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Citizen Participation: A Critical Look at the Democratic
Adequacy of Government Consultations
John Morison∗
Consultation procedures are used increasingly in the United Kingdom and elsewhere. This
account looks critically at consultation as presently practiced, and suggests that consulters
and consultees need to do much more to ensure both the participatory validity and
democratic value of such exercises. The possibility of a “right to be consulted” is
examined. Some ideas from a governmentality perspective are developed, using the
growth of localism as an example, to suggest that consultation is often a very structured
interaction: the actual operation of participation mechanisms may not always create a
space for an equal exchange between official and participant views. Examples of best
practice in consultation are examined before consideration is given to recent case law
from the UK seeking to establish basic ground rules for how consultations should be
organized. Finally the promise of consultation to reinvigorate democracy is evaluated and
weighed against the correlative risk of “participatory disempowerment”
The Growth and Role of Consultation
Consultations are becoming ubiquitous in modern governance, particularly in the United
Kingdom which is the main focus of this account.1 In part this is about trying to bring a
closer democratic engagement in circumstances where formal electoral politics often
seems sterile. Consultation, particularly where it can adopt the reach and immediacy of
the internet through online engagement, seems to offer a direct way of bringing
government nearer to the governed and a chance to reinvigorate democracy.
Referendums may now seem to be a somewhat dangerous democratic instrument but
consultations appear as a safer option for governments seeking a degree of democratic
legitimacy. It often seems that there cannot be a legislative or policy proposal that is not
preceded by some form of consultation. The traditional regime of Green paper followed by
White Paper, with perhaps a little discussion with interested groups or lobbyists, has given
way to a more elaborate processes seeking the views of a wider range of interests.2
Despite the fact that, as Davidson and Elstub point out, the culture of democracy and
nature of government structures in the UK have never been particularly suited to
deliberation,3 there have been a variety of experiments over the last quarter century.
** School of Law, Queen’s University Belfast. The author would like to thank the participants at various
conferences where these ideas were developed, various colleagues, including The author would like to thank
the participants at various conferences where these ideas were developed, various colleagues, including
Professors Gordon Anthony and Amnon Reichman, and the editor and anonymous reviewers for helpful
suggestions.
11There is of course a worldwide and international context for consultation. The United Nations Agenda 21
on sustainable development calls for “the broadest public participation” and urges “the active involvement of
the non-governmental organizations and other groups” (see
https://sustainabledevelopment.un.org/content/documents/Agenda21.pdf). The European Commission is
attempting to redress the disconnect with its institutions felt by many of its citizens through a variety of
initiatives including a “Your voice in Europe” consultation webpage and its Citizens’ Dialogue initiative (see
http://ec.europa.eu/yourvoice/index_en.htm, and http://ec.europa.eu/citizens-dialogues/ (visited 14th
February 2017). See also D Friedrich, Democratic Participation and Civil Society in the European Union
(Manchester: Manchester University Press 2011).
2 See further J. Morison, “Models of Democracy: From Representation to Participation?” in J. Jowell and D.
Oliver eds. The Changing Constitution 6th Edition. Oxford University Press (2007). Pp.134-156.
3 S. Davidson and S. Elstub, “Deliberative and Participatory Democracy in the UK” 16 British Journal of
These have involved citizen juries, deliberative polls and participatory budgeting,
sometimes with an information and communication technology (ICT) element.4 However
most consultations are more prosaic, with the online element restricted to a webpage
containing a link to a .pdf document.
The UK Government’s website page for “Consultations” lists 698 consultations published
in 2016 alone, out of a total of 3,642 since the decade began.5 Devolution has intensified
the emphasis on consultation. The Northern Ireland Act 1998 initially led the way through
its s. 75 requirement that public authorities promote equality of opportunity, and consult
widely about the effect of their policies on persons of different sex, religious belief, political
opinion, racial group, age, marital status or sexual orientation, and those with a disability or
with dependents. The Scottish Ministerial Code commits the Scottish Government “to
develop procedures which make possible a participative approach to the development,
consideration and scrutiny of policy and legislation”, and it has established a “Consultation
Hub”.6 Participatory budgeting too has received a boost in Scotland with a commitment in
2016 to spend an extra half million pounds in this way.7 In Wales there is not only a list of
consultations online but the Council for Voluntary Action maintains a webpage detailing
consultations from various sources where it offers to advise and to coordinate responses.8
The other consultation requirements in the original architecture for Welsh devolution are
now updated in the Government of Wales Act 2006 which has a chapter from ss.72-82
entitled “’Inclusive’ Approach to Exercise of functions” detailing how consultation should
take place in relation to a whole range of schemes from local government to business, and
regulatory impact to sustainable development. There are also particular areas where
enhanced consultation is required. For example, the Planning (Wales) Act 2015 requires
Minsters to make a statement on their proposals for public participation and a full report on
its success.
