The Law Reform and Public Policy Research Group hosted a workshop on 29 June on the topic of pre-legislative Consultation in Scotland. The workshop, which brought together academics, representatives from the Scottish Parliament, Scottish Government, Law Society of Scotland, Faculty of Advocates and the Scottish Law Commission focused on questions concerning the place, purpose and effectiveness of consultation; the burdens placed on the Scottish Government and Scottish Parliament by consultation; obstacles to effective consultation and the role of various groups (lawyers, academics, specific interest groups etc) in the consultation process.
The speakers and topics were as follows:
• Introduction: what we know about consultation and policy-making (Professor Paul Cairney, University of Stirling)
• The legal framework for consultation (Professor Tom Mullen, School of Law, University of Glasgow)
• Scottish Government perspective (Mr Simon Stockwell, Scottish Government)
• Scottish Parliament perspective (Ms Abigail Bremner & Ms Kate Berry, SPICe)
Paul Cairney shares his thoughts on the workshop below. This text previously appeared as a post on Cairney’s Politics and Public Policy blog.
What we know about consultation and policy-making
My second favourite phrase, as an undergraduate at Glasgow’s top University, was Brian Hogwood’s: ‘if consultation means everything, then maybe it means nothing’. It was a call to ‘unpack’ the term, whose meaning could range from cosmetic consultation in public to crucial interventions in private.
My first favourite was Grant Jordan and Jeremy Richardson’s ‘policy community’, which describes an important relationship between policymakers and some of the actors they consult (see also ‘informal governance’, including Alison Woodward’s example of the ‘velvet triangle’). The logic is as follows:
1. Policymakers are subject to ‘bounded rationality’: they cannot process issues comprehensively. By necessity, they have to make decisions in the face of uncertainty and ambiguity. Uncertainty relates to the amount of information we have to inform policy and policymaking. Ambiguity relates to the way in which we understand policy problems. The policy process is therefore about (1) the short cuts that policymakers use to gather information and understand complex issues, and (2) the ways in which policy participants compete to determine which information is used and how policymakers understand problems.
2. Policymakers and key actors form policy networks or communities. To deal with bounded rationality, they delegate responsibility to civil servants who, in turn, rely on specialist organisations for information and advice. Those organisations trade information for access to government. This process often becomes routine: civil servants begin to trust and rely on certain organisations and they form meaningful relationships. If so, most public policy is conducted primarily through small and specialist ‘policy communities’ that process issues at a level of government not particularly visible to the public, and with minimal senior policymaker involvement. Network theories tend to consider the key implications, including a tendency for governments to contain ‘silos’ and struggle to ‘join up’ government when policy is made in so many different places.
3. Note the relevance to our current focus on ‘evidence-based policymaking’. In most cases, policymakers use consultation to reduceuncertainty: they gather information to help identify the size of a problem on which they already have a view. In some, they use it to reduce ambiguity: only some actors will influence how they understand and try to solve a policy problem, and therefore what further information they will seek.
4. Note the importance of pluralist democracy to some policymakers. Consider the implications of bounded rationality to democracy: we put our faith in representative democracy, but ministers can only pay attention to a tiny proportion of their responsibilities. A lot of practical responsibility is in the hands of civil servants, who partly seek legitimacy by consulting far and wide, to generate the ‘ownership’ of policy among key actors, professional groups, and perhaps ‘civil society’. This takes place well before, for example, a government presents a draft Act to Parliament and, in many cases, it produces policy without subsequent reference to Parliament.
If you put all these things together, you can see the importance of different kinds of consultation.
Consider a simple spectrum of consultation. At one end is cosmetic consultation: policymakers are paying high attention and they already know how they feel about a problem. So, they consult as part of a ‘standard operating procedure’ in which governments seek legitimacy, but the consultation will not influence their decision. Perhaps it comes towards the end of their deliberations.
At the other end is super-meaningful consultation, but perhaps with a small number of key people: they get together regularly, identify the issues that deserve most attention, and agree on how to ‘frame’ or understand the problem.
So, in our discussions, we might discuss how a range of activities fit in: the ‘trawling’ exercises to gain as many views as possible; working groups to generate questions for consultation; commissions to process rather technical looking issues, generally out of the public spotlight; other ‘pre-consultation’ with key actors before public consultation; and so on.
You can also see how the ‘Scottish Policy Style’ or ‘Scottish Approach’ fits in
- Cultural. In the olden days we talked of new Scottish politics versus old Westminster: Scottish policymaking would be more consensual and participative; the Scottish Government would share power with the Scottish Parliament; the Parliament would be the hub for much consultation, or at least oversee the Scottish Government process; the Parliament would have a better gender balance; and, policymakers would not simply consult the ‘usual suspects’.
- Practical. In reality, most explanations for a Scottish policymaking culture relate to size and scale: it is easier for senior policymakers to form personal networks with key actors in interest and professional groups and with leaders of public bodies; and, a government with relatively low capacity relies relatively highly on external sources of information and advice.
- Storytelling. Note that the Scottish Government tells a particular story about its approach, built on high consultation and trust in public bodies, stakeholders and service users, which informs its approach to evidence gathering and policy delivery: the Scottish Approach to Policymaking.
An agenda for the study of consultation in Scotland
It is useful to talk of a Scottish style of consultation, but investigate rather than assume its distinctiveness, and to interpret that distinctiveness rather than assume it relates broadly to a Scottish political culture.
This is true even before we consider consultation in a multi-level system, of which the Scottish Government is one of many governments that groups may want to consult.
I usually do this research through interviews with pressure participants and civil servants, which often involves trying to separate the story we tell about Scotland (where everyone knows everyone else) from the other drivers for policy and policymaking (education, mental health legislation, general, more general, even more general).
Other methods worth discussing include consultation analysis (Darren Halpin used to analyse the number and types of responses to open consultations), networks analysis to gauge the interaction between policy makers and participants, and comparative analyses in which we examine, for example, the extent to which consultation on legal reform resembles that of other sectors. If not, what makes ‘the law’ distinctive?
Paul Cairney is a Professor of Politics and Public Policy at the University of Stirling. You can read his blog here.