Effective Consultation
Governments, Regulators and Local Authorities don’t always consult properly. There have recently been three prominent challenges.
In the first, Wikipedia are challenging “broad and vague” online safety legislation which might require it to identify its thousands of volunteer editors and so expose them to “data breaches, stalking, vexatious lawsuits or even imprisonment”. Wikipedia’s complaint is not with the primary legislation but with secondary legislation made under the Act. Such legislation is seldom properly scrutinised in Parliament.
In the second, the London Borough of Lambeth have been found to have acted unlawfully by appearing to ignore a 53 page document which argued that a new Low Traffic Neighbourhood (LTN) would divert traffic onto nearby boundary roads and so cause various adverse consequences
In the third, head teachers are seeking judicial review (JR) of Ofsted’s new inspection regime following what they claim to be an inadequate consultation process. The consultation followed numerous complaints about the previous inspection system. These were brought into stark relief by the death by suicide of head teacher Ruth Perry. It may not be the main principal ground for the JR, but head teachers are particularly upset that, in launching the consultation, neither Ofsted nor the Department for Education made any mention of Ms Perry’s death.
These are all sensitive consultations about decisions which affect a lot of people - but they are hardly unique in that regard. They remind us that consultations should not be rushed, or organised too late in the policy development process, or do little more than canvass public attitudes. If challenged, they demonstrate that more haste = less speed.
So this is a good opportunity to mention that Part 6 of How to Succeed in the Senior Civil Service introduces the law that governs, and best practice in, public sector consultations. Here are the first few paragraphs. They will hopefully encourage you to read the whole document, either now or when you next need to consider a consultation exercise. It can be accessed here.
6.1 Introduction
Senior decision makers are seldom pleased when they are asked to undertake a lengthy consultation process.
There is nothing a government hates more than to be well-informed; for it makes the process of arriving at decisions much more complicated and difficult. - John Maynard Keynes
They sometimes have a point. Machiavelli put it this way:
Princes should consult the many about what they might do, and consult the few about what they are resolved to do.
There is normally no question of ministers needing to enter into anything like a formal consultation process about the most far-reaching of decisions such as whether to go to war. They will of course get lots of strong informal advice anyway.
But ... Ministers and their political advisers all too often have unwarranted confidence in their ability to make sensible, speedy decisions, and their ability to change the public's behaviour. They are also often over-optimistic about what their organisations can achieve. It doesn't help that social media, and the mainstream media that feed on it, cause decision-making to be made under ridiculous pressure.
It can therefore be very difficult to persuade ministers that research and consultation makes sense. It can be worth quoting or paraphrasing the military doctrine that 'The first duty of a commander is reconnaissance.' The best laid schemes will certainly go badly awry unless supported by strong and open-minded consultation processes. Scientists and researchers may have access to data not otherwise available to agencies. Industries and advocacy groups may have important insights into a particular problem. And individuals may be able to draw on their lived experiences to offer valuable perspectives.
But you and your ministers must never delegate decision-making to those being consulted. They are much more likely to draw attention to problems - and in particular to their problems - than to the benefits that might accrue from the proposal. They will very seldom offer anything approaching a positive vision. Henry Ford pointed out that "If I had asked people what they wanted, they would have said faster horses". Politicians should therefore say what they want to achieve. Civil servants help them get there, consulting as to means.
And there is a fair amount of settled law in this area.
6.2.1 The Law
It is important to remember that most consultations are required by law and must be carried out to a high standard. A legal duty to consult may arise:
where there is a statutory duty;
where a promise to consult has been made;
where there is an established practice of consultation and (iv) where it would be conspicuously unfair not to.
Consultation processes in practice have two main functions.
The first is to help the consulting authority decide what to do by ensuring that, before it makes a decision, it has access to facts and arguments from a wide range of sources. The process therefore needs to encompass all reasonable options (usually including either ‘no change’ or uncontroversial improvements) and it needs to be carried out with an open mind, well before the authority reaches a provisional or ‘minded to’ decision.
The second main function of a legally compliant consultation is to ensure that the reasons for the eventual decision are both sound and clear to third parties.
An authority’s decision will be successfully challenged (via judicial review) if:
the authority took into account factors that ought not to have been taken into account, or
the authority failed to take into account factors that ought to have been taken into account, or
the decision was so unreasonable that no reasonable authority would ever consider imposing it.
The authority’s consultation process and eventual decision document therefore need to demonstrate that the above challenges cannot be sustained. In particular:
authorities must clearly describe any facts and assumptions (including expert’s assumptions) which they have taken into account, so that these can if necessary be challenged, and
authorities cannot rely upon computer models and spreadsheets. Judges are sceptical of such ‘black boxes’ and always need to be persuaded of the logic and sense of assertions based on such models.
Note
This Substack is your seventh and final introduction to the ten individual parts of How to Succeed in the Senior Civil Service.
Here are links to the six previously published excerpts:
(Part 1) The responsibilities of the SCS,
(Part 2) Understanding Organisations,
(Part 3) Speaking Truth to Power,
(Part 4) Leading and Managing,
(Part 5) Managing Crises, and
(Part 8) Competition Policy.
The other three parts (mainly of interest to regulators and those still negotiating with the EU) are listed here.
Martin Stanley