Indeed this sort of approach, where specified areas of development are the focus for
greater levels of consultation, is part of a more general trend. For example in England the
Town and Country Planning (Environmental Impact Assessment) Regulations 2011 give
effect to the EU’s Environmental Impact Assessment Directive 20011/92 EU requiring
public bodies to conduct a formal consultation process with both the public and a range of
statutory consultees.9 At more general level the public sector equality duty created under
the Equality Act 2010 requires a regime of impact assessments and consultations.10 As
shall be discussed further below there are a number of initiatives developing ideas of
Politics and International Relations (2014) 367–385.
4 For example, in the case of participatory budgeting (PB) the Labour government published a draft PB
strategy in 2008, stating it was its ambition that PB be used to fund housing and other projects in every local
authority area by 2012 (see
http://webarchive.nationalarchives.gov.uk/20120919132719/www.communities.gov.uk/documents/communiti
es/pdf/727993.pdf ). However, as the Department of Communities and Local Government, Communities in
the driving seat: a study of Participatory Budgeting in England: A Final Report (DCLG 2011) indicates, this
has fallen away as a national strategy, although experiments continue in local authorities and with the
Scottish Government.
5 See https://www.gov.uk/government/publications?publication_filter_option=consultations (visited 14th
February 2017).
6 See The Scottish Ministerial Code (2015) para. 3.2(c) and https://consult.scotland.gov.uk .
7 See the announcement at http://news.gov.scot/news/councils-giving-more-power-to-people (accessed 25th
January 2016) and the website at http://pbscotland.scot.
8 The Welsh Government’s consultation site can be found at http://gov.wales/consultations/?
lang=en&status=open. The WCVA site is at http://www.wcva.org.uk/what-we-do/policy-and-
influence/consultations (visited 30th September 2016).
9 See further the National Planning Policy Framework for England who provide guidance on consultation at
http://planningguidance.communities.gov.uk/blog/guidance/consultation-and-pre-decision-matters/ .
“localism” which attempt to facilitate local engagement and the translation of proposals
developed there into policy.11 The Sustainable Communities Acts 2007 and 2011 provide
a bottom-up mechanism to require central government to give effect to local authority
proposals that arise from grassroots initiatives directed towards local sustainability and
social well-being (defined in the Act as “the economic, social and environmental well-
being of the authority’s area” and covering “participation in civic and political activity”). The
Local Democracy, Economic Development and Construction Act 2009 imposes a duty on
local councils to promote understanding of the democratic arrangements of the authority
and how citizens can involve themselves.
All of these initiatives in particular areas suggest a continuing interest in some parts of
some of the governments across the devolved United Kingdom in broadening and
deepening the way in which they interact with citizens. However does this mean there is
anything like a “right to be consulted”?
Is there a general “right to consultation”?
At the most general level, the Universal Declaration of Human Rights (UDHR) states that
“Everyone has the right to take part in the government of his country, directly or through
freely chosen representatives,” and further that “The will of the people shall be the basis of
the authority of government; this will shall be expressed in periodic and genuine elections
which shall be by universal and equal suffrage and shall be held by secret vote or by
equivalent free voting procedures”.12 This is of course less about consultation and more
directed towards establishing a first generation basic political right along similar lines to the
International Covenant on Civil and Political Rights (ICCPR) which enshrines a right of
self-determination to all peoples, so that “they freely determine their political status.13 The
International Labour Organisation Convention 169 (ILO C169) on the Rights of Indigenous
and Tribal Peoples in Independent States asserts a similar, very general level right to prior
consultation for such peoples regarding development plans that may affect their ”lives,
beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use”.14
At a national level there are sometimes more binding requirements to consult. These may
arise out of particular statutory requirements and can give rise to challenge in the courts if
not properly carried out. For example National Health Service providers and
commissioners in England have a statutory duty to consult patients and the public on the
range of health services and the manner of their delivery.15 Similarly, for example, the
decision by a public body to outsource service provision can be challenged on judicial
review grounds for breach of the consultation requirements under s3(1) of the Local
Government Act 1999.16 Sometimes this duty to consult can go beyond a public body and
rest on other entities too.17 However more interesting is the issue of whether there might
be a general duty to consult outside of any statutory requirement. The general position
10 See further D. Pyper, The Public Sector Equality Duty and Equality Impact Assessments, House of
Commons Briefing Paper Number 06591, (22 January 2015 ).
11 See further the policies outlined at https://www.gov.uk/government/policies/localism (visited 18th January
2016) and G. Bentley and L. Pugalis, (2013) “New directions in economic development: localist policy
discourses and the Localism Act”, Local Economy. (2013).
12 Universal Declaration of Human Rights article 21(1), 21(3)
13 International Covenant on Civil and Political Rights, article 1(1). This article works in tandem with Article
25 (b) , which guarantees all citizens the ability ‘to vote and to be elected at genuine periodic elections’
14 The International Labour Organisation Convention 169 on the Rights of Indigenous and Tribal Peoples in
Independent States, 1989, Article 7(1). Only some 20 countries have ratified this to date.
