Public Consultation – fruitful or farcical?

What makes a good public consultation?

I often write about a flawed or absent public consultation process. People keep saying to me: “We know how you are not supposed to do it, but can you not be constructive and suggest how a good consultation is set up?”.

Public consultation is a process that involves the public in providing their views and feedback, usually on a proposed Bill before it is let loose on the Oireachtas. In this blog I would like to discuss the elements of a good (general) consultation and how the efforts of the present (and past) governments score on that particular framework.

The timing of the consultation

 

The ideas, opinions and suggestions from the public should be invited whilst the policy under consideration is but a germ of an idea. There must be enough detail for an ordinary person to understand what they are being asked, as opposed to being asked to comment on a completed policy document. This is obviously a tricky balance, as there must be enough detail to allow the public to understand the issues at stake, and what they need to think about, but not so much as to make that process pro forma.

Article 6, Para. 4 of the Aarhus Convention:

“Each Party shall provide for early public participation, when all options are open and effective public participation can take place.” (my emphasis)

In other words, the policy must be able to change, significantly if necessary, if cogent arguments are presented by the public why this should happen.

The other balance that needs to be achieved is the balance between inviting as much discussion and input as possible, and actually getting the policy into legislation and implemented. Again, this is a tough one, but the Department concerned need to invite suggestions whilst the proposal is still in the brainstorming phase, rather than the current practice of inviting suggestions in the ink-drying phase. Similarly, the slavish adherence to the absolute minimum timeframe allowed (usually a month) is incredibly short-sighted. Where proposed legislation is contentious or will affect a large proportion of the public, one month of consultation is hopelessly inadequate. Flexibility is essential.

The other thing about timing is that the consultation should not be seen as having a beginning and an end (usually that one month). It should be recognised as a process, and policy makers should be alive to evolving suggestions which might be modified as the project continues, or where the policy has been in place for a while and can now be retroactively analysed.

To me this is the most important aspect of public consultation, with everything else paling in comparison. What our government calls public consultation is in fact public participation, where the numbers of people consulted and who responded are often cited, but with no details of how their ideas were actually implemented, which means they were not.

The invitation to consult

The initial invitation to consult must be done properly so as to attract public participation, and by as many as possible.

The public must not be treated like a child being fed line and verse, as they are capable of making sense of complex issues. At the same time, this does not mean that they are experts in any field of policy, and the information sheet must be written in language that is accessible to the ordinary person, with key terms and concepts being properly explained.

Stakeholders should be identified and sought out. Rather than hiding the invitation on the back page of the Gazette, or on the third layer of a website (current Government practice), the invitation should be emblazoned on the home page of the department concerned. In addition, the Department should seek out individuals and organisations that will be affected directly or indirectly by a project or a decision, as well as those who have the ability, experience or qualifications to influence the decision or policy, both positively and negatively. They can also be people who simply have an interest in the project. So, for example, an invitation may be published on Facebook pages of relevant organisations.

This really isn’t rocket science, and there are simple questions that can be asked before preparing and disseminating an invitation to consult. Questions that help identify the “public” or “stakeholders” might be:

  • Who is affected by this decision? – For example, the local community, neighbours, landowners, local businesses.
  • Who may have influence on the decision? – For example, community leaders, religious leaders, politicians.
  • Who knows about the subject? – for example, the academic community, NGOs.
  • Who has an interest in the subject? – For example, community groups, groups with special interests.

The value of good public consultation

One would think that this is a no-brainer – collective brain power and creativity must always be superior to a huddle of politicians and civil servants.

However, perhaps the greatest value of good public consultation is that it is both a requirement and a by-product of democracy. The process acknowledges the desire for people to have a say in decisions that affect their lives. More importantly, it provides an opportunity for the affected people (and interested parties) to have a say in decisions that affect their lives. At the same time, it provides the decision makers a better understanding of the stakeholders’ values, interests, issues, and concerns about the proposal to incorporate into decisions and ultimately empowers them to make better decisions. Finally, the process informs the public and helps them accept any resulting changes.

That is the ideal, the theory, but what really happens in practice?

Perhaps my favourite analysis is provided by Paul Hunt:

“All public consultations are a farcical optical illusion. The economic regulators have become extremely adept at conducting these ‘public consultation’ and interested Departments could learn from them – and probably will.

First, you announce what you intend to do – having already squared all the key interested parties who could cut up rough if you weren’t proposing things that were to their liking – and invite submissions from ‘interested parties’ and from the public.

Then, after a pre-announced lapse of time, you publish your final decisions, the submissions you received and some sort of response to these submissions. Focus on the submissions that are broadly supportive of what you have decided. You should have a fair few of these from the interested parties that you squared already. You will probably have to deal with a number of submissions that are critical of your decision. Some of these will be relatively easy to dismiss. Some critiques, however, may be more soundly based. You have to be very careful here. The first thing is to search for any error in a factual statement. It doesn’t matter how small or irrelevant it might be in the context of the critique advanced. Just seize on it and you can use it to demolish the entire argument. If the submitter is aware of this trick and manages to avoid falling foul of it, select a piece of the argumentation out of context and subject it to ridicule. If all this fails, simply select parts of the argumentation out of context and declare an inability to understand the point the submitter is making.

This is a pretty standard approach. The more experienced economic regulators have developed even more sophisticated techniques to ignore or dismiss critiques of their proposed decisions or actions, but the end result is the same. Once you’ve gone through this process you do can more or less as you like.

The only time this exercise comes to grief is when you upset one of the bigger interested parties which has a serious economic or commercial interest – and which has the interest and resources to mount a legal action.

At the end of the day final consumers and ordinary citizens will end up paying for the impact of the decisions you make – and they have absolutely no means of advocating or representing their interests collectively. So once you go through this process -and don’t upset any of the bigger interested parties – you’re in the clear.”

Public consultation as a process has huge potential for creating imaginative, practical, and problem-solving legislation. Unfortunately, those principles do not appeal to the insecure, the power-hungry, the greedy, or the corrupt.

About Neil van Dokkum

Neil van Dokkum (B. SocSc; LLB; LLM; PGC Con.Lit) Neil is a law lecturer and has been so since arriving in Ireland from South Africa in 2002. Prior to that Neil worked in a leading firm of solicitors from 1987-1992, before being admitted as an Advocate of the Supreme Court of South Africa (a barrister) in 1992. He published three books in South Africa on employment law and unfair dismissal, as well as being published in numerous national and international peer-reviewed journals. Neil currently specialises in employment law, medical negligence law, family law and child protection law. He dabbles in EU law (procurement and energy). Neil retired from practice in 2002 to take up a full-time lecturing post. He has published three books since then, “Nursing Law for Irish Students (2005); “Evidence” (2007); and “Nursing Law for Students in Ireland” (2011). His current interest is the area of disability as a politico-economic construct. Neil is very happily married to Fiona, and they have two sons, Rory and Ian.
This entry was posted in Democracy; Ireland; Fine Gael; Labour; Sinn Fein; Workers; Constitution, lobbying; democracy; political process; general election, Public Participation in Decision-making and Access to Justice in Environmental Matters; Aarhus Convention; Aarhus Treaty and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

2 Responses to Public Consultation – fruitful or farcical?

  1. Nigel says:

    The return of the Law is My Oyster once again shines a light under stones and reinvigorates those who were in despair of mindless diktat. The country needs the legal analysis; we, the public doubly so.

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