Sofia Hamaz and Claire Preston: This is the third response to the series on consultation that Democratic Audit is editing on OurKingdom. Sofia Hamaz and Claire Preston produced a report on policy decisions over the availability of English language classes, commissioned by Carnegie UK. Previous articles in this series include Taking Consultation Seriously by Andrew Blick and Emily Hamilton, Nuclear Consultation: Public Trust in Government by Paul Dorfman and Quashing Convictions by Laurie Elks.
Consultation has become such a buzzword that it is difficult to remember what it is supposed to be about. The Cabinet Office’s code of practice on consultation 2008 provides an official answer. John Hutton, then Business Secretary, writes in the Foreword: “Effective consultation brings to light valuable information which the Government can use to design effective solutions. Put simply, effective consultation allows the Government to make informed decisions on matters of policy, to improve the delivery of public services, and to improve the accountability of public bodies.” So, it’s a useful policymaking and decision-making tool; and there is even a nod to democratic principle which was absent from earlier editions of the Code. But it is not clear that consultation is doing what it was designed for, unless you take a very cynical view on the wording.
This conclusion comes from a case study into a particular incidence of policymaking – the decision to change the rules on eligibility for English language classes, announced in October 2006. The decision meant that some students would have to pay for classes which had formerly been free. The English classes, known as ESOL (English for Speakers of Other Languages), are aimed at a mix, typically, of British citizens or residents from ethnic minorities, asylum seekers, refugees and migrants. The purpose of the case study was not to judge the rightness of the decision itself but to investigate what it revealed about how power is exercised in Britain today and the capacity for those affected by policy to influence decisions.
Consultation did take place as part of the policymaking process but the case study finds that the manner and timing of that consultation meant that it did not fulfil its potential to help set agendas, shape policy developments or improve accountability and that a lot of time and money was wasted before the criticisms of the policy were taken on board. The research also suggested that deliberately or otherwise, consultation can also serve as negotiating tool and face-saving device.
To take the manner and timing of the consultation first: no public consultation fed directly into the fundamental decision announced on 18 October 2006. So, the people most affected by the decision, the students and tutors, only came to the debate very late, when the basics of the decision were already set. In December 2006, after the decision had been announced, the government set in motion its main instrument of consultation, a Race Equality Impact Assessment (REIA). This process did not however, allow participants to determine whether the idea of change was a good one or whether the right questions were being asked. Decision making power in this sense was wielded much earlier on in the process. Also, there were many criticisms of the way the REIA was conducted, not least from Paul Mackney, then general secretary of UCU (University and College Union), which led the protest campaign. Somewhat devastatingly, he claimed that the REIA “didn’t involve those learners affected by the changes” - an allegation echoed by others we interviewed.
Nonetheless, the existence of the REIA, framed by Race Relations legislation, greatly encouraged policy makers to mitigate possible negative impacts that changes to ESOL funding would have had.
This then was a prime example of the government using consultation to fine tune policy rather than set agendas. In this context, consultation has the added advantage of appearing to be a legitimate reason for change. As Lord Greaves, who led a debate on the proposals in the Lords, points out, it allows policy proposals to be amended without the opposition party or the media crying U-turn. If proposals are found to be unworkable, the government, rather than be accused of incompetency, simply has listened and responded. Is this necessarily a bad thing? Only if incompetency really is behind the failures in the policy. Consultation should not be allowed to substitute for poor policy making in the first place. Also the consultation has to be carried out with a representative selection of service users and their comments listened to for the idea to work. Otherwise it is easy to see how it can be perverted into rubber stamping of poor policy.
Consultation not only serves as a useful alibi; our research also suggested it comes in handy as a negotiating tool. In an interview, the minister responsible for the policy change, Bill Rammell (Minister of State for Lifelong Learning Further and Higher Education) argued that it is best to start off a consultation exercise with a strong position so as to give people something to react against. It is true that controversy provokes interest. But then, why not start the discussion by suggesting that more rather than fewer people should be eligible for free classes? Perhaps because taking a strong initial position also happens to be a well known negotiating tactic. Go in asking for more than you really want. Listen to the other side, appear to compromise, and end up with what you wanted in the first place anyway. Worrying to think that this might be the way in which consultations are used.
Worrying too was Rammell’s talk of legitimacy. The announcement of the decision to changes the rules on eligibility provoked wide protest, some of which was channelled into the REIA and otherwise took the form of demonstrations and lobbying. Rammell, in his interview, was unapologetic about categorising some protesters as legitimate and others, by implication, as not. The illegitimate in his view were those who refused to take on board the unsustainable cost of funding the classes. They disputed the whole agenda of change. There are several reasons these outliers should have been listened to at the time.
First, didn’t Hutton say that hearing people’s views "allows the Government to make informed decisions on matters of policy”? But it seems the fundamental decision had been taken before the consultation which could inform it was held, and those who objected to it were deemed illegitimate.
Secondly, the outliers had a point, which the government acknowledged only after it was also made repeatedly from numerous “legitimate” sources. That point was that the changed rules on eligibility would be destructive to race equality and community cohesion. A key benefit of consulting ordinary people about government policy is that they can see issues which those working within the structures of government may be blind to. The public and many stakeholders don't think along departmental lines and as users of the services, they have an important perspective. The government acknowledges this to the extent that it uses consultation to refine policy. But dismissing as illegitimate those who dispute the assumptions behind policy change is to risk missing useful criticism, never mind its implications for democracy and “improving accountability of public bodies”.
Thirdly, the legitimate in this case tended also to be those more closely included in the policymaking loop. This is unsurprising but it matters because it reinforces the power of the already powerful and renders more powerless still those outside the loop – which surely goes against the whole idea of consultation.
Clearly, there was a sense amongst campaigners that, rightly or wrongly, the final call belongs to policy makers. As one Hackney student adamantly reminded us: ‘we will do whatever is in our powers, but whether the course will be paid for or for free, that decision is up to them’. The point is that ‘they’ root decisions in sound consultation.
Of course, there are other less formal ways to “consult”, outside official consultancy processes. Opinion can be collected from the media, blogs and protests. Consultancy should be, after all, primarily about listening, understanding and engaging with the public. And then of course, about representing the views you have heard.
For the full report see Power Moves - FINAL.pdf or visit http://democracy.carnegieuktrust.org.uk/democracy/publications/power_moves__exploring_power_and_influence_in_the_uk
Sofia Hamaz is a researcher and writer with Democratic Audit and the Centre on Migration Policy and Society (COMPAS). She specialises in issues around “race”, antiracism, migration and participation. With a background in youth work and education, she was previously Co-ordinator of the UK Race and Europe Network (UKREN) Young Muslims Citizenship Project. She has been translating from German for the Institute of Race Relations since 2005. She has a BA from Sussex University and an MPhil in Migration Studies from Oxford University.
Claire Preston is a researcher with Democratic Audit and is currently working with openDemocracy as Production Manager for the Convention on Modern Liberty. She has many years experience as a researcher and journalist and has particular interest in issues of democracy, human rights and migration. She has a BA in Politics from York University and an MA in Japanese Studies from the School of Oriental and African Studies (SOAS)
