Consultation and Impact Assessment

There is nothing a government hates more than to be well-informed; for it makes the process of arriving at decisions much more complicated and difficult. - John Maynard Keynes

There is unfortunately much truth in the above quotation, and in the accompanying cartoon. Ministers in a hurry, and well meaning officials, all too often want to get on and make decisions, and engage in as little real consultation as they can get away with. It can be very difficult to counter this tendency but it can be worth quoting or paraphrasing the military doctrine that 'The first duty of a commander is reconnaissance.' This applies in spades to the permanent campaign that is a feature of much Whitehall policy making, as well as to one-off policy initiatives. The best laid schemes will certainly go badly awry unless supported by strong and open-minded consultation processes.

Commentators, including myself, used to argue that successive British governments had over many decades slowly abandoned telling the public how to behave and what to do ('Westminster knows best') and and instead had become much better at genuine consultation, recognising that modern citizens need to be led, with their consent, rather than orders around. But Jeremy Richardson published a rather depressing blog in 2018 in which he argued that that trend had been reversed. A consensual, collaborative and deliberative policy style had been replaced by a much more impositional style. But plenty of scope for good practice remains and there is excellent official guidance which you should certainly read as soon as you start thinking about tackling a policy issue. The key points are as follows.

Policy Objectives

It is often very tempting to accept a policy objective in the form that it is presented to you, without thinking too hard whether another objective - or a looser or tighter formulation - might not be better.

DCMS, for instance, seem to have allowed Sport England to spend billions of pounds since 2005, boosted by the 2012 Olympics, in order to increase sporting participation - and yet the numbers participating in organised sport have steadily fallen. The (figurative) goal posts were eventually moved so as to include a much wider range of physical activity, so including park runs, low cost gyms and mass participation cycling - none of which were created as a result of Sport England support. It looks very much as though the original objectives were misconceived and/or the department took a very long time to address the way their (our) money was being wasted.

Exploring Options

So you have identified a problem or opportunity, gained relevant experience, and identified all the necessary facts and opinions. What policy options are at your disposal? Put shortly, the Government can do one or more of four things if it wishes to change behaviour:

Exhortation means deploying all possible presentation skills, including getting key stakeholders on side, working with the media, leaflets, advertising, speeches and so on. As noted elsewhere, presentational issues should be considered early in any policy development process and effective presentation can sometimes achieve significant policy objectives on its own.

Nudging has become popular in recent years, though it can be criticised as being a deliberately covert way of forcing some one to do something that they would not do if they thought hard about it. A more detailed discussion of nudging and behavioural economics may be found on the Understanding Regulation website.

All too often, however, exhortation and nudging will be insufficient and you will need to move on and consider one of the next three options if you really want to have an impact ...

... But then you will find that Ministers have a strong aversion to raising taxes or spending money (which are two sides of the same coin), so they prefer you to offer new legislation or regulations – until they realise that this route too can lead to huge resentment amongst those who are to be regulated, and can also have a large impact on the economy. There is much to be said, therefore, for genuinely open consultation, seeking views on the true scale of the problem and on a wide variety of ways in which it might be tackled. And don’t forget to consult on the ‘do nothing’ option. It is often the best one!

Effective Consultation

There used to be a time, apparently, when the Government could simply tell the public what decisions it had taken. It then became necessary to explain why the decision had been taken, which in turn led Ministers to consult in advance of deciding their policies. Best practice is now to go even further and involve the public and key stakeholders at all stages of the policy process.

There are lots of different ways to do this and you should not simply duplicate what someone else has done before you. In particular, don’t limit yourself to written communications. Discussion groups, large formal meetings, informal meetings with individuals and the Internet all have a part to play. And even when preparing formal written consultation, there are a number of choices. Have a look at the detailed advice that is available on consultation procedures, and also look at a range of previous consultation documents and choose a format which best suits your needs.

Above all, remember that you are in policy-formulation or policy-implementation mode, so there is no need to be defensive. Indeed, you should positively encourage respondents to point out your mistakes and possible pitfalls. Good decision making depends on allowing or even encouraging dissent up to the point when Ministers have taken their decision. If your process is effective, and you take the responses seriously, you will find that you then avoid a very large number of traps that you would not have spotted by yourself.

