APPENDIX 2: THE GOVERNMENT'S REVISED
CONSULTATION PRINCIPLES
Letter from the Rt. Hon. Oliver Letwin, MP, Minister
for Government Policy, Cabinet Office
As I promised the committee, we have now undertaken
a review of the impact of the Consultation Principles in response
to your report "The Government's new approach to consultation:
Work in progress" published on 10 January 2013.
The Review was led by the Cabinet Office and was
informed by an Independent Advisory Panel drawn from academe,
charities and businesses. The Panel has met regularly since April
and has considered the broad areas of concern covering consultation
practice which included: timing (length of consultations); engagement;
transparency; and quality.
Efforts were made to ensure that the review was as
thorough robust as possible. In coming to the recommendations
set out in this paper, officials engaged with panel members both
within the group and individually to maximise their input. To
facilitate these discussion, panel members were given access to
the evidence provided to the Committee. In addition, views were
sought from colleagues within the wider Cabinet Office (Open Policy
Making and the Government Digital Service) as well as those external
to the Cabinet Office, to include Departments, the Regulatory
Policy Committee and other interested parties. Some research was
carried out on international practice (e.g. USA; Australia; Canada;
New Zealand and Europe).
I attach the Consultation Principles with the revisions
that we propose to make following the review. The attached paper
by officials summarises the key discussion points and sets out
recommendations to address the key areas of concern.[10]
The Paper has been shared with the Panel and reflects some of
their comments, although they have not endorsed its conclusions
and it does not represent their views.
I welcome the Committee's views.
22 October 2013
The Revised Consultation Principles
This guidance sets out the principles that Government
departments and other public bodies should adopt for engaging
stakeholders when developing policy and legislation. It replaces
the Code of Practice on Consultation issued in July 2008. It is
not a 'how to' guide but aims to help policy makers make the right
judgments about when, with whom and how to consult. The governing
principle is proportionality of the type and scale of consultation
to the potential impacts of the proposal or decision being taken,
and thought should be given to achieving real engagement rather
than merely following bureaucratic process. Consultation forms
part of wider engagement and decisions on whether and how to consult
should in part depend on the wider scheme of engagement.
Policy makers should bear in mind the Civil Service
Reform principles of open policy making throughout the process
and not just at set points of consultation, and should use real
discussion with affected parties and experts as well as the expertise
of civil service learning to make well informed decisions. Modern
communications technologies enable policy makers to engage in
such discussions more quickly and in a more targeted way than
before, and mean that the traditional written consultation is
not always the best way of getting those who know most and care
most about a particular issue to engage in fruitful dialogue.
Subjects of consultation
There may be a number of reasons to consult: to garner
views and preferences, to understand possible unintended consequences
of a policy or to get views on implementation. Increasing the
level of transparency and increasing engagement with interested
parties improves the quality of policy making by bringing to bear
expertise and alternative perspectives, and identifying unintended
effects and practical problems. The objectives of any consultation
should be clear, and will depend to a great extent on the type
of issue and the stage in the policy-making process - from gathering
new ideas to testing options.
There may be circumstances where formal consultation
is not appropriate, for example, where the measure is necessary
to deal with a court judgment or where adequate consultation has
taken place at an earlier stage for minor or technical amendments
to regulation or existing policy frameworks. However, longer and
more detailed consultation will be needed in situations where
smaller, more vulnerable organisations such as small charities
could be affected. The principles of the Compact between government
and the voluntary and community sector must continue to be respected[11].
Timing of consultation
Engagement should begin early in policy development
when the policy is still under consideration and views can genuinely
be taken into account. There are several stages of policy development,
and it may be appropriate to engage in different ways at different
stages. As part of this, there can be different reasons for, and
types of consultation, some radically different from simply inviting
response to a document. Every effort should be made to make available
the Government's evidence base at an early stage to enable contestability
and challenge.
