Published on April 15, 2011

Should the Duty to Involve be repealed?

By Edward Andersson

Edward Andersson is European Associate for Involve and an established expert on methods of participatory decision making. He set up Participationcompass.org – one of Europe’s leading public engagement sites, and has advised a number of organisations on public engagement strategies, including the Home Office, the European Commission, the OECD, WHO Europe, UNDP Turkey and numerous Local Authorities and Health Trusts.

Picture of a book page on fireCLG’s new Best Value statutory guidance consultation proposes to repeal two statutory duties on local authorities: the Duty to Involve, and the duty to prepare a sustainable community strategy. This isn‘t a bolt from the blue; a letter from Grant Shapps, Minister for Housing and Local Government last year signalled the government’s intent to repeal the duty. At that time I wrote a blog on the issue which has now attracted quite a lot of controversy and debate. Given that the repeal of these two duties seems one step closer it is time to return to the issue. What exactly is being proposed?

The government wants to repeal the ‘Creating Strong, Safe and Prosperous Communities’ Statutory Guidance from 2008; a 58 page document which includes the two abovementioned duties, and replace this with a one page Best Value Statutory Guidance document. So we go from over 50 pages of guidance to one page -light touch indeed.

Davy Jones has mounted a passionate defence of the Duty to Involve. Many practitioners feel that getting rid of duty will make it more difficult to get engagement and consultation taken seriously.

I have sympathy with these points. I don’t advocate a wholesale repeal of the Duty to Involve and on the other hand I am not convinced that its works particularly well as it is.

There are strong arguments for a Duty to Involve:

1.       Many people feel that some rights are fundamental and should be enshrined in law; so the existence of the duty could be seen as a matter of democratic principle.

2.       Another argument is that laws are a vital precursor to changing the behaviour of organisations and individuals (for example the case of drink driving); so the Duty to Involve becomes crucial in creating a more open and transparent government over time.

3.       Finally a legal right gives citizens and civil society leverage to mount judicial challenges against unaccountable institutions of power.

I worry that we risk falling into an unhelpful debate here, reflexively defending the existing duty against attack without having a nuanced discussion. Because while in theory a duty to involve could be beneficial (for the reasons listed above) there is little evidence that the actual Duty to Involve is contributing to these impacts.

The duty in practice means that councils, police and fire services have to inform, consult and involve local people on the exercise of their functions. (Local health bodies have their own Duty to Involve which is legally separate).

The official guidance states that the duty “requires authorities to take those steps they consider appropriate to involve representatives of local persons in the exercise of any of their functions, where they consider that it is appropriate to do so.” Clear as mud…

With such vague guidance the duty is not an effective tool for legal challenge; councils in breach of it will quickly learn which boxes to tick to avoid court cases. The 12 week rule in the consultation code is an instructive example. It was meant to be a minimum requirement, but in practice it has often become a default maximum.

For practitioners legal frameworks are useful tools that can be used to force reluctant authorities to run consultations and engage. I’m not convinced that they are as useful for citizens. Perhaps because the Duty to Involve covers everything, nothing is done well as a result; there is no guidance on how to prioritising scarce engagement resources. The risk averse local authority can easily interpret the Duty to Involve to mean that it should do very little on almost every topic –spreading declining engagement budgets very thinly, thus reducing the budget for expensive (but useful) activities such as community development, capacity building and participatory budgeting in favour of a deluge of consultation papers.

If the duty is repealed some Councils will undoubtedly cut back massively on their engagement budgets. The obvious question is if this engagement was solely motivated by the duty in the first place was it actually doing more harm than good? I’ve seen first hand how damaging misleading consultations can be and recently outlined the cases when I feel organisations shouldn’t engage.  Cynicism amongst citizens is growing in response to ‘covering our back’ consultations, and I don’t see how the Duty to Involve is doing anything to stop this. Jon Harvey has outlined some key questions that citizens should ask about consultations to determine if they are genuine.

In short the existing Duty to Involve is too vague; it covers everything and thus nothing. The duty to prepare sustainable community strategies is at least focussed on a clear and tangible deliverable. Perhaps a general Duty to Involve should be replaced with a more specific duty, such as a right to be involved in budget decisions?

I am troubled by the fact that CLG included the repeal of the duty as a side note in the wider consultation. The question deserves a proper debate, one which I hope this blog will contribute towards.

