EURIM Briefing No 30
July 2001
Contents
Introduction
Recommendations
Why
is Action Needed?
Democratic
Process v. Market Research
More
Effective Consultation through Better Planning
Effective
Consultation
Encouraging
Participation
Appendices to EURIM Briefing
No 30
Appendix 2 – A cross-section of recent consultations:
Making a Reality of Consultation
Introduction
In recent years there
has been a significant and welcome increase in the extent to which government
consults individuals and organisations on policy proposals and decisions.
Within the Modernising Government agenda, there is evidence of a serious wish
to improve the methods used. The main
driving force appears to be a growing tendency to respond to the uncertainties
of change by seeking framework legislation which leaves Secretaries of State to
devise regulations and codes of conduct. Many EU Directives are similarly
implemented by regulation. The devolution of powers to un-elected bodies
(including industry regulators) also entails a need to review approaches to
consultation at all levels, not just for primary and secondary legislation and
local government.
The quality of current
consultation exercises varies and the shortcomings of some of the consequent
regulatory impact assessments are such that the National Audit Office is about
to embark on a study. Some departments still appear to consult because they
have to, rather than because they want to and many non-departmental public
bodies are not required to consult at all. Attempts to coordinate consultation
exercises between departments and agencies appear limited and there is a
growing problem of consultation overload for those organisations and
individuals asked to respond to multiple exercises on similar subjects.
Recognising the increasing burden of
consultation on the ICT industries, EURIM two years ago produced a Briefing
Paper which examined the issues in a European context. This paper reviews the situation in the UK,
relating to both central and local government. We examine how the consultation
process could be made more effective, more manageable and more likely to leave
people feeling that their views have been taken into account.
Recommendations
1.
Open,
public and published consultation processes should be mandatory for all organisations
with powers devolved from Parliament or other directly elected assemblies.
2.
The
current Cabinet Office guidance, identifying which proposals and decisions
should be subject to consultation, should be strengthened and extended and be
monitored by the Select Committee on Public Administration.
3.
All
consultation exercises and their results should be made available to the
relevant Select Committee and other elected representatives (MPs, MSPs,
Councillors etc).
4.
Select
Committees might also wish to consider taking active oversight of specific
consultation exercises.
5.
There
should be easy access to all documents via the UK online website (and
avoiding the use of lengthy URLs).
Their existence should be drawn to the attention of all interested
groups and individuals as well as through the press. Publicity should also be
given to the outcome of consultations, including the effect of the responses on
that outcome.
6.
Consultation
documents should be drafted in plain language and be candid about the
objectives of the exercise. They should
state clearly whether the consultation is about ends or means. Wherever
possible the focus should be on ends.
7.
Consultation
costs should be fully budgeted for any policy initiative and take into account
the risk that not consulting effectively may lead to wasted spend and
ineffective or counter-productive policy.
Thought should also be given to the costs incurred by those who respond.
8.
Departments
should be encouraged to share consultations and results. Wherever practicable
they should co-ordinate plans for consultation exercises to minimise the burden
on respondents.
9.
All
departments and agencies should produce annual forecasts of the consultation
exercises they expect to carry out (including estimated timetables) so those
likely to be affected can plan the work needed to provide an effective
response. Only in exceptional
circumstances should consultations be carried out if they are not on the list.
There is a growing tendency in
Whitehall to respond to the uncertainties of change by seeking framework
legislation which leaves Secretaries of State to devise regulations and codes
of conduct. Many EU Directives are similarly implemented by regulation. The
means of consulting those affected, whether organisations or individuals, are
many and varied.
The Sixth Report of the Public
Administration Select Committee, Innovations
in Citizen Participation in Government1 made robust suggestions
for improvement. If, however, these are juxtaposed with the analyses in its
Fifth Report, Mapping the Quango State2
and Seventh Report Making Government
Work: the Emerging Issues3, it becomes apparent that the massive
devolution of powers to un-elected bodies should entail major changes in the
approaches to consultation at all levels, not just for primary and secondary
legislation and local government.
Two
years ago EURIM produced a Briefing Paper4 which examined the issues
in a European context. Since then there has recently been a significant
increase in the amount of consultation taking place within the UK, much of it
affecting the ICT industries. Meanwhile
the private and voluntary sectors are reducing management overheads in the face
of increasing cost pressures. They have limited time to read and respond to
consultation exercises. This has led to
a growing divide between those who complain of duplication, fragmentation and
overload (they are on the departmental lists) and those who complain they are
never consulted (they are not on the lists).
There is evidence of a
serious wish by government and most officials to improve processes. A Code of Practice for Written Consultation5
was published on the Cabinet Office website in November 2000 and a Register of
Consultations6 is available via UK online.
However, the quality of consultation
exercises varies. Some departments still appear to be consulting because they
have to, not because they want to.
