The case for putting public consultations on a proper Statutory footing

The classic complaint of the British voter is that politicians only listen when they are asking for votes. ‘We only see them at election time’, is the standard refrain. We are about to see them once again traipsing up and down our streets, admiring flowers in the front garden and kissing babies in the time-honoured way. Welcome to the 2017 General Election.

Only this time around, manifestos were not ready so this Topic coincides with each Party’s desperate search for the right themes and ideas to publish in the coming days. They may not be read by many people, but they matter because they serve as an incoming Government’s agenda. Everything it wishes to do that’s supported by a Manifesto commitment places it in a strong position, for it has a ‘mandate’; policies without such a mandate can be destined for disputes.

So, here’s a bold proposal to tackle one of the besetting drawbacks of mature democracies – people’s diminishing confidence in political and public decision-making. Representative democracy is challenged by direct democracy, but one cannot run a referendum every five minutes about anything and everything. Most systems settle for a form of public involvement that encourages a wider debate and the UK model of consultation is, in many ways, one of the most advanced in the world. Our Courts have intervened to support ideas of fairness in the way public bodies have consulted and our best practice is outstanding.

But there are weaknesses and a deep mistrust that politicians and senior civil servants misuse the system. It is seldom sufficiently transparent, is open to much manipulation and the only remedy against a poor consultation is an expensive and unpredictable recourse to Judicial Review. We can do better.

We need a Public Consultation Act, to place formal public consultations on a proper statutory footing. It will apply to the myriad statutory requirements that already clutter up our legislation – by setting down clear standards which those consultations should meet. It would enshrine and update the ‘Gunning Principles’ in legislation and create a citizens’ right to become involved (if they wish) in decisions that might affect them significantly. It would provide safeguards for seldom-heard groups and others and oblige public bodies to maintain accurate records of consultations, their processes and outcomes. It might prescribe circumstances where Public Consultation Hearings are to take place and provide statutory encouragement for more public involvement in decision-making.

All this needs to be enforced – not by Government but by an independent body.

We envisage an independent Office of Public Consultation – not unlike the Office of Budgetary Responsibility. The latter came about because of public scepticism and mistrust of economic and financial forecasts from within the Treasury and other Government departments. Despite recent improvements, there is a similar problem with public engagement. No matter how hard civil servants, NHS managers or local government officers try, they are viewed as being too close to a preferred solution to organise a consultation that lends itself to a fully open debate. And best practice in matters such as infrastructure planning insists on an independent element in the process.

The Office of Public Consultation could do much to promote the concept of public involvement, starting in our schools and influence the use of social media in consultation practice. It becomes the enforcer of standards, providing recourse for those who complain that a consultation breaches those standards. Right now, there is only the expensive, long-winded and often unpredictable recourse to the High Court. What should be a last resort is in practice the only resort. Helpful as Judges have been in clarifying the standards for meaningful consultation, it is wrong that they are the only ones that can adjudicate when it goes wrong.

Now, some will argue that we already have the odd Ombudsman case and dozens of Guidance documents exhorting officers to consult better. But they have no teeth and too many people have lost faith in the integrity of our consultative process. We need to rebuild confidence in our democracy; a political party willing to commit to this would be sending out a powerful signal that it is genuinely interested in listening to the views of those it consults.

A few years ago, at the Institute’s Headquarters in Bedfordshire, we entertained senior officials from a non-democratic country, keen to learn how it could consult better. On a separate occasion one of our Associates went to an African country – also undemocratic – to help it shape its new public consultation law. Here – with our strong tradition of public participation, there is less need to stimulate consultation; it happens. What we need is better enforcement and an incentive for people to become engaged with confidence that they will be listened to and their views taken seriously. Undoing forty years of EU-oriented legislation will throw up dozens of contentious policy issues that will require unbiased and highly professional consultation, against a backdrop of mutual suspicion between remainers and leavers.

 A political party that realises this needs a better and a statutory framework for public debate, may position itself as being the one to best handle the next few difficult years. Who will it be?

TRIGGER POINTS

• Read our analysis of the 2015 Manifestos – Tuesday Topic 276
• Hear more about ideas to combat fake news and encourage evidence-based decision-making in the Institute’s June Conference – Public Engagement in The Post-Truth Age

This is the 319^th  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.