Guerilla Voice: If consultation isn’t working, where’s the alternative?

Just over a year ago, the Government published its civil service reform plan, promising to “make open policymaking the default”, recognising that Whitehall itself does not have a monopoly on expertise: ”Whitehall has a virtual monopoly on policy development, which means that policy is often drawn up on the basis of too narrow a range of inputs and is not subject to rigorous external challenge prior to announcement.”

One year on, how has government changed how it engages beyond the ‘usual suspects’?

The simple answer is ‘very little’. A month ago, we did a quick ‘scorecard’ on ‘whatever happened to open government and open policy?‘ We noted that open government and open policy are ambitious agendas and that the Government is to be praised for making these the markers against which it can be evaluated. But we also argued that judging the Government on what it is actually doing suggests that while progress has been made in some areas, the Government is undermining its own efforts by resisting greater openness, particularly when this would be uncomfortable for ministers. In short, there’s still some way to go until, in David Cameron’s phrase, we have the ‘most open and transparent government in the world’.

This applies particularly to consultation - the traditional means of engaging the wider world in developing (or more commonly, reviewing and tweaking) policy. The Government has had a torrid time with many of its consultations, especially when viewed from the frontline and independent commentators. Here’s just a few examples from the last few months:

• a new consultation on the mobility component of Personal Independence Payment (PIP), which is replacing Disability Living Allowance (DLA), with a single narrow, flawed question (the Government was forced into this consultation by a Judicial Review of the original PIP consultation), and which disabled people’s groups already regard as dictated by reducing costs rather than supporting greater independence;
• the fourth consultation on how the Work Capability Assessment is operating and further changes that may be needed to improve the process, which starts from the position that “no fundamental reforms are needed”, and which is certainly not the view of those who are actually subjected to the assessment;
• the Government’s roundly-condemned legal aid proposals (Justice Secretary Chris Grayling has just been forced to drop one of the most controversial elements, depriving defendants of the ability to choose their own solicitor);
• the wretched consultation on the Government’s forthcoming Immigration Bill, which will include proposals to require landlords to conduct immigration checks on tenants and penalties for those who provide rented accommodation in breach of the rules (as regular blogger Puffles commented: “This has to be one of the most appalling of consultation documents I have ever seen come out of Whitehall, and it does a discredit to the civil servants that were pushed to publish this”);
• the DWP’s public consultation on child poverty earlier this year, which was criticised by researchers for seeking public opinion to address matters of fact and representing a move to ‘policy by opinion poll’;
• the four week consultation (criticised as “inappropriate” by the Association of Council Secretaries and Solicitors) on plans to remove additional employment protections for the key council officer roles, with its select consultee list including the TaxPayers’ Alliance pressure group;
• the overwhelming critical responses to the consultation proposals to reduce by half the deadline for applying for a judicial review of planning decisions and extending permitted development rights so that homeowners can build larger extensions without the need for planning permission;
• DCLG proceeding with legislation to restrict council publications two days after the end of the (four week) consultation (which the LGA understandably described as a ‘fait-accompli’);
• DfE’s PSHE review, which has been criticised for completely ignoring homophobia, homophobic bullying, sexual orientation and sexuality, despite the many responses to the consultation by groups focusing on these issues.

We could add many other examples to this list, but you get the point.

The picture that emerges from these and other examples is that the Government no longer believes in consultation. In one sense, that’s understandable - when consultation comes late in the policy development process, and when the Government already knows clearly what it wants to do and is anticipating criticism and opposition from organisations it can predict, why should it seek to provide a platform for such organisations to criticise its proposals? Well, because it’s required to of course - but also because the Government says it believes in opening-up policymaking.

This picture is reinforced by the Government’s replacement - again one year ago - of the 2008 code of practice with a set of ‘consultation principles’, which advised that consultations should be more ‘proportionate’. These new principles were criticised by a House of Lords select committee, which politely called them a “work in progress”. As the committee concluded: “The new Principles may allow the Government to make legislation more quickly, but there is a risk that the resulting statute will be less robust because rushed consultation processes make it too difficult for external interests to provide expert critique at the right time. …we call on the Government to recognise that the July 2012 Principles are failing to provide the consistency and transparency that others look for in consultation exercises.” The committee called for an independent, external review of the principles; in response, the Cabinet Office Minister for Government Policy, Oliver Letwin formed an ‘external advisory panel’ (not the same thing) - which has subsequently lacked transparency about what if anything it has concluded, or even who is involved in it.

Also look at the length of current consultations. There are currently 82 open consultations across government. Just focusing on the areas that are of most interest to us - covering social policy - indicates that there has been a reduction in the time that consultations are open from the 12 weeks (84 days) typically suggested in the 2008 code to much less than this:

• DCLG: 60 days
• DfE: 75 days
• DWP: 47 days
• Department of Health: 57 days
• Home Office: 41 days
• Ministry of Justice: 63 days (one consultation)

Average number of days: 57

So, departments appear to be reducing the opportunities for those outside of government to inform policy, and in many cases contravening the principles of good consultation. Of course, on their own, consultations are a very limited (but still important) part of good, transparent, evidence-based policymaking, and it’s true that we perhaps expect too much of them, especially given that they are often carried out too late in the policymaking process, after ministers have committed themselves politically to what they want to do. But undermining consultation without having put in place any viable alternatives only leads to more closed policymaking, not the opposite.

The irony is that the Government has proposed some alternatives, at least in outline. It just hasn’t acted on its own ideas.

We do know - through the Democratic Society’s Open Policymaking discussion site - that the Government Digital Service is developing a repository of tools, techniques and case studies that will help policymakers to do open policymaking, alongside a list of ‘ideal policy team behaviours’ for better, more open policymaking. But the Cabinet Office’s own record of progress on implementing the civil service reform plan only notes, under ‘Open Policy Making’, the commissioning of the IPPR think tank report on civil service reform through the Contestable Policy Fund. Government commissioning a report on a question determined by ministers and only published after it has been reviewed by ministers and civil servants is not open policy - it’s business as usual.

For open policy, we need to engage the ‘unusual suspects’. Government itself has proposed broadly what this should look like (the table below is taken from the reform plan itself) - note in particular the “Policies test/prototyped by users/frontline for practical viability”:

The reform plan also proposes the use of web-based tools, platforms, and new media to widen access to policy debates to individuals and organisations not normally involved, including “Getting wide public input by “crowdsourcing” questions to shape the definition of the problem, not just consulting on solutions.”

Further, in May the Public Administration Select Committee published a valuable report on Public engagement in policy-making, again urging policymakers to go beyond the ‘Westminster Village’. The report concludes that “There is great potential for open and contested policy-making to deliver genuine public engagement. There is also a risk of disappointment and scepticism amongst the public about the impact of their participation, and that Government listens only to the media, lobbying and “the usual suspects”.

The picture generated by what has been implemented in the year since the public of the civil service reform plan suggests that, despite the Cabinet Office’s work to progress open policy, scepticism is not only a risk amongst the public - it’s also prevalent in many government departments as well.