Introduction
The CAB welcomes the opportunity to comment on the Cabinet Office’s revised Code of Practice on Consultation. As a generalist advice organisation with the key aim to exercise a responsible influence on the development of policies and practices, we regularly respond to consultation papers from virtually all Government departments, on the basis of evidence submitted to us by CABx.
Over the last year, we have responded to over 30 consultation papers, from 15 different Government departments and agencies. We are therefore well placed to comment on the effectiveness of the current Code in delivering good quality consultation papers across Government departments and agencies, and to highlight areas where reform is needed.
Consultation questions
1. Does the Government consult effectively at the moment?
Our experience is that Government practice is highly variable. At its best, departments treat consultation seriously and go to considerable lengths to ensure the process is inclusive and accessible. There have also been occasions where a detailed analysis of responses to consultation has been provided, along with feedback on the department’s response to the views of its consultees.
However in other cases the timescales have been totally disregarded, often quite unnecessarily as the policy implementation timetable was well known in advance, there has been little effort to ensure key stakeholders are aware of the consultation, and no analysis of the responses has been published.
This variation inevitably breeds a level of cynicism from consultees - that departments adhere to the principles of the Code where they genuinely want to consult effectively, but that where they do not wish to consult effectively (because they already know what they want to do, or because they want to move more quickly than the process allows), they will breach the principles, particularly in terms of the timescale and the provision of feedback.
At its most extreme, the Code enables Departments and agencies to exercise their discretion not to carry out such a "formal" consultation. We are concerned that in some cases important policy changes are not consulted on by way of formal written consultation at all. This is particularly serious where the Government decides not to include the detail of new policy in primary legislation or in regulations. For example in the case of Tax Credits Bill 2002, we raised in our briefings on the Bill our disappointment that the Government had decided not to set out clear rules, either in the Bill or in regulations, defining when overpayments would be recoverable, and how they would be recovered. Instead these were to be in a Code of Practice.
In such situations, we believe that it is then essential for codes of practice to go through a formal consultation process. We very much welcomed being part of the informal consultation group before, during and after the passing of the Bill and as part of this group having the opportunity to comment on the code in its draft form. But we do not believe that this removed the need for a formal written consultation period. We believe that formal consultation on this particular policy at an earlier stage may have reduced the significant problems now arising with this policy.
We would recommend that the section on Applicability be amended to address this issue and also to require that, in those limited circumstances where discretion is used not to consult, the Minister or relevant authority should nevertheless be required to state their reason for not conducting a formal written consultation.
The following are some examples of good and poor practice.
Good practice:
- OFT consultation on debt collection guidelines: 13 weeks allowed for responses. The final version of the debt collection guidelines contains feedback on the responses and how and why the OFT came to the decision they did on the most contentious parts of the guidelines. It was also clear from the feedback and the content of the guidance itself that the OFT always kept in mind the purpose of the guidelines - to protect vulnerable people from abusive debt collection practices.
- Consultation on draft Regulations implementing provisions in the Employment Act 2002 establishing statutory grievance and disciplinary procedures. The publication of the formal consultation document, with a 20 week consultation period, was preceded by meetings of an advisory group made up of invited key stakeholders (inc CitA), and also with a brief opportunity for members of the advisory group to comment on the draft consultation document before publication. During the consultation period, the DTI also ran a series of high-level breakfast briefings around the UK, aimed at businesses and other key stakeholders.
Poor practice: inadequate timescales:
- Department of Health consultation on pension credit and residential home care charges. This consultation was published on 30 July with a deadline of 5 September – i.e. a period of just over 5 weeks over the height of the holiday season. Yet the date of the implementation of the Pension Credit – 6 October - was know well in advance and so there was no obvious justification for the delay in the policy development and consultation process. Moreover, the fact that there was only a month between the end of the consultation period and the date when the policy would come into effect, made the consultation appear no more than a token process. Indeed in the event, no changes to the proposals were made despite the criticisms made by several consultees.
