Windrush woes; a failure of consultation?
Policy mistakes often stem from inadequate engagement with stakeholders
The classic text on public administration disasters is The Blunders of our Government, but had the much lamented Professor Anthony King lived to this week, he would surely have found fertile material in the scandal of the Windrush people, which cost Amber Rudd her job on Sunday evening. Of the many reasons he and Professor Ivor Crewe identified for a litany of sad tales, was a ‘deficit of deliberation’ ; in other words, there was not adequate consultation!
In the Windrush case, the Home Office defence was that the succession of individual cases highlighted by MPs and others, never manifest themselves as a systemic or policy problem. In effect, no-one had joined up the dots. It was only now, with the benefit of hindsight, that Ministers could see that clearly there had been injustice, and that public support for a tough line on illegal immigrants had inadvertently led to case officers treating those with a legal right to be in the UK as if they were, in fact illegal. Or so the (then) Home Secretary asserted.
Now, one of the main justifications for public consultation is to guard against such unintended consequences. If you ask enough well-informed people about the likely impact of a policy proposal, someone will surely identify any risks that Ministers or civil servants may have overlooked. If no-one anticipates the issue, then perhaps Government departments may be forgiven for also failing to spot the problem.
In the case of the 2014 Immigration Act, there were rumblings as the Bill went through its parliamentary process. In the words of the LibDem MP, Simon Hughes:
“That is why I am troubled that yet again we are dealing with a Bill that has not had pre-legislative scrutiny, that was not preceded by a Green Paper or a White Paper and that has not been the subject of full consultation. This is bad legislative process and there is no need for it.”
In fact, there had been some consultation. One was on the controversial proposal to require landlords to check the immigration status of proposed tenants; the other on the parallel requirement for employers to perform similar checks before making appointments. You will find online detailed Impact Assessments, and one of them includes the clear admission that “UK citizens without ready access to paperwork may find it more difficult to obtain accommodation.” High Court cases on the S.149 ‘due regard’ provision of the 2010 Equality Act have shown that Ministers rarely read Impact Assessments prepared by their own departments, but it surely cannot have been a surprise if this was forecast as a likely consequence of the policy.
Even though there was no consultation on the Bill as a whole, there was a Public Bill Committee which issued a ‘call for evidence’. And there was plenty of it. About 100 individuals and organisations made representations. Browse through the 247 pages of published evidence and you can find many predictions of the very injustices that the rest of us have learnt about in recent days. However, this Committee was politically structured. It had ten Conservatives, eight Labour and two LibDem MPs plus a member from the DUP. It can invite whomever it likes to give evidence and can study the evidence or ignore it as it wishes. Unlike a ‘consultation’, there are no legal rules, so whereas the fourth Gunning Principle requires consultors to give consultee submissions conscientious consideration, a Parliamentary call for evidence has no such requirement. You merely inject your views into the political bear-pit and hope someone notices. Maybe we have the best case study yet to support the argument for formal pre-legislative consultation?
What conclusions can be derived from this sorry saga? Here are some tentative thoughts:
- No amount of consultation can save politicians from their own folly. If they are determined to proceed with ill-considered laws and actions, consultation does not stop them.
- What consultation does provide is a safety-valve for those who are wise enough to study the evidence, and think seriously about the impacts of their proposals
- Consultation also makes for a more transparent debate, so that more people can become aware of the arguments advanced – and who is making those arguments
- In the Windrush scandal, too many warnings had been given, and too much was known of the potential risk to this group of people that it became politically untenable for the Home Office to protest that it did not appreciate that there was a problem. (Amber Rudd’s resignation was not actually about this – but due to the related confusion on Removal targets. But the general point still holds good)
Consultation does not provide a foolproof way to avoid massive political and administrative blunders. But it is part of the delicate system of checks and balances that reduces the risk of such calamities.
- Does your organisation acknowledge the role of consultation as a risk-reducing mechanism?
- Does it invest appropriately in this ‘safety-valve’?
- The Blunders of our Governments is by Professor Ivor Crewe and Professor Anthony King: Published September 2013 by Oneworld Publications
- Full details of the proceedings of the Immigration Act 2014 through Parliament can be seen on the Parliament website:
- Issues from this Topic are considered in The Politics of Consultation, written by Rhion Jones and Elizabeth Gammell; available to Institute members in June/July.
This is the 336th 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.