15 See Section 242(1B) of the National Health Service Act 2006, as amended by the Local Government and
Public Involvement in Health Act 2007
16 See R(Nash) v Barnett LB [2013] EWCA Civ 1004. The Local Government Finance Act 2012 also
introduces a requirement that local authorities publish and consult interested persons on any draft Council
Tax Reduction Scheme and this too has given rise to litigation. See below.
was expressed in R (Harrow Community Support Ltd) v Secretary of State for Defence18
where the court summarized the law in the following terms:
“A duty to consult does not arise in all circumstances. If this were so, the business
of government would grind to a halt. There are four main circumstances where
consultation will be, or may be, required. First, where there is a statutory duty to
consult. Second, where there has been a promise to consult. Third, where there has
been an established practice of consultation. Fourth, where, in exceptional cases, a
failure to consult would lead to conspicuous unfairness. Absent these factors there
will no obligation to consult.”19
The Supreme Court considered this recently in R (ota Mosley) v London Borough of
Haringey.20 Lord Reed took the view that there is “no general common law duty to consult
persons who may be affected by a decision” but where there is a legitimate expectation of
such a consultation, a common law duty arises. As Lord Reed put it
“A duty of consultation will however exist in circumstances where there is a
legitimate expectation of such consultation, usually arising from an interest which is
held to be sufficient to found such an expectation, or from some promise or practice
of consultation.”21
Lord Wilson in the same case pointed out that a duty to consult may arise “in a variety of
ways” but in particular by the common law duty on a public body “to act fairly”.22 This is
rather different perhaps from a democratic right to participation, and relates more to ideas
about good administration and procedural fairness there. As Lord Wilson puts it, where
the common law infers a duty to consult “the search for the demands of fairness in this
context is often illumined by the doctrine of legitimate expectation”. On one reading this
would seem to take this sort of consultation right out of a democratic, participatory
classification – relating to hearing voice and maximising engagement - and into
something more akin to a rule of law inspired right protecting individuals from arbitrariness.
There is however some uncertainty about this in the different judgments within this case.
Lord Reed (with the support of Lady Hale and Lord Clarke) took a slightly different view
from that of Lords Wilson and Kerr and maintained that consultation in these circumstance
17 For example, in certain circumstance an employer is required by the Collective Redundancies Directive
to consult employees about redundancies and both the European Court of Justice and national courts have
intervened on occasion to ensure the efficacy of such a process. (see Junk v Wolfgang Kühnel (Case C-
188/03) and the Employment Appeals Tribunal decision in Leicestershire County Council v UNISON,
UKEAT/0066/05/DM. A similar duty falls upon an employer who wishes to make certain major changes in a
pension scheme.
18 [2012] EWHC 1921 (Admin). The claimants, residents of a tower block in Leytonstone in London, sought
judicial review of the decision by the Secretary of State for Defence to deploy military personnel and a
ground based air defense missile system on the roof of their building during the Olympics. Among the
grounds for review argued was the failure to carry out an adequate consultation process. (Other grounds
included challenges based on the public sector equality duty, Article 8 and Article 1, Protocol 1 of the
ECHR. ) The court accepted the government’s evidence that there was no alternative location for the
missiles and that disruption and risk to the claimants would be minimal.
19 Ibid para 2.
20 [2014] UKSC 56 para 35. See also discussion below of this case in relation to the nature and process
required in a given consultation.
21 As Lord Reed continued, “the general approach of the common law is illustrated by the cases of R v
Devon County Council, Ex p Baker [1995] 1 All ER 73 and R v North and East Devon Health Authority, Ex p
Coughlan [2001] QB 213”, Para 36.
22 Para 23.
was less about fairness and more ‘to ensure public participation in the local authority’s
decision-making process’23
This is an interesting and important distinction. If the courts are really suggesting that
there is a common law right of democratic participation, and that it is the job of the judges
to guarantee it, this is potentially an important development. It is one which may give
further impetus to the existing consultation imperatives in government (as well as perhaps
taking the courts into new constitutional territory). However overall it is not clear if this is
something the courts are prepared to underwrite.24 We know the courts are prepared to
require that a consultation take place when statute prescribes one, or where trigger
mechanisms such as a right, an interest or a legitimate expectation engage an idea of
fairness. Also, as shall be discussed below, it is clear that the courts are willing to
supervise the nature and style of participation and set minimum standards for conducting
an existing consultation. However it is perhaps a step too far for the courts to take these
ideas and expand them beyond the case where someone was directly and personally
effected over an issue such as loss of liberty or livelihood, into an all-encompassing
requirement for decision makers to engage in general consultation on any decision they
may wish to make.25
Consultation online – Citizen-led or Government directed
Away from the formality of government consultation requirements there remains an
undoubted growth in citizen engagement, especially on line. This takes various forms but
interest here is in participation and technology, and the definition adopted is that offered
by Sæbø et al who refer to ‘the extension and transformation of participation in societal
democratic and consultative processes mediated by information and communication
technologies (ICT), primarily the Internet’.26 This ICT consultation can be citizen led or
government driven.