- Home Office ( and other departments such as DCA) consultations on immigration/asylum. Two recent examples: On 7 February 03, the Home Office Immigration & Nationality Directorate (IND) wrote to key stakeholders to say that it was planning to change its policy on the issuing of Home Office travel documents to former asylum seekers granted exceptional leave to remain only who have no travel document of their own. The consultation period closed on 14 Feb 03. There was no good pressing reason for the haste apart from the fact that the Secretary of State wanted the policy change as soon as possible. The new policy raised a number of practical questions, which we still have to raise with officials (i.e. the new policy is not sufficiently clear, but might have been if they had done a proper consultation). No changes to the proposed new policy were made as a result of the consultation.
- Another example: on 27 October 03, the Home Office and DCA jointly issued (by email) a consultation document (consisting of a 3 page consultation paper and a 1 page covering letter from the two ministers) on new legislative measures on asylum reform (to be included in a new Bill, expected in the Queen's speech). The closing date was by 17 November 03. The letter from the two Ministers justifies this simply by stating, "We believe that these are important and urgent reforms and intend to introduce legislation to enact the measures we have announced today as soon as parliamentary time allows. We are therefore seeking your comments as a matter of urgency". This is despite the fact that one of the five proposed measures has been under discussion for several years, and was specifically mentioned in the Feb 2002 white paper, but not included in the subsequent Nationality, Immigration & Asylum Act 2002.
Poor practice: no feedback before decision taken:
The ODPM consultation paper Tenancy Money: probity and protection, issued in November 2002. The deadline was 28 February 2003. A key consideration in the consultation paper was whether there should be legislation on this issue.
On 16 June 2003, the Minister made a parliamentary announcement stating that responses to the consultation were inconclusive and that the case for legislation was finely balanced. However no feedback or analysis of the responses was provided, and at the time of writing this is still awaited. This has made it difficult to have an informed debate on the Government’s decision not to include legislative proposals in the draft Housing Bill that has been under scrutiny over this period.
2. Is the proposed revised code an improvement on the existing code?
By shortening and simplifying the criteria, the Code is an improvement in terms of presentation and clarity. However some key elements have been omitted. The intention may be to include these in the accompanying guidance instead, but this will reduce their visibility and downgrade their perceived importance. Two areas of particular importance are the need for an assessment of the impact of proposals on groups likely to be affected and “whether there is a particular impact by gender, age, ethnicity or disability; in particular regions or types of areas; or on the socially excluded” (Criterion 2.2 in current code), and on conducting comprehensive analysis (Criterion 6 current code) of the responses.
3. Are the criteria clear?
Yes, see above; the concern is that comprehensiveness has been compromised in the process.
4.Is there anything within the criteria that you would change?
5. Is there anything missing from the code?
Criterion 1.ii. It is not clear why small businesses are singled out as the one group which should always be involved in discussions early in policy development rather than, for example, consumers. Where small businesses are a “relevant interested party” this would obviously be appropriate, but there are many areas of policy development where they are not. If any particular groups were to be highlighted, it would make more sense to instead draw attention here to hard to reach groups such as people from ethnic minorities or where English is not the first language, people with disabilities, and other commonly excluded groups.
There should also be a reference to involving the voluntary sector where appropriate, given the existence of the voluntary sector compact (Getting it right together).
Criterion 1v. For the sake of clarity, it should be explicit that the deadline is midnight on the date given.
Criterion 1.vi We cannot see why there should be a need for dispensation from the 12 week rule with regard to consultations dictated by EU processes. It is surely rather a question of monitoring the EU agenda and managing the process appropriately. Citizens Advice’s experience as the European Consumer Centre, in respect of consumer legislative proposals, has been that the DTI has used the EU proposals and issued a UK consultation, which has complied with the 12 week rule. Further, there has been an ongoing dialogue with stakeholders in the UK to engage them with EU proposals. This has not acted as a barrier for consul tees’ responding to the Commission direct too.
There is much emphasis here on the exceptions to the 12-week rule. It should be balanced by a sentence stressing the value of this timescale – that it is essential if representative groups are to be able to consult their members. A shorter timescale therefore compromises the democratic principle, and as a result the accountability of Government is impaired. The same applies to the suggestion that a shorter timescale is satisfactory for re-consultation on the basis of amendments made to an original proposal.
