Open policymaking: Should there be a ‘duty to involve’ for national policy?

As Edward Andersson from Involve noted in his recent blog reviewing the new consultation principles issued by government: “Today consultation has, for many citizens, become a byword for formalistic, tick box exercises, done to mask a decision which is already a ‘done deal’.” Edward rightly suggested that the new principles, while important, fall short of providing the solution to this widely shared view of consultation. Could one solution be a national ‘duty to involve’, similar to the requirement that some local public services are already subject to? In which case, national policymakers should look to their local counterparts for what works.

This post is part of the project on open policymaking and better consultation, hosted by the Democratic Society in association with the Cabinet Office. As Anthony Zacharzewski, head of DemSoc, has summarised it: “Open policymaking is the natural corollary of open data and transparency, requiring openness and allowing public participation at every stage of decision-making and implementation. It supports citizen action and positive involvement of the public in shaping laws and services.” This active engagement is obviously very different in scope and ambition to traditional consultation, but this doesn’t mean we’re starting from scratch. If, as the Government has said, in the future “all policies will be made openly”, we could learn from where there have already been attempts to achieve a different, more deliberative approach to decision-making – in local government and local public services.

Many of these local duties to involve citizens have been introduced through national policy. For example, Section 138 of the Local Government and Public Involvement in Health Act 2007 imposed a duty on all councils and ‘best value’ authorities to involve ‘local representatives’ when carrying out functions by providing information, consulting or ‘involving in another way’. Councils must engage with a balanced selection of the individuals, groups, businesses or organisations the council considers likely to be affected by, or have an interest in, the council’s functions (including children and young people as appropriate). For the National Health Service, legislation which came into force in 2003 placed a duty on certain organisations to involve and consult, but managers were not always clear when they had to involve people or how it was best to do this. The 2007 act aimed to make this clearer; the duty requires NHS organisations to involve users of services in the planning and provision of services, the development and consideration of proposals for changes in the way services are provided, and decisions affecting the operation of services. Section 242 of the earlier consolidated NHS Act 2006 was also supported by useful guidance on achieving ‘Real Involvement‘ from service users and communities.

The NHS’s operating framework further emphasised that this engagement should be ongoing, not just during periods of change. Primary Care Trusts and NHS providers should “…create greater opportunities for their communities to make their voices heard, raising awareness of those opportunities and empowering patients and the public to use them and LINks [Local Involvement Networks]; [and] take greater responsibility for communicating with their local populations and stakeholders to ensure better understanding of, and confidence in, local NHS services.” More recently, the NHS constitution underlines that public and user involvement should be part of the fabric of the NHS: “You have the right to be involved, directly or through representatives, in the planning of healthcare services, the development and consideration of proposals for changes in the way those services are provided, and in decisions to be made affecting the operation of those services.”

The reality of local engagement might only rarely meet these ambitions, and many local policymakers, managers and clinicians might question the extent to which the public can play a constructive part in decisions on reconfiguring clinical services. Views on the success of local LINks vary widely, and they are due to be replaced by Local Healthwatch organisations in April 2013 as part of the ‘new NHS’. But this gap between aspiration and reality may be more a matter of developing and using the right methods for engagement – and being seen by local communities to be making genuine efforts at this engagement – rather than a fundamental problem with the aspiration itself (these are after all public services, paid for by the public, and they should surely be accountable as such).

Organisations such as Involve (a partner in this discussion) have a wealth of experience about what works locally (Edward referenced some very useful resources in his blog) – surely some of these principles and practices could not only be better shared locally, but applied to national policy as well? As we’ve noted before, one of the reasons that the Government’s NHS reforms ran into such difficulty was the view held by stakeholders that the policy was developed in a fundamentally closed way rather than constructively and collaboratively. The Government says that empowering individual patients and increasing the local accountability of health services is at the core of its reforms; shouldn’t we apply the same principles of empowerment and accountability to the development of health policy as well as the operation of health services – and to any policy for that matter?

The Government’s Civil Service Reform Plan, where its committment to open policy was announced, makes no reference to existing local methods of engagement and how these could inform open policymaking at a national level. Nonetheless, national policymakers should look to the methods that have been used by local policymakers and planners to engage their communities and service users in decision-making – both the successes and the failures – and consider how the most effective approaches could be adopted and adapted for national policy. Open policy is an ambitious agenda. Making it real will require effective methods for engagement, but also ways of requiring that policymakers develop policy openly. As well as learning from local methods of engagement, do we need an equivalent national ‘duty to involve’ stakeholders in policy development?

3 Comments on “Open policymaking: Should there be a ‘duty to involve’ for national policy?”

  1. Andrew Ecclestone says:

    A duty to involve is long overdue, and – in my view – a logical extension of the inherent implication of the Freedom of Information Act that information held by government belongs to the public, and public authorities can only withhold it when it is in the public interest to do so (at the risk of oversimplfying things).

    However, there’s also the real problem, unmentioned in the piece above, or Edward Andersson’s blog, that the new Prinicples are a retreat from even the tepid commitment to openness found in the previous Code of Pratice.

    ‘Criterion 6’ of the now defunct Code deals with ‘Responsiveness of consultation exercises’, and pargraph 6.5 explicitly states that:

    “Consideration should be given to publishing the individual responses received to consultation exercises.”

    If memory serves, this is in fact a watered down version of what used (in earlier editions of the Code) to be a clearer commitment to making available the individual responses to government-run consultation exercises.

    You’ll note that while the Principles say that, “Increasing the level of transparency improves the quality of policy making by bringing to bear expertise and alternative perspectives, and identifying unintended effects and practical problems”, there is now not even a suggestion that agencies consider publishing the individual responses received to consultation exercises. The closest the Principles come to this is the weak statement that:

    “Departments should make clear at least in broad terms how they have taken previous feedback into consideration, and what future plans (if any) they may have for engagement.”

    This is, of course, of a piece with the minimalistic approach to participation shown by the government as part of its Open Government Partnership plans. But it’s one thing to be poor on participation, it’s another to be retreating down the steps of Arnstein’s ‘Ladder of Participation’ altogether.

    One recent example may highlight the problems that may arise from the dumping of the Code of Practice for weaker ‘Principles’. At the end of August, the Information Commissioner upheld the Ministry of Justice’s refusal (in response to an FOI request) to make available the responses it had received from organisations consulted pursuant to s. 5 of the FOI Act as to whether they should be designated as public authorities for the purposes of the FOI Act.

    The Commissioner’s decision, sadly, doesn’t even make reference to the Code of Practice. But with that document withdrawn and no real commitment to openness in the replacement Principles, it does make it harder to argue the case for disclosure before the Information Tribunal.

    In contrast, the Ombudsman in New Zealand (a non-OGP member state) has just published a case note on a complaint where she found there was no good reason to withhold responses to a government consultation exercise [PDF]:

    Click to access request_for_public_submissions_made_on_the_green_paper_for_vulnerable_children.pdf

  2. Andrew Ecclestone says:

    Or, to put it more succinctly, ‘How can I be involved, if I can’t even read what other people interested in the subject have said to the agency concerned?’

Let us know what you think

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s