Where engagement is citizen-led it may be about general consciousness raising and the
development of social movements.27 Much of this enthusiasm from the citizen side may be
23 Para 38. See also below.
24 This point was considered in some detail in another Supreme Court decision, R (Osborn) v Parole Board
([2013] UKSC 61, (known also as R (Booth) v Same, In re Reilly).This concerned a slightly different, but
related, point about the purpose of procedural fairness and the basis on which it may require that a person is
given an oral hearing in a decision about a matter concerning them. Here Lord Reed reviewed the case law
which takes several directions. For some judges fairness in this context is about improving the decision-
making and the utility of any oral procedure in doing so. For others (most notably Lord Hoffman in SS Home
Department v AF (No.3) [2010] 2 AC 269, para 72) it is not only about improving the chances of reaching a
right decision but also about avoiding the sense of injustice that a person who is denied a voice in a matter
that concerns them closely may otherwise feel. Lord Reed endorsed this approach adding (with an unusual
reference to academic dignitarian literature) the idea of the law paying respect to those who are the subject
of its decisions. He also went on to relate this closely to the rule of law, and here perhaps the nature of this
approach as having an individual rather than a general application can be seen.
25 Indeed this would seem to engage debates about the proper constitutional role of parliament and the
other legislative bodies, (as well as those to whom they give decision making powers in an administrative
role). Are legislators, in Edmund Burke’s famous terms, always subordinate to those who elected them or
deputed only to represent them, and so subordinate to any more accurate expression of what they may
want ?(see further “Speech at the Conclusion of the Poll”, in Works (1854) Vol. 1, p. 180).
26 Ø. Sæbø, J. Rose, L. Skiftenes Flak (2008). The shape of eParticipation: characterizing an emerging
research area. Government Information Quarterly, 25(3) (2008) pp. 400–428 at pp. 401-2.
27 See further K Garrett, “Protest in an information society: A review of literature on social movements and
the new ICTs”, 9 Information, Communication and Society (2006) pp. 202-24. Research by SimilarWeb
suggests the importance of traffic on Facebook in helping the leave campaign win the Brexit vote. See
a result of a belief in the efficacy of the online culture bringing the power of
crowdsourcing, the participatory dynamic of open source working, and a sense that free,
democratic speech can now be expressed through a mouse click.28 The abundance of
information that is made available, and the volume of communication occurring, can be
suggestive of both openness in government and the democratic potential of citizens
online.29 There is a range of citizen inspired initiatives which can be quite focused. Often
they offer the facility to start a petition.30 These are interesting and potentially significant. At
one level it seems to suggest that not only do networked communications afford everyone
the opportunity to contribute, participate and be heard but that people can be connected
with one another and send strong and specific messages to governments. However at
another level the TripAdvisor-style ratings that these outlets inspire remain a very mean /
thin version of democratic power. Is civic duty really met by simply providing an email
contact on a petition or clicking “like” on a website? What happens next? How do or
should governments respond?
Governments generally are also often happy to be associated with online participation and
the language of crowd-sourcing, openness and enhanced communication. This perhaps
indicates their credentials as appropriate to a modern, web-based society. 31 In various
fields, particularly planning and the environment,32 there is particular interest in obtaining
https://www.similarweb.com/blog/brexit-traffic (visited 29th June 2016).
28 See further Y. Benkler (2006) The Wealth of Networks: How Social Production Transforms Markets and
Freedom. New Haven, CT: Yale University Press. (2006); C. Sunstein, Infotopia: How Many Minds Produce
Knowledge. Oxford: Oxford University Press.(2006) and C. Shirkey, Here comes everyone: the Power of
Organizing without Organizations Harmondsworht: Penguin 2009; M Lodge and K Wegrich, The
Californication of Government? Crowdsourcing and the Red Tape Challenge, London: London School of
Economics Discussion Paper No. 72 (2012).
29 There are of course a range of critical views of this simplistic idea of a Twitter or Facebook revolution and
many of these will be reviewed later. For now however it should be noted that criticisms focus in two
directions. Firstly in relation to the idea that open government data is inevitably a driver for new
accountability, transparency and new forms of citizen participation and action (see further the overview
provided by T. Davies and Z. Bawa, (2012) ‘The Promises and Perils of Open Government Data (OGD)’,
Journal of Community Informatics, Vol 8, No. 2 (2012) http://ci-journal.net/index.php/ciej/article/vitw/929/955).
Secondly there is the view that many celebrated events around the Arab Spring and other important social
movements are not really the result of online activism at all (see further E. Morozov The Net Delusion: How
Not to Liberate the World London: Penguin 2012).
30 See for example Change.org, 38 degrees, GetUp.org, Avaaz.org, or ipetition.com and Petitionbuzz.com
which promise a facility to set up a petition in less than a minute. Sites such as
http://twibbon.com/freecampaigns and https://twitter.com/twitition provide a link into Facebook and Twitter
and seem to approach petitioning as an add-on to social marketing or social networking. At a more
organised, political level there is http://www.campaigncentral.org.uk which is a resource site containing
“know-how” on how to use the internet to mobilise opinion. Petition (https://www.gopetition.com ) describes
itself as having no political affiliations but maintains a register of petitions in countries across the world and
on topics from animal rights to youth issues as well as a repository of online petitioning tools.