Organisations and individuals are not always given sufficient time to
respond or a clear understanding of the aims of the consultation and
particularly whether they are being consulted about ends or means . The results
of consultation exercises are not always published in a timely manner or even
at all. Current guidance is strong on the “how” of consultation but says little
about which policy proposals and decisions should be subject to
consultation. Although in some cases
consultation and public participation are mandated (e.g. in local planning
processes and in many major health policy decisions) in the majority of cases
the decision on whether to consult and on what is left to the discretion of the
organisation concerned. The Select Committee on Public Administration (Mapping
the Quango State2 Para 38) found that only 3% of Non-Departmental
Government Bodies are required to consult the public, although another 11% do
so.
The time pressure on respondents is
often increased by a lack of co-ordination between departments. Effective consultation would be improved by
a more integrated approach to planning consultation exercises across government
organisations. Moreover, the implications of devolution, with different
procedures in Scotland, Wales and Northern Ireland, increase the complexity of
some types of consultation.
Democratic
Process v. Market Research
Citizens feel more confident in the machinery of government if it is
clear that their views are being listened to and taken into account. Full and timely feedback is essential and
should include not only the text of contributions but also an explanation of
how they were used in reaching conclusions.
Consultation exercises and public participation approaches (from
referenda to focus groups) need to distinguish between those about what should
be the ends and those on the means to achieve predetermined ends. When a consultation is only about means, it
is essential that this is made absolutely clear. It is recognised that occasionally
consultation serves as a political expedient, but this should be kept to a
minimum.
There
are many different ways to consult and there will often be a need to use more
than one method. Current Cabinet Office guidelines cover only written
consultations and should be extended to embrace other methods, including
electronic media, which should become more widespread as the Modernising
Government programme develops. The cost of tailoring material to fit the medium of the web
would be justified in terms of easier and better responses, but it must at the
same time be recognised that non-automated methods of consultation will
continue to be of vital importance.
People
like to respond to defined options and the less structured the exercise, the
more necessary it is for face-to-face contact between officials and those
consulted. But options need to be
researched and good consultation overlaps with market and academic
research. Different types of
consultation may be undertaken as market testing exercises to find out whether
policy ideas will fly, to develop consensus or to assess public priorities.
Those undertaking
consultation need to be open about what will happen with the input, as well as
about the background to the consultation.
There can be conflicts between the openness required for effective
consultation and the need to keep policy or commercial information
confidential. This is a particular
problem in handling planning enquiries.
Central government departments differ in the importance they attach to
the consultation process and this is reflected in the results. At the worst
extreme, we can have unworkable legislation because of failure to consult all
the groups affected or to listen to their concerns. Such risks increase as it becomes more difficult to predict,
identify and consult those who may be affected.
More Effective Consultation through
Better Planning
Many organisations are becoming concerned
about their ability to react effectively to consultation exercises. This is partly because of the increase in
the number of consultations and partly because of deadlines which do not take
account of the time necessary for trade associations (for example) to consult
members or for companies to agree policy.
There is also a polarisation between “professional respondents”
(pressure groups, consultancies and law firms creating business and employment
opportunities on the back of the policy) and those “too busy surviving” to have
time to monitor whether policy proposals might affect them.
Few organisations still have
in-house public affairs teams monitoring government policy, ready to respond to
those consultations which might be of concern.
Most bin the papers unread or rely on their trade association or
professional body. But few of them have
the resource to handle more than a dozen consultations a year. Yet it is common for them to receive a dozen
a month and to be aware of many more that might affect their members. Moreover it can take up to three months to
organise a genuine membership consultation and collate and agree the response.
In consequence those who want their submission to be more than the prejudices
of a handful of activists tend to respond only to those consultations of which
they received advance notice or where it is immediately obvious that the cost
to members could be significant.
Effective consultation exercises are
those that:-
o
encourage
all relevant respondents to contribute;
o
contribute
to better decisions and more effective policies;
o
give
stakeholders confidence that their views are being taken into account; and
o
fit in
with the democratic process rather than bypass it.
It is also important that the timing of consultation exercises allows the
results to be taken into account in the formulation of both the detail of
policy and the implementation plans. This is
particularly vital if an outside contractor is to conduct the consultation,
since their appointment may well be subject to the procurement rules. There may also be a need for more than one
iteration, with the results of each made widely available.
Consultation
exercises need to be publicised to ensure that all with an interest are aware
of them within the response time. Many
now feel they have legitimate cause for complaint if an electronic version of a
consultation document is not available over the Internet at the time of the
announcement of the consultation and there is a case for stating that
consultations have not “legally” started until the consultation papers are
available over the Internet and the location has been announced to both Members
of Parliament and the Press.
All
consulting bodies within both central and local government should provide
access to consultation documents and their results through the UK online website and in addition be
required to list their forward consultation programme.
The
cost of consultation, both to departments and to those responding, is rarely
assessed and can be substantial. Such
costs should, however, be balanced against the cost of implementing poorly
targeted or constructed policies: the very real knock-on effects on
parliamentary time, and industry and departmental resources. There is, also, evidence of considerable
duplication of effort, with multiple departments consulting the same groups on
the same issues. It can, however, be dangerous (and may be contrary to the Data
Protection Act) to rely on answers obtained elsewhere for a different purpose.
