex processes. The Government is also clearly keen to avoid charges of poor practice. It goes to the top, for at PMQ some days ago, David Cameron was unequivocal, and said “We will ensure that all consultations are properly carried out...”
Let’s see if the new Principles (with some help from the Institute!) can make this commitment a reality.
Trigger Points
- Will your organisation be affected by the new Consultation Principles?
- The Institute expects after further discussions with the Cabinet Office to produce a Briefing Paper on best practice interpretation and application of the new Principles; please tell us what you would like to see covered in this document.
- The Institute would like to know if members would be interested in attending a half-day Workshop on ‘Applying the new Principles’. Please let us know if this appeals to you.
- The Principles need to be read alongside the new Civil Service Reform Plan.
This is the 217th 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