Rather than having a simplistic ‘Save our duty’ campaign I’d like to have a discussion on how a legal duty could be improved in the future and also what the wider implications are of removing the Creating Strong, Safe and Prosperous Communities Statutory Guidance (which include much more than the Duty to Involve).

I’m interested to hear from citizens, consultation officers, community development workers, facilitators and other practitioners on the following points:

1.       Have you found the Duty to Involve helpful, harmful or irrelevant in your work?

2.       What do you think the impact will be of repealing the Duty to Involve?

3.       What do you think the impact will be of repealing the Creating Strong, Safe and Prosperous Communities guidance?

4.       Do you think the existing Duty to Involve can be improved? If so, what would you do to make it better?

5. Do you know of any situation when the Duty has prompted a council to engage the community where it wouldn’t have otherwise done so? Was this engagement successful or unsuccessful?

Please give us your responses by commenting on the blog below, emailing me at Edward@involve.org.uk or filling in this Survey.

We plan to submit the various views and opinions gathered via email and comments on this blog to CLG as a consultation response, so do let us know if you’re happy for us to include them or to list you by name.

You can also respond to the CLG consultation directly (deadline 14th June 2011).

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20 Responses to “Should the Duty to Involve be repealed?”

  1. April 15, 2011 at 4:23 pm

    As someone who is hoping to be elected onto my local council on the 5th May, I’m actually quite pleased by the proposed changes. Not because I don’t want to involve people in the council’s decision making, but because, as you state above, most councils’ implementation of the existing guidance seems to have become little more than an exercise in bureaucratic box ticking rather than a genuine attempt to solicit public opinion. Also, such consultations often sidestep the established process whereby elected councillors talk to their constituents and replace it with something managed solely by unelected insiders. I don’t think that’s helpful for democracy.

    On the whole, I’d rather see local authorities held to account at the ballot box and through openness of information and transparent decision making processes. And I think that the most important factor in getting people involved is to make sure that they have the information they need in order to be able to make useful contributions and offer them clear communication channels with which to do so. if a member of the public knows that, say, there’s a proposal to build a new bus stop in a place that they think is inappropriate, and they also know that their councillors are willing and able to listen to their concerns, that’s far more effective a form of engagement than a top-down consultation process which is only interested in getting answers which match an option on the questionnaire.

    • Edward Andersson
      April 18, 2011 at 2:12 pm

      Good to hear from you again Mark. Glad you brought in the role of councillors in all this. As you said in some cases elected members feel sidelined by council run consultations and engagement. This is a great shame; councillors are an underused resource in public participation, as they are usually very knowledgeable about local issues and local needs.

      When you write “openness of information” do you mean that you’d like to keep the bits of the duty to involve which relate to the duty for councils to provide information, but scrap the bits that relate to consultation?

      A few weeks ago we held a seminar on the future role of councillors and you might find the resulting report interesting.

      • April 19, 2011 at 8:08 pm

        What I’d like to see is a presumption that all council information will be published unless there are good reasons not to. I know that councils are subject to the Freedom of Information Act so the information is extractable by those with the time and inclination to do so, but in my opinion councils (and other public bodies) should be pre-empting that by publishing pretty much everything that matters before people even need to ask. And I’d like to see greater consistency across different councils in the way that they publish information, so that it can easily be aggregated and re-published in a way that’s more accessible (eg, by the likes of MySociety). I think that greater openness will itself lead to greater involvement, without any need to actively solicit involvement by means of top-down consultations – just let people know what they need to know, and be ready to listen when they respond to it.

        The report does look interesting, thanks. There’s a lot in there which reflects what I’ve already been thinking.

  2. April 18, 2011 at 12:03 pm

    I think the argument about tick-boxes and that on achieving culture change is a dangerous one.

    First of all, the duty is NOT just about “top down” consultations. It is a duty to inform, consult and involve. As Mark says, information is a precondition to effective involvement, and this duty gave people the right to expect appropriate information. Of course, some local authorities didn’t adhere to the spirit of the law but it gave us all the right to expect it and to demand it when it wasn’t provided.

    Secondly, ideally we would all prefer a legal right for everyone to participate in decision-making on local issues. We don’t have that at present but the duty to inform, consult and involve is close to being a de facto right to be informed, consulted and involved. I can see no advantage in it being repealed UNTIL or UNLESS a legal right to participate is offered as an alternative. It is not on the agenda now so it seems elementary to me that we keep what we have got.