You should therefore encourage those who seem to be able to take a wider view. Cultivate those who say unexpected things or comment candidly upon their organisation. Such people shine unaccustomed light on issues and can be invaluable contributors to the policy making process. Do not make the mistake of thinking that experts' opinions are necessarily correct. Much science is beyond doubt, but much softer scientific opinion, such as medicine and economics, may be distinctly flaky. Doctors will tell you that Medical facts (things we know to be true) have a half life of five years, and that Yesterday's heresy is today's orthodoxy and tomorrow's fallacy.

It is absolutely vital, of course, to consult those who will be responsible for delivering your new policies. They will have strong views about practicality, resources and communication. Ignore them at your peril. As Charles Dillow says, implementation is policy:-

Policy-making is not like writing newspaper columns. It's all about the hard yards and grunt work of grinding through the detail.  A failure of implementation is therefore often a sign that the detail hasn’t been thought through, which means the policy itself is badly conceived. Reality is complex, messy and hard to control or change. Failing to see this is not simply a matter of not grasping detail; it is to fundamentally misunderstand the world. If you are surprised that pigs don’t fly, it’s because you had mistaken ideas about the nature of pigs. Bad implementation is at least sometimes a big clue that the policy was itself bad.

Above all, talk to those who are unhappy with your policies. They often have a good reason, which you need to bear in mind whether or not you can change the policy, or its detail, as a result. And don’t hesitate to let your Minister have short note of what you have learned. It might just make him or her think twice.

If the subject of your consultation is particularly controversial, or if you are to meet a potentially hostile audience, or hostile media, you should remember the following basic rules:

Be careful to frame your consultation questions in a neutral way - see the nice example at the bottom of this web page.

Finally, remember that there is a crucial difference between releasing information and informing the public. The wholesale release of vast amounts of data does not of itself inform anyone. There should of course be no question of hiding or distorting information, but care should be taken to ensure that the overall effect of the release of information is to improve recipients’ understanding of the issues (and the uncertainties) rather than simply to add to the confusion.

The latest version of HMG's consultation principles is here.

Consultations Leading to Decisions

Regulators and other officials who are implementing specific laws need to consult those likely to be affected by their decisions - and indeed others who may have advice and information which might help them reach fair and sensible decisions. The terminology varies from institution to institution but -

  1. The formal process begins with the publication of an Issues Statement defining the decision that is to be made, and listing the main matters to be taken into account in reaching that decision
  2. At around the same time, there is a call for relevant advice and information
  3. Once a likely decision emerges, there is a 'minded to' document - which regulators often call Provisional Findings. It explains in some detail why the decision-maker is minded to make the decision in prospect.
  4. A final decision document, again with detail, is then published a little later, usually confirming the provisional decision, but sometimes not, if important new information or argument has come to light.

Publishing Taxpayer-Funded Research

The 2016 Sense about Science Missing Evidence report expressed concern that taxpayer-funded research is not always published in sufficient time for informed public discussion.  The reasons, in addition to political concerns about the timing of publication, may include uncertainty about peer review, about what counts as government research, and about what should be published in relation to policy announcements. "Yet delayed publication can be as damaging as indefinite suppression because it deprives parliamentarians, the media, NGOs and others of the timely access they need in order to be able to engage with policy formation in the light of contemporaneous evidence." Drawing up and announcing policy decisions before the media and public are able to scrutinise the expert advice that ministers have based it on can result in debate being "handicapped or stifled".

The report's author, Stephen Sedley, acknowledges that there will "always be cases in which government is doubtful about or dissatisfied with the quality" of research it has commissioned, but he argues that this should not justify withholding its publication, pointing out that departments should feel able to set out their grounds of doubt or disagreement with such advice when they do make it public. And delaying the publication of such research "simply to avoid political embarrassment" is not "ethically acceptable". 