As outlined above, where ministers decide not to consult, they should required to make this clear, and state their reasons for it.
Criterion 2. iv. We welcome the point that it is important to be explicit about what is negotiable and what is not. This will enable consultees to avoid wasted effort and concentrate their resources on where they can have an influence on policy development.
Criterion 3.iii. Putting a consultation paper on the web is essentially a passive process; this places all the onus on the potential consultee to regularly trawl the website - on a daily basis if they are to make the most of the time limited consultation process. It would be helpful to repeat here the message in 1.ii that the key stakeholders or interested parties who have been identified at the outset should be sent the consultation document, either in electronic or in written form.
Criterion 4. This criterion should be expanded to include the elements of the current code relating to the analysis of responses. It is our view that the provision of detailed and careful analysis is one of the most underdeveloped aspects of the current consultation process. If this is it be addressed it is crucial that it has a higher rather than a reduced prominence in the revised code. The analysis should be qualitative and not simply a number crunching exercise. It is also important that the analysis identifies the source of particular views, especially where consultees have a vested interest in a particular outcome, and that it distinguishes between representative groups and individual respondents.
It is also crucial that the analysis does not appear to be biased -for example by detailing the responses which support the policy line which the Government is taking, but glossing over other arguments. The guidance on this could stress the value of employing an independent consultant to analyse the responses, to avoid this situation.
It is also important to ensure that senior policy advisers and ministers are able to read key arguments and key responses in full, rather than rely only on the abbreviated summary.
4.i We welcome the clear timescale of three months for the publication of the summary of responses. We would suggest that the Code makes it explicit that the norm should be for the feedback to be published prior to or along with announcement of the next steps for the policy. To make the announcement before the feedback has been published is not in line with open government, and also suggests that the consultation process may have been sidelined.
We would also suggest that, rather than simply placing the feedback on the web, departments should actively send electronic or hard copies of the feedback to all consultees.
Criterion 5 iv. The outcome of this collated data on compliance is likely to be of interest beyond the Cabinet Office. We would suggest that each department publishes annually its analysis of the extent of its compliance with the code. At a minimum the Cabinet Office should publish an annual report on the data, so that it is possible to compare Departments’ compliance with the code.
Criterion 6. This criterion is of a different order from the other five. The principles of Better Regulation relate to the content of proposals whereas the Code of Practice is concerned with the process of consultation. We suggest that if it is to remain, it would probably sit more easily in the guidance than in the code itself.
What would be helpful to include in guidance to departments?
The key areas are covered in the list provided. However we would particularly stress
- The need for guidance on best practice in effective consultation. The code is focussed on written consultation only; the guidance could be used to place this in a wider context, perhaps with a model of best practice and some worked examples, and
- the need for guidance on comprehensive analysis of the responses
The guidance should make reference to the voluntary sector compact Getting it Right Together, which aims to make a positive impact on the way Government consults with the voluntary sector. Whilst both Codes point in the same direction, they should ideally cross-refer so that officials are aware of both in planning their work.
Any further comments?
Our main concern is to see demonstrably greater compliance with the code. To this end we would suggest that a pro form is produced which all Departments are expected to include at the front of any consultation exercise, thus standardising the procedure. This would set out the Code criteria (too often these are simply put in an appendix) and, crucially, set out how the key requirements are to be met i.e.:
- The 12 week timescale and reasons for any departure from this
- How and to whom responses should be submitted
- Details of any other consultation mechanisms being employed (e.g. events, meetings)
- The date by which the analysis of the responses will be published and how this can be obtained
- Who to contact with any comments or complaints about the process
The current code promised (Page 4 para 8c) that there would be a register of forthcoming consultations to help organisations plan their work in advance. We are not aware that this has happened; it would be a very helpful development, as even the 12 week period is tight if we are to consult effectively with members as well as prepare a response.
We note that the there was commitment to publish the results of the evaluation of the effectiveness of the current Code two years after it was launched. We regret this has not happened; it would have provided a useful base for evaluating the current proposals. As we mention above, we would strongly recommend that the Cabinet Office publish a review of compliance by every Department on an annual basis, so that future progress can be properly monitored and any necessary corrective action taken.
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