    Third, some things have to be codified in law and the passing of such laws play a critical role in the culture change that we all agree is needed. But this takes time. The duty has only been operative for just under two years and ironically (or cynically, you might say by design) was probably just about to come into its own as people considered using the duty as a bulwark against cuts they had had no say over.

    Most local participation practitioners I have been in contact with are outraged and appalled by the proposed repeal of the duty. they understand very clearly what message it sends out. And I’m afraid it is not that the Government intends to change the culture of engagement in more effective ways – quite the opposite !

    • Edward Andersson
      April 18, 2011 at 3:04 pm

      Davy,

      I agree that the duty is very much broader than just consultation. Informing is important, and is probably easier to enforce in a meaningful way than the consultation or involvement requirement. For me this forms part of why the duty needs to be sharpened. I’d rather have a more targeted duty; one which councils could actually be measured against.

      The one area where I think I disagree with you is whether the duty is an effective legal tool for citizens to use to appeal against cuts. The incredibly vague guidance simply says that local public bodies should engage ambiguous ‘representatives of local persons’ in issues where the public body ‘deems appropriate’. This is not a strong foundation on which to build legal cases on.

      Even if it were, I believe that community groups need to make the legal case against the cuts themselves rather than the decision making processes, if they want to stop the cuts rather than simply delay them. Looks at what happened when the Government Nuclear Debate or London Councils’ Consultation on their grants scheme were found unlawful by the courts. In both cases the public body simply went back to redo the consultation, this time taking the time to tick all the boxes. This represents a stay of execution rather than a solution to the problem. In my view the duty to involve is a stalling tactic for campaigners.

      Many practitioners are unhappy about the removal of the duty. They have reason to be; the duty is a useful tool for professionals to convince reluctant managers that they must invest in this area. Without the duty budgets and jobs are likely to be slashed. I can see why consultation officers, independent facilitators and community development workers oppose the government’s plans. However many citizens I have spoken to are less worried about the duty and more about the amount of misleading consultations they face on a daily basis.

      A knee-jerk repeal of the duty without considering what we need in its place is a bad decision; but it also wrong to retain the duty as it is. We need regulation to do two things: firstly to act as a symbol and values statement of what it is important that public bodies do, and secondly to provide a way to track progress and hold public bodies accountable for adhering to the spirit and not just the letter of the law. My experience is that the current duty does the former but not the latter.

    • April 19, 2011 at 8:16 pm

      My point is that a democratic institution, such as a local authority, has engagement and consultation built in to its very fabric, and as such doesn’t need a spurious “duty to involve” added to the top of it. To use an analogy, it’s a bit like imposing a “duty to make people feel better” on the NHS – they don’t need to be told to do that, because doing that is an intrinsic part of what they are.

      If it so happens that councils aren’t getting feedback from their electorate about what they’re doing and are making decisions without any accountability or transparency, then the solution is to fix the problem itself – a lack of functional democracy – rather than apply a statutory sticking plaster which merely masks the underlying issue. A well-run local council shouldn’t need organised consultations to know what people think – it just needs active and committed councillors and a policy of being open about its decision-making processes. And if it doesn’t have either or both of those then something is far more fundamentally wrong than a mere lack of consultation itself. Councils don’t need “local participation practitioners” – they need democracy.

  3. April 19, 2011 at 3:23 pm

    An interesting discussion. I am not sure what I think overall but I would make two observations;

    1. Having something as a legal right ultimately means that public agencies can be challenged through judicial reviews etc… in the courts. As important as this is (and Davy’s point about challenges around cuts consultations is a good one) it actually creates quite a distance between citizen and state i.e. one where the threat of the lawsuit hangs over negotiations.

    2. Those individuals and groups that are well connected, articulate and well resourced will be good at having their voice heard by public agencies almost regardless of the legal framework. Repealing the duty will not change that.

  4. Bill McCallum
    April 19, 2011 at 9:05 pm

    Although the debate on repealing is important, much more important is the failure of LA’s to actually involve communities in a meaningful way.

    Far too often, we have seen examples of LA’s making sweeping changes without consultation, but examples of “Best Practice” are few and far between.

    It’s common-place for LA,s to have “the usual suspects” (those in communities who work with LA’s and are seen as the acceptable face of community consultation, usually with an agenda to protect, and usually community & voluntary umbrella bodies who rely on LA funding), but anyone who is openly critical is excluded.

    I feel that the current system should remain, even extended to ensure that real consultation takes place instead of “lip service”.