31 See J. Morison, “Gov 2.0: Towards a User Generated State?”, 73 Modern Law Review (2010) 551-77; V.
Mosco, The Digital Sublime: Myth, Power, and Cyberspace Cambridge MA: MIT Press 2005); and the
overview of the state of play provided by The United Nations, United Nations e-Government Survey: E-
Government for the People, (UN: New York 2012). It should also be said the government e-democracy
initiatives are concerned not only with consultation and deliberation but also encompass developments in e-
voting, and opening up government by making public data available online, although these are beyond the
scope of this article.
32 See further, for example, M. Sudlich, “Can the internet reinvent democracy?” Irish Political Studies, Vol.
26, No. 4, (2011) 563–577 and, in the planning context, E. Stern, O. Gudes and T. Svoray “Web-based and
traditional public participation in comprehensive planning: a comparative study” 36 Environmental Planning
B: Planning and Design (2009) 1067-85; E Gordon and E. Manosevitch, “Augmented deliberation: merging
physical and virtual interaction to engage communities in urban planning”, 13 New Media and Society
(2011) 75-95: and the useful overview in D. Schulz and J Newig, “Assessing Online Consultation in
Participatory Governance: Conceptual framework and a case study of a national sustainability-related
the benefits of citizen engagement, stakeholder knowledge, and enhanced legitimacy
along with the sort of extended reach and interaction that consultation mediated by
information and communication technology (ICT) can provide.33 A range of ICT tools has
been used at the experimental end.34 However, as shall be developed later, this has
provoked the criticism that the practice of online consultation often has been largely
divorced from deliberative democracy theory,35 and that the various mechanisms
developed have not been sensitive to the different and particular political contexts in
which they may operate.36
The UK Government certainly is willing to associate itself with the directness and
immediacy of new technology in this area.37 This has been the case for some time and with
different governments.38 In practice, however, the story of engagement has shown an
approach that is rather cautious and often carried out in a rather top down way.39 This may
be more of a consequence of the style and approach to political engagement that
characterizes the British system rather than anything related to the perceived need to
improve democratic engagement. Indeed as Davidson and Elstub report,40 the political
system in the UK is simultaneously weak in terms of democratic criteria relating to
representation, accountability, participation and openness, and considered to be
particularly in need of new participatory initiatives to overcome political apathy, repair trust
consultation platform in Germany”, 25 Environmental Policy and Governance (2015) 55-69.
33 See further, S. Coleman and P. Shane (eds.) Connecting Democracy Cambridge: MIT Press 2011; B.
Noveck, Wiki-government: how technology can make government better, democracy stronger, and citizens
more powerful. Washington, DC: Brookings Institution Press (2009); S. Wright, “Politics as usual?
Revolution, normalization and a new agenda for online deliberation”, New Media and Society (2012) 14(2)
244-261.
34 See M. Kamal, “An Analysis of e-participation research: moving from theoretical to pragmatic viewpoint”,
3 Transforming Government: People, Process and Policy (2009) 340-354; and I. Susha and A. Grönlund,
“eParticipation Research: systematizing the field” 29 Government Information Quarterly (2012).
35 See further D. Schultz and J. Newig, “op cit n. 32 at p. 57.
36 See M. Saward, “Enacting Democracy”, Political Studies, 51, (2003) 161–179 and, more generally, C.
Snow Bailard, Democracy’s Double-Edged Sword: How Internet Use Changes Citizens’ Views of Their
Government, (Baltimore, MD: Johns Hopkins Press, 2014).
37 One of the more egregious examples of the UK government wishing to be seen as in touch and
responsive can be found with David Cameron’s ‘No 10 dashboard app’, which was designed to provide real
time feeds of financial and polling information to the UK Prime Minister. See further
https://www.gov.uk/government/publications/case-study-on-action-4-digital-capability-across-
departments/action-4-case-study-digital-capability-across-departments--2#the-number-10-dashboard
(Accessed 25th February 2016).
38 The New Labour Government elected in 1987 was enthusiastic about the potential to remake democratic
politics online and this has continued with varying degrees of emphasis during the New Labour era and
beyond. For example, a paper published by the Office of the e-Envoy, In the Service of Democracy: A
Consultation on A Policy for E-Democracy (London: HM Stationery Office 2002 ) enthusiastically endorsed e-
democracy as “using new technology to energize the democratic and political life of the nation” (p. 5). See
also P. Dunleavy and H. Margetts, Digital Era Governance: IT Corporations, the State, and E-Government
(Oxford: Oxford University Press, 2006); H. Margetts, ‘e-Government in Britain—A decade on’,
Parliamentary Affairs, 59:2, (2006) 250–265; and G. Moss, and B. O’Loughlin, B. ‘New Labour’s information
age policy programme: An ideology analysis’, Journal of Political Ideologies, 10:2, (2005) 165–183.
