The Government's new approach to consultation has received mixed reviews. But it's their lack of 'consultation on consultation' that has angered many involved in public engagement exercises. It also threatens progress when it comes to consulting stakeholders on policy issues.
The 'Statement of Consultation Principles' was published last summer by the Cabinet Office and replaced a well established Code of Practice on Consultation (2008). The main thrust of the new Principles, which is to move towards a more proportionate approach to consultations and to explore alternative forms of engagement such as increased digital consultation, has been largely welcomed.
Although generally highly regarded, one of the common criticisms of the 2008 Code is that it was too prescriptive and forced Ministers to adopt a 'one size fits all' approach to public engagement exercises. It has long been argued and accepted that the best form of consultation is tailored to the subject and stakeholders it concerns, and judging by the Principles, this seems to be the direction the Government wants to go.
What has not been so welcome is the proposed ministerial discretion in the Principles which will allow consultations to be carried out in a minimum of two weeks. The 2008 Code stipulated a minimum of 12 weeks but provided for a ministerial override. If an override was exercised a clear explanation as to why the decision was taken had to be provided.
What has caused even more furore is that the Principles were not consulted on before being implemented. This is despite the fact that there are clear concerns about Ministers opting to consult for the new minimum time period, mainly that it is not enough time for potential consultees to submit a considered response to a consultation. This is particularly true of membership organisations, for example, where it can take time to draft a response, circulate and get it approved before submission.
These concerns were highlighted in the House of Lords Secondary Legislation Committee report reviewing the Principles which was published in January. In this report the Committee called on the Cabinet Office to hold an immediate and independent review of the Principles, open them up to public comment and report back by Easter.
The Government's response, issued last month, has fallen far short of the Committee's recommendations. Oliver Letwin MP announced that the Principles will be reviewed by a quasi-external panel but ultimately spearheaded by the Cabinet Office, will not be up for public comment and will be reported on in July – the first year anniversary of their publication.
Letwin is probably keen to avoid the perception that the Government is 'consulting on consultations', which is often used as an example to illustrate that government consult on anything and everything. However, there are reasons why opening up the Principles to public comment may have been a useful exercise.
Ministers have to be able to justify their decisions over the length of consultations and their judgments have to be applied consistently across departments.
Ministers have almost fallen at the first hurdle by not explaining why they don't want the public to comment. This has heightened mistrust amongst stakeholders who are worried Ministers will try and bypass meaningful consultation exercises to push through unpopular policies.
If the Cabinet Office had asked for comments and set out a detailed response as to why a shorter consultation period does not necessarily equate to an inadequate consultation, this would have perhaps allayed fears in this regard.
The Cabinet Office may have also benefited from experts in the field of consultation and a public involvement exercise commenting on and shaping the Principles. As opposed to having to issue a document because Ministers demanded it.
The Government's decision not to consult or issue a call for evidence is probably symptomatic of an administration keen to speed up decision making via 'light touch' regulation. However, not opening up the dialogue around the Principles to the public and addressing points of concern has meant that it has become overshadowed by arguments around minimum time periods. Issuing a call to evidence and issuing an appropriate and considered response may have addressed the concerns and also emphasised the more positive aspects of the Principles.
The new approach risks losing the benefits of good consultation – robust decisions informed by experts which people can buy into.
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