Responses also change over time. A
significant amount of work is required by the consulting department to ensure
that responses are obtained from the appropriate range of people and
organisations.
Analysis
of the results and determining the weighting to give to various views are also
critical. There is a shortage of
officials with the expertise to plan consultations, evaluate the results (or
sometimes even understand the issues being addressed). This is especially acute in complex areas
requiring technical or business knowledge.
The problems are probably worst with regard to regulatory impact
analyses which suffer particularly from the lack of involvement by those with
experience of the practical workings of those who may be affected. It is perhaps significant that the analyses
cited as examples of good practice (e.g. National Standards for the
Regulation of Day Care) were produced as part of the original research into
how the policy would achieve the results targeted and were not an afterthought.
Both
timing and length of consultation need to recognise that it is sometimes in the
public interest to move rapidly to a decision and implementation. There are also circumstances when there is
no opportunity to consult because of the political imperative for rapid action
or a surprise announcement. If so, the
risk of error or opposition needs to be taken into account.
Encouraging Participation
Whilst welcoming
the opportunity to participate, many organisational recipients of consultation
documents find it difficult to do so effectively. Many have to be ruthless in deciding which to attempt to deal
with and which to ignore. It is
essential that sufficient time is allowed for response; the current guidelines
state 12 weeks as the minimum response time. Shorter deadlines allow for
neither the necessary internal consultation nor formal ratification of
responses through the organisation’s constitutional channels. Better results can also be obtained if the
timetable for the exercise can be trailed in advance so organisations can plan
their responses effectively. Better
co-ordination between departments and agencies will help avoid overload,
overlap and duplication.
Many
organisations are consulted frequently and would benefit from more feedback on
the results and how their own submissions were received. This would also improve the quality of
future responses.
Organisations and individuals will find it easier to respond if they are
clear about the purpose of the consultation and particularly whether they are
being consulted about ends or means. It
is also helpful if the implications of policy initiatives and proposals can be
drawn out in the documentation. It is
essential that accessible language is used and that documentation is made
available electronically.
Pre-consultation exercises
(including market research) can help to ensure that all relevant stakeholders are invited to participate rather than
just the usual suspects. Where
appropriate, availability of the documentation in minority languages and in
forms that cater for people with disabilities (e.g. Braille) is required. Particular care and creativity is needed to
capture the views of marginalised sections of society although, once contacted,
these are more likely to have the time to respond.
More
should be done to publicise the results of consultations in line with the
Public Accounts Select Committee’s endorsement of transparency in the policy
making process. Some departments
already place responses on their websites (in an agreed anonymous version if
required). As a minimum, a summary of
responses and an indication of how they have made a difference to the outcome
should be made widely available both electronically and through press reports.
© Copyright
EURIM 2001. All Rights Reserved. For written permission to reproduce any part
of this publication please contact the Administrative Secretary, EURIM, (email:
admin@eurim.org; fax 01984 618383). This will normally be given provided EURIM
is fully credited. Whilst EURIM has
tried to ensure the accuracy of this publication, it cannot accept
responsibility for any errors, omissions, mis-statements or mistakes.
Appendices to EURIM Briefing No 30
Appendix 1 – References and Sources
1.
Public
Administration Select Committee, Sixth Report, April 2001:- Public
Participation: Issues & Innovations
2.
Public
Administration Select Committee, Fifth Report, March 2001:- Mapping the
Quango State
3.
Public
Administration Select Committee, Seventh Report, April 2001:- Making
Government Work: the Emerging Issues
4.
EURIM Briefing No 26:- Consultation, Concealment or
Confusion: Practices and Principles for European Policy Formation
5.
Cabinet
Office Code of Practice on Written Consultation
http://www.cabinet-office.gov.uk/servicefirst/index/consultation.htm
- House of Lords Select Committee: Third Report (chapter
5)
- National Consumer Council: Government
consultations: not just a paper exercise http://www.ncc.org.uk/pubs/govt_consultations.htm
- Trade Associations Forum : The Business of Representation report
(Alastair McDonald)
http://www.taforum.org.uk
Appendix
2 – A cross-section of recent consultations:
(ukonline URL's correct at the time of drafting)
DfEE: Towards Inclusion : Civil
Rights for Disabled People DfEE 2001 ISBN 1 84185 480 8
National Standards for the
Regulation of Day Care : consultation
pack DfEE 2000
Cabinet Office Social Exclusion
Unit: Consultation on young runaways
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=3250
DTI: Consultation on draft guidance on
Intellectual Property in Government funded research
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=1760
Inland Revenue: A review of small
business taxation:
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=3110
Home Office: A review of the
Rehabilitation of Offenders Act 1974
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=3830
Patent Office: Software and Business
Methods
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=1970
Food Standards Agency: Application for
national approval of a new sweetener 'Sucralose' under the sweeteners in food
regulations 1995 (as amended)
http://www.ukonline.gov.uk/online/citizenspace/default.asp?url=/online/citizenspace/consultation/viewtopic.asp?TopicID=3750