  5. Matthew
    April 20, 2011 at 11:49 am

    I feel the duty to involve should be strengthened not weakened. Having the duty far out weigh the drawbacks. It is not perfect but it far batter than nothing. The duty supports me at work and helps promote the need to do things properly. I see the impact day to day the duty has made unlike many people that don’t work in my field at a local government level.

    Yes there is a threat of legal action against authorities but this should make the process more transparent than before. Does anyone know of any cases where people have used the duty to involve to challenge decisions etc? Please let me know.

    Other legal processes such as the LDF and the equality act are mainly implemented as tick box exercises, welcome to local/central government.

    Councillors have a role as decision makers but should use output of engagement rather than ignore them. The very low levels of people voting show they aren’t representative of the community especially when most of them seem to be retired …………

    If this country wants to be more active in decision-making there needs to be a monumental change in culture. This is within a community and at government level. We as a country lag far behind others.

    I feel removing the duty to involve makes it easier for authorities to cut budgets and actually goes against big society,

    I would like to write a lot more but need to get back to work!!!

  6. April 21, 2011 at 8:04 am

    Edward, as a participation practitioner who gets paid for supporting councils to implement the Duty, I’m inclined to agree that the duty to inform, consult or involve in another way doesn’t, in itself, require public authorities to involve people in any meaningful way. I come across lots of frustrated officers who find themselves having to do the minimum to meet the legislation, but without the resources to translate that into anything approaching genuine participation or empowerment. The result for workers and members of the public alike is disillusionment with the whole idea of involvement.

    I’m interested in the interface between the Duty to Promote Equality (also up on the Red Tape Challenge) and the Duty to Involve. Taken together, these two bits of legislation could be interpreted as requiring public bodies to inform, consult and involve in a way that facilitates dialogue and promotes understanding (had we kept the strategic Socio-economic Duty, this would have been stronger still.). I’m not aware of any legal challenges to public bodies’ informing consulting or involving on equality grounds. Does anyone know if there have been?

    I’m further concerned that non-deliberative citizen involvement on matters of detail such as planning decisions or whether to site wind turbines in any particular back yard can lead to decisions which are in the interests of a more powerful minority, further disempowering and disadvantaging the majority.

    I’m thinking of a “Duty to Empower” – which requires authorities to engage with communities and promote dialogue about the issues that matter – and to enter into a “contract” to deliver the things that will improve people’s lives on a bigger scale. I’m fully aware that the concept of empowerment is a tricky one, maybe an impossible one, to frame legally – but hope this gets the idea across and stimulates further discussion.

    • May 5, 2011 at 12:21 pm

      I don’t know so much about the how the Duty to Involve has/hasn’t been implemented, but certainly the duties to promote equality have been very very useful in terms of increasing involvement of equalities groups, and I agree with Michelle that the relationship between these duties is interesting.

      The equality duties themselves provided a requirement to consult or involve equality groups in decisions that affected them. This was particularly strong in the disability duty which specified ‘involvement’ over ‘consultation’, though this emphasis was lost when the three separate equality duties were combined in the Equality Act last year.

      There has been a legal challenge around involvement using the equality duties. In 2009 Southall Black Sisters took Ealing Council to court over its decision to cut funding for specialist BME domestic violence services. Part of the case hinged on the fact that Ealing Council carried out consultation on an equality impact assessment after the decision had been taken. This meant the consultation was meaningless, and the judge’s statement describes it as ‘a clear error’. Read more about the case at http://www.southallblacksisters.org.uk/savesbs.htm

      See also this guide about the equality duties which includes a section on consultation
      http://www.nationalequalitypartnership.org/index.php/keeping-it-legal/

      On a separate note I saw this interesting article on the False Economy blog about the removal of duties more generally. http://falseeconomy.org.uk/blog/the-governments-silent-bonfire-of-the-safeguards

  7. April 26, 2011 at 12:58 pm

    The duty to involve hasn’t achieved a lot (yet). But scrapping the duty to involve, as it can be called “red tape”, simply begs the question of what else instead. I think that the question that should be asked is how to create a way for citizens to have rights; to be engaged, informed and consulted, and so changing the debate to bottom up rights rather then top down responsibilities.

    • Edward Andersson
      May 5, 2011 at 6:07 pm

      Good point. The question of what replaces the duty hasn’t been raised at all by the government. Glad to see the debate is happening, even without official sanction.

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