39 See G. Moss and S. Coleman, “Deliberative Manoeuvres in the Digital Darkness: e-Democracy Policy in
the UK”, British Journal of Politics and International Relations, Vol 16 (2014) pp. 410-427.
40 S. Davidson and S. Elsbrub, op cit n. 3.
and better connect people to government.41 However to date the main government
initiatives have been rather simple, and on a mainly experimental level. There have been
citizen juries,42 deliberative polls,43 and assorted instances of participatory budgeting44 -
with various degrees of online involvement. In addition there have been special initiatives
such as the Scottish National Conversation carried out over three years of the Scottish
National Party’s first term in office about the possibility of devolution,45 and of course, the
somewhat singular experience of Scottish Independence referendum.46
The main thrust of e-participation strategies, however, has remained the e-petition.47 In
competition with the various citizen inspired initiatives, governments at various levels have
sought to catch (and perhaps domesticate) the movement towards petitioning online.
There are now Citizen Petition websites across all levels of government in the United
Kingdom. At the European level there is the European Citizens' Initiative. Here a proposal
from seven EU citizens based in seven member states, backed with at least one million
signatories from across the EU member states, will receive “careful examination” by the
Commission – although it “is not obliged to propose legislation as a result of an initiative”.48
The current UK Government and Parliament site lists 27,200 petitions submitted by five
or more UK citizens and details the 2,607 that are open for signature.49 If any of these
reaches 10,000 signatures a “response from the government” is offered, and if 100,000
signatures are achieved a petition “will be considered for debate in Parliament”. This
seems redolent of mediaeval rituals where the common people petitioned their masters -
and perhaps about as effective. Indeed it may close down dissent and divert activism as
people remain disconnected from others with the same views in contrast to real political
movements which bring people together to create energy for change.
41 On the size and nature of the democratic gap to be addressed see further The Power Inquiry, Power to
the People: an independent inquiry into Britain's democracy (2006) (available at
http://www.jrrt.org.uk/publications/power-people-independent-inquiry-britains-democracy-full-report );
G.Stoker, Why Politics Matters: Making Democracy Work Basingstoke: Palgrave Macmillan 2006; Hansard
Society, Audit of Political Engagement 11 2014 (available at
http://www.hansardsociety.org.uk/research/public-attitudes/audit-of-political-engagement/ ).
42 See further C. Delap, ‘Citizens’ juries: Reflections on the UK experience’, Participatory Learning and
Action, 40, (2001) 39–42; C. Lafont, “Deliberation, Participation, and Democratic Legitimacy: Should
Deliberative Mini-Publics Shape Public Policy?” Journal of Political Philosophy 23 (1) (2015) 40-63.
43 R. Luskin, J. Fishkin, J. S. and R. Jowell, ‘Considered opinions: Deliberative polling in Britain’, British
Journal of Political Science, 32, (2002) 455–487.
44 See further Department for Communities and Local Government, Communities in the driving seat: a study
of Participatory Budgeting in England Final report 2011 (available at
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/6152/19932231.pdf ); A.
Röcke Framing Citizen Participation: Participatory Budgeting in France, Germany and the United Kingdom,
Houndmills: Palgrave MacMIllan 2014, chapter 6.
45 See Scottish Government (2009) Your Scotland, Your Voice: A National Conversation (Edinburgh:
Scottish Government 2009) which describes an inclusive process drawing upon access to Ministerial blogs,
and audio and video recording of events but cf. M. Harvey and P. Lynch, (2012) “Inside the national
conversation: The SNP government and the politics of independence 2007–2010”, Scottish Affairs, 80 (2012)
91–116 who offer a more cynical view of the process.
46 See further S. Tierney, “Direct democracy in the United Kingdom: reflections from the Scottish
independence referendum” Public Law (2015) 633-651; “Reclaiming Politics: Popular Democracy in
Britain after the Scottish Referendum” Political Quarterly 86 (2015) 226-233; and N. McGarvey, “The
2014 Scottish Independence Referendum and Its Aftermath” Social Alternatives 34.
47
48
49
Nevertheless the turn towards participation through petitioning continues. The devolved
administrations in Edinburgh and Cardiff also have petition sites, although Northern Ireland
currently does not.50 Indeed the Scottish Government led the way here, although one
study found that even here, in its most advanced form, the simple presence of a new
opportunity for political involvement does not guarantee enhanced participation.51 Many
local authorities in Great Britain too have petition sites and, as was seen above with
consultation duties more generally, there is also a trend towards requiring petitions in
particular areas of activity in an attempt to develop a sense of connectedness and
interactivity between the governors and the governed. A central example of this was to be
found in Chapter Two of the Local Democracy, Economic Development and Construction
Act 2009, which required local authorities in England to make available a Citizens’ Petition
and e-Petition mechanism, and to act upon it. Much of the detail of this procedure has
been replaced by the Localism Act 2011. However this in itself is interesting and
significant as this “new localism” as it is termed provides an important example of very
significant mechanism of government – and one which has consultation as firmly central to
its operation.