Impact Assessment

The first Impact Assessment should include a clear statement of the policy objectives as well as an initial assessment of the risks, costs and benefits of regulation, as well as why non-regulatory options – including doing nothing – are unattractive. Later assessments will build on these foundations, adding more detail and more certainty, and they will be published as part of the formal consultation process and alongside draft legislation. It cannot be stressed too strongly that IAs are very important documents, whose preparation needs to be properly planned and resourced, and started early enough to form a genuine part of the decision making process.

Much the same advice applies if you are negotiating in Brussels. Again, there is much   excellent guidance, and either you or the Commission should prepare an impact assessment - also often known as a fiche d’impact.

Unintended Consequences

It is also important, whether you are imposing taxes, spending money, drafting domestic legislation or transposing European legislation, that you take care to avoid or mitigate unintended and unwanted consequences, and (if regulations are necessary) to regulate in such a way as to encourage compliance and deter evasion. Let’s look first at unwanted consequences.  Compliance is discussed separately.

H L Mencken once said that "There is always a well-known solution to every human problem - neat, plausible and wrong". The problem is that it is, by definition, very difficult to identify unintended consequences – and this is one of the main reasons why genuinely open-minded consultation is so important. It might help if I list the sort of unwanted consequence that can occur:

And civil servant turned academic John Hilton noted the following, after the introduction of employment benefit :

[When I visited the North East in 1912] a crowd of young men ... beset me each time I came into Newcastle station, wanting to carry my bag. I went to Newcastle on this present tour but no-one wanted to carry my bag. There are 6,000 unemployed men in Newcastle but none wants to earn a shilling by carrying a bag [for fear of losing unemployment benefit]. To 'be seen' earning a shilling is a terrifying prospect. The regulations may provide for such things but the unemployed man does not know what the regulations are and the last thing he wants is to stir up mud ... Beyond this is the barrier set up against a man working an allotment, keeping chickens ... How far can he go while keeping his title to benefit? No-one knows; better not to take risks.

Here is rather more tongue-in-cheek example:

And, anyway, people will adjust

It is also important to remember that you are dealing with a dynamic situation, not a static laboratory experiment. For instance, because we each seek to arrive at our personal balance between cost and benefit, we will intuitively adjust our behaviour to avoid, or mitigate the effect of an increased risk, and vice versa for a reduced risk. The observed effect of an increased or reduced risk is therefore often unpredictable. This particularly applies where (as in the case of road safety) most of us have intuitively established the level of risk with which we feel comfortable. To take a simple example, if a winding road is to be straightened or widened, you would not assume that drivers (or the NHS) would pocket the value of all the increased safety. Instead, most drivers would speed up – accepting some of the risk for themselves, and transferring some of the risk to pedestrians etc.

Another aspect of the same phenomenon is that the public or business community will usually adjust their behaviour to cope with an unwelcome development, or simply just get used to it. This is why environmental groups, for instance, are so keen to stop certain developments before they become established as precedents. Their response may seem to be out of proportion to the harm done by the proposed development but it might make a great deal of sense in the wider scheme of things. Do not therefore underestimate or patronise such lobby groups.

It is also often the case that widely divergent views are not so far apart as they seem. I was very struck by a 2012 report of two economists' supposedly very different attitudes to austerity. It turned out that they agreed on a great deal, and their policy recommendations weren't so far apart after all.

Remember, too, that the public's response to questionnaires depends very much upon the way that the question is put. There is a nice 2016 example to the right.

Indeed, once a policy decision has been implemented, it can be very difficult to tell whether it was correct, and it also becomes very difficult to get back to where you began. Who knows, for instance, whether it was right to give planning permission to certain large developments? But any attempt to knock them down would cause an uproar, from those who live in, work in or supply them, or from those who have simply grown fond of them (Battersea Power Station, for instance). I sometimes wonder what would have happened if our predecessors had known for certain that motor vehicles would end up causing one million deaths a year around the world. So don’t get too upset when a Minister takes an apparently illogical decision. The Great British Public will probably find a way of adjusting to the decision, if not actually circumventing it.


Martin Stanley

Spotted something wrong?
Please do drop me an email if you spot anything that is out-of-date, or any other errors, typos or faulty links.