Should the Duty to Involve be repealed?

CLG’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 [email protected] 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).