New Localism: A governmental strategy enlisting the governed through participation
Despite the (arguable) demise of formal local government, ideas of localism have been
around for some time as “a focus for policy making and a primary building block for
democracy”.52 Under the Coalition Government, and the majority Conservative
Government of more recent years, there has however emerged what one critic has
described as “a new grammar of localism” – albeit one which “masks a contextual history
of centralism”.53 In England much of this localism agenda is centred around the
development of plans, made in association with “the community”.54 (There is a different
and contrasting narrative over localism in Scotland.55)
Along with wider, more eye-catching reforms such as a general power of competence for
local authorities, the election of mayors, and the extension of the Free Schools scheme,
this new localism in England contains an agenda of “community empowerment”. Much of
this is expressed in terms of “community rights”.56 Among those introduced are a
Community Right to Challenge, enabling communities to challenge and take over public
services; a Community Right to Bid, enabling communities to bid for local assets and
challenge and take over public services; a Neighbourhood Planning Right, allowing
communities to control planning for their own area; and a Community Right to Build,
permitting communities to instigate local house building. Whether these are correctly
termed “rights” in the sense of being a general, justiciable entitlement attached to
identifiable individuals or groups is perhaps debatable. However what is clear is that
within this “new localism” generally there is a strong consultative element.
For example, within the planning and development process local plans are an increasingly
important part of the process. While there is considerable flexibility for local planning
authorities in how they carry out the initial stages of plan production, they must comply
with certain specific consultation requirements in law. These can be found in regulation
18 of the Town and Country Planning (Local Planning) (England) Regulations 2012 but
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their effect can be best appreciated by visiting the extensive website of the National
Planning Policy Framework for England with its online planning practice guidance.57 Here
there is detail on gathering evidence, preparation of the Local Plan and effective
discussion and consultation with local communities, businesses and other interested
parties. This consultation exercise must correctly identify emerging options as “issues and
options”, “preferred options” or “pre publication”, and make clear how any consultation fits
within the wider Local Plan process and with the commitments in the “Statement of
Community Involvement”.58
While the details of this process may seem somewhat esoteric, this wider localism,
enlisting the community through consultation, is clearly a new form of governance.59 It is
one that is perhaps understood best in terms of governmentality. This is an approach to
understanding power and its operation by focusing less on the state, sovereignty and law
and more upon how the micro power relations that can be found throughout society
operate to create possibilities, shape ways of thinking and inform “technologies of
government”.60 The neologism “governmentality” was developed by Michel Foucault to
capture the irreducible connection between practices of government and the styles or
modes of thought underpinning those practices.61 In contrast to elements of Foucault’s
earlier work, which emphasized the technologies of power and domination, the later
governmentality approach looks beyond the actions of the state.62 It does so to give
attention to emphasize the way in which subjects turn themselves into subjects, and to
give attention to the activities of other forces in wider society and their role in directing
conduct. A governmentality approach looks at all the strategies, techniques, and
procedures through which different forces and groups attempt to render their programmes
operable in a wider exercise of governance. It suggests that in addition to action through
law, sanctions, budgets, and administrative action, there is the important quality of the
freedom of the subject (government of the self). And the approach focuses on how this
freedom is managed. In contrast to simple domination, which involves crushing the
capacity for action of the dominated, government—properly understood here—entails
recognizing that capacity for action, and mobilizing it. Government here involves
understanding how those who are to be governed think and act, and using and shaping
this in order to guide them in the desired direction. As Foucault expresses it, ‘the exercise
of power is a “conduct of conducts” and a management of possibilities’.63
The governmentality approach thus seeks to locate and uncover what makes a given
exercise of power both possible and intelligible. It finds its answers in exploring the
multiplicity of interactions, confrontations, struggles and transformations whereby all those
who are both the subject and author of power come together to form a chain or system
that comes to be embodied, albeit in unstable ways, into ways of thinking, state systems,
laws and various social hegemonies. Arguably, in the case of local planning, central
government is instituting a regime of “government through community” whereby it is
shifting responsibilities onto communities in a development that began with the Big Society
agenda, and has been pushed forward in new ways by the economics of austerity within a
wider agenda of neoliberalism.64 Within an understanding of power that looks at all the
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practical mechanisms, the details of the technologies of government, and all those ways of
thinking and engaging with others within a wider exercise of governance, this is clearly a
new governing strategy.65
Local communities here are being constructed as units of governance. They are however
being made up in particular ways and for certain purposes. Communities in this sense
have little connection necessarily with existing, lived understandings of how place and
identity can confer meaning to those who inhabit a geographical area.66 The legal
construction of these local communities seems rather to involve an attempt, as Layard
describes it, “to create rather fixed, static, territorial units rather than reflecting an inter-
linking network of scales of decision making.”67 It is a process that creates a local unit
legally, and establishes it as site for governance, within a wider context where self-
government is preferred to central government, and the individual consumer operating
within the democracy of the marketplace is seen as the main model.68 As Lowndes and
Prachett see it, “on the one hand, communities are being asked to take responsibility for
creating new markets in areas of public service, whilst on the other hand their influence
routes are increasingly individualized and marketized.”69 This aggregative approach is one
where communities are made up, sometimes quite arbitrarily – either spatially or through
the exercise of one or another of the “Community Rights” on offer - or simply by self-
selected groups of residents and activists. As Layard explains, once this “local” is legally
constructed and validated through these mechanisms, it takes on a new administrative and
political identity (even though it may be disguising various subgroups or features which are
not reflected in this construct). It becomes something that can make decisions itself within
a process where what is now seen as neutral, “local knowledge” can be given priority. 70
The effect of this can be, as Layard points out - in the context of the vulnerability of
residents in multiple occupancy housing to vested local interests, although the point has
wider application too - exclusionary, non-egalitarian, regressive and even contrary to
human rights standards.71 It is also perhaps “anti-democratic” in so far as the consultation
process has privileged one set of voices through the construction of a engagement
mechanism that hears only some of the voices that might be relevant, while marginalizing
or excluding others. Indeed, it is perhaps also “anti-political” too insofar as such
individualized, aggregative approaches preclude the educative element of a more
deliberative approach of the classical style 72 let alone real pluralist debate or
disagreement.