Timeframes for consultation should be proportionate
and realistic to allow stakeholders sufficient time to provide
a considered response and where the consultation spans all or
part of a holiday period[12]
policy makers should consider what if any impact there may be
and take appropriate mitigating action. The amount of time required
will depend on the nature and impact of the proposal (for example,
the diversity of interested parties or the complexity of the issue,
or even external events), and might typically vary between two
and 12 weeks. The timing and length of a consultation should be
decided on a case-by-case basis; there is no set formula for establishing
the right length. In some cases there will be no requirement for
consultation, depending on the issue and whether interested groups
have already been engaged in the policy making process. For a
new and contentious policy, 12 weeks or more may still be appropriate.
When deciding on the timescale for a given consultation the capacity
of the groups being consulted to respond should be taken into
consideration.
Making information useful and accessible
Policy makers should be able to demonstrate that
they have considered who needs to be consulted and ensure that
the consultation captures the full range of stakeholders affected.
In particular, if the policy will affect hard to reach or vulnerable
groups, policy makers should take the necessary actions to engage
effectively with these groups. Information should be disseminated
and presented in a way likely to be accessible and useful to the
stakeholders with a substantial interest in the subject matter.
The choice of the form of consultation will largely depend on:
the issues under consideration, who needs to be consulted, and
the available time and resources.
Information provided to stakeholders should be easy
to comprehend - it should be in an easily understandable format,
use plain language and clarify the key issues, particularly where
the consultation deals with complex subject matter. Consideration
should be given to more informal forms of consultation that may
be appropriate - for example, email or web-based forums, public
meetings, working groups, focus groups, and surveys - rather than
always reverting to a written consultation. Policy-makers should
avoid disproportionate cost to the Government or the stakeholders
concerned.
Transparency and feedback
The purpose of the consultation process should be
clearly stated as should the stage of the development that the
policy has reached. Also, to avoid creating unrealistic expectations,
it should be apparent what aspects of the policy being consulted
on are open to change and what decisions have already been taken.
Being clear about the areas of policy on which views are sought
will increase the usefulness of responses.
Sufficient information should be made available to
stakeholders to enable them to make informed comments. Relevant
documentation should be posted online to enhance accessibility
and opportunities for reuse. To ensure transparency and consistency
of approach, all consultations should be housed on the Government's
single web platform (GOV.UK).
To encourage active participation, policy makers
should explain what responses they have received and how these
have been used in formulating the policy. The number of responses
received should also be indicated. Consultation responses should
usually be published within 12 weeks of the consultation closing.
Where Departments do not publish a response within 12 weeks, they
should provide a brief statement on why they have not done so.
Departments should make clear at least in broad terms what future
plans (if any) they have for engagement.
Practical considerations
Consultation exercises should not generally be launched
during local or national election periods. If exceptional circumstances
make a consultation absolutely essential (for example, for safeguarding
public health), departments should seek advice from the Propriety
and Ethics team in the Cabinet Office.
Departments should be clear how they have come to
the decision to consult in a particular way, and senior officials
and ministers should be sighted on the considerations taken into
account in order to enable them to ensure the quality of consultations.
Departments should seek collective ministerial agreement
before any public engagement that might be seen as committing
the Government to a particular approach. Ministers are obliged
to seek the views of colleagues early in the policy making process
and the documents supporting formal consultations should be cleared
collectively with ministerial colleagues. If departments are intending
to use more informal methods of consultation, they should think
about at what point, and with what supporting documentation, collective
agreement should be sought. The Cabinet Secretariat will be able
to advise on particular cases.
This guidance does not have legal force and does
not prevail over statutory or mandatory requirements[13].
10 The paper by officials is published on the Committee's
website at:
http://www.parliament.uk/documents/lords-committees/Secondary-Legislation-Scrutiny-Committee/Response%20to%20the%20House%20of%20Lords%20-%20Oct%202013.pdf Back
11
"Where it is appropriate, and enables meaningful engagement,
conduct 12-week formal written consultations, with clear explanations
and rationale for shorter time-frames or a more informal approach."
Compact pp.] Back
12
Holiday period assumptions: Easter = 5 Working Days (1 Week);
Summer (August) = 22 Working Days (4.2 Weeks); Christmas = 6 Working
Days (1.1 Week) Back
13
Some laws impose requirements for the Government to consult certain
groups on certain issues. This guidance is subject to any such
legal requirement. Care must also be taken to comply with any
other legal requirements which may affect a consultation exercise
such as confidentiality or equality. Back
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