Why a new Government should reform public consultations? And how it might do so.

This is Blog No 73

With all the formidable problems awaiting a new Government on Friday, no-one expects the reform of public consultations to be high on anyone’s list of priorities.

But it’s worth reflecting that one of the reasons why Labour enjoys an immovable lead in the polls is the experience of dishonesty, lies and a lack of integrity, particularly under the Boris Johnson premiership.

At the time, Labour pledged to restore trust in politics, and if it is to be true to that intention, it needs to tackle long-standing issues of credibility and competence in the way that Governments consult the public and policy stakeholders.

Central Government conducts approximately 400 public consultations every year. When government executive agencies and regulators are included this number doubles. In addition, there is a wide range of other ‘engagement’ exercises, or ‘calls for evidence’ subject to little scrutiny and few if any standards.

Issues of trust have dogged the current government and contaminated public confidence in a wide range of governance processes. Ministers have continued to lose judicial reviews on the legality of its consultations; as recently as last month, the Home Office was found by the High Court to have conducted an unlawful consultation on the toughening up of the law on protest. (See Blog 70).

In fact, the regular procession of Ministers taken to Court by disgruntled consultees has been an embarrassment for years. One can almost hear Sir Humphry’s heirs, with furrowed brows advising: - “Minister, we really must defend this challenge. If we lose, it will significantly constrain your ability to carry out your plans.” No wonder the Government sought to restrict the role of the Courts as with the 2022 Judicial Review and Courts Act. But still they come. Governments cut corners and short-change those they consult – or should consult, and it needs to stop.

In truth, there are some excellent public consultations. Local government as well as central government departments often produce exemplary exercises, and there is plenty of evidence that, when done well, consultations confer greater legitimacy for important policies, improve the outcomes and demonstrate that decision-makers genuinely listen. But practice is inconsistent. When you open a newly-announced Government consultation on Gov.uk, you have no idea whether this is well-prepared, or meets the Gunning Principles or  lasts for long enough for you to give it ‘intelligent consideration”. Many do not.

One problem is the lack of clarity as to when a consultation should be conducted. The legal doctrine of ‘procedural legitimate expectation’ complicates things somewhat, and there are also plenty of occasions where sensible Governments and other public bodies recognise the advantages of consultation, and proceed – without the legal obligation to do so. Then there is the age-old political culture that whenever opponents dislike a proposal, they are prone to campaign for better consultation rather than engage on the merits of the case.

So, what should be done?

What should we ask of a Keir Starmer administration with Sue Gray there to provide administrative ballast for a civil service that has been poorly supported in recent years?

Here are some suggestions:-

Appoint an Independent Consultation Advisor

We have seen how difficult the current Government found it to appoint and retain Ethics Advisors, but clearly there is a need for someone to sign-off consultations on controversial issues and protect new, less experienced Ministers from making the same mistakes all over.

Better enforcement of the existing Consultation Principles

They have been around since 2011 and were roundly criticised when the previous Code of Practice (2008) was summarily replaced. They were improved in 2018 but suffer from the drawback that there is not the slightest will or process for enforcement. Compliance is poor. In a recent sample study of Government consultations, only 52% reported the output within the 12 weeks prescribed in the Principles. A new Government could pledge to stick to the rules, however inadequate. 

Develop replacement Principles – back to the standards of the 2008 Code of Practice

This was the high-water mark of Whitehall’s willingness to embrace best practice standards, and reflected some serious contributions by The Consultation Institute. They are mostly still relevant and if supplemented and brought up-to-date, a reversion to the 2008 standards might help.

Revise the National Audit Office’s Terms of Reference to enable it to scrutinise public consultations 

The NAO holds a special position and influence in the UK political environment. If its Terms of Reference could be amended to include oversight of public consultations, there would be effective scrutiny, with a possibility that its Reports on Government departments and projects could increasingly cover public engagement aspects of issues they address. Even Parliament might get to debate it once in a while.

However, useful as these modest moves might be, I have been in little doubt that what is really needed is a new regulatory regime with statutory backing 

This recognises that there will be no effective enforcement unless a totally independent entity is created, with authority to halt sub-standard consultations and to act as arbiter of best practice. A model may already exist. Insofar as the job of the Office of Budget Responsibility (OBR) is there to keep politicians honest in relation to finance and money, a comparable Office of Public engagement (OPE) can do the same in relation to consultation and other dialogues?

With John Underwood of the University of Buckinghamshire, I have now developed effective proposals for the OPE that would enable it to perform much-needed functions such as:

• Develop, publish, and review standards for public consultation and engagement including traditional processes as well as critical new machinery such as Citizens’ Assemblies.
• Define and regulate ‘Registered consultation/public engagement exercises. Once registered, they would carry a guarantee that they meet the required standards.
• Own and run the definitive national consultation register on a well-publicised and accessible system, enhancing public visibility of the most relevant exercises.
• Provide a Conciliation and Arbitration Service to resolve disputes without recourse to expensive legal challenges such as Judicial Reviews.
• Offer a civic education service to encourage public engagement, working in schools and communities, and helping citizens to understand and exercise their rights.

There are many benefits:

• It would demonstrate a new Government’s commitment to honesty, truth and integrity.
• It would provide improved confidence in public engagement and consultation processes.
• Encouragement for decision-makers to conduct best practice engagement and consultation; eliminate the temptation for civil servants to cut corners.
• Better informed policymaking with greater legitimacy for measures not declared in election Manifestos.

I believe we could build substantial support for this proposal, and, if a new administration shows a willingness to improve the machinery of government and rebuild trust in our political institutions, now is the time to start a campaign.

Do you agree?

Rhion H Jones LL.B

The Consultation GuRU

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