This is one important example of the wider context in which government consultation takes
place. It perhaps illustrates that there is very much more than a simple interaction or
solicitation of views when governments consult. It makes a link to the type, nature and
role of citizenship that is presupposed by, and in, the wider consultation mechanism. It
should not be thought the process of consultation is ever without a wider determining
agenda or that consultation is a straightforward process limited only by its technical
effectiveness in gathering opinions.
The “democratic adequacy” of Government Consultations
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Consultation may take one of the many forms noted earlier but whatever means is used it
is clear that there is more going on than a straightforward exercise in gathering opinion.
The consultation method presupposes a type of citizenship. An online consultation where
there is a document for comment, for example, does not go out into a void where
interested, engaged and public spirited citizens (somehow reflective of the composition of
wider society) perform their civic duty and respond in the evenings after work.73 Instead,
as was seen with the localism example, the type and nature of the consultation
presupposes a particular sort of participant and helps to create, validate and instantiate
that participant within a wider governance regime. But beyond this there is also a
relationship between consultation and some wider ideas of democracy and this must be
explored.
At a general level, where the nature and quality of democracy is reviewed, there is a very
considerable literature.74 Fiskin suggests however that there are four basic forms of
democracy: Competitive Democracy, (2) Elite Deliberation, (3) Participatory Democracy,
and (4) Deliberative Democracy.75 Fiskin is of course part of the general revival of
deliberative democracy as urged by a variety of theorists who follow an agenda set by
Habermas.76 He advocates an idea of democracy as collective will formation in
preference to those versions of democracy which are either, in Schumpter’s famous
phrase,77 “a competitive struggle for the people’s vote”, or an elite deliberation by a chosen
body, or a version of democracy that emphasizes mass participation and equal counting.
This emphasis on the type and purpose of any democratic engagement is important and
should condition any approach to consultation.
An alternative way of looking at the same issue involves considering the type of
deliberative public space created and its democratic nature. Fung sees there being a wide
variety of mini publics involved in any consultation and these stand in for the wider public
in some sort of representative role.78 These mini publics maybe be constructed for
different purposes; they may have an educative, advisory or problem-solving function, or
even a more ambitious participatory governance role. The nature and role of the public
space created ushers in a whole series of choices about how to recruit participants, the
subject, style and length of the deliberation, and much else besides. Each of the choices
made has an impact on the nature and quality of any exercise in democracy. Another
important distinction lies with the difference between deliberative as distinct from
participatory democracy. Deliberative democracy can be seen as a form of participatory
democracy but it is distinct from it in so far as with the former the emphasis remains on
public reasoning as a central element of public decision-making while participatory
democracy is concerned more with the engagement of citizens, and the variety, breadth
and depth of democratic involvement.79
While there may be elements relating to deliberation and problem-solving, and even inter-
connected systems of public reasoning, consultation is mainly about hearing and being
heard.80 In terms of Arnstein’s famous ”ladder of participation”, consultation is on rung 4 or
5 (of 8) where participation is allowed but limited, and there is no assurance that change
will follow because the right to decide is maintained by those who hold power.81
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Nevertheless the modern turn towards consultation combines with the internet age, to
seem to open up possibilities of speed, reach, economy and interaction that were
unimaginable when Arnstein was writing. However, the online quality of any consultation
does not automatically make an interaction more (or indeed less) democratic. Clearly there
are many things going on when governments and citizens are interacting online, and there
is no ideal version of interaction towards which all mechanisms should aspire.82 However,
at a general level, Coleman sees the type of technology used as reflecting the conception
of citizenship and the nature of civic practices within any given polity.83 Schulz and Newig
review several attempts to classify online interactions in terms of their democratic
qualities.84 Others attempt to analyse the communication flows involved for their level of
engagement.85 However perhaps the most revealing insight comes from looking at so-
called best practice.
Best practice in consultation
At a practical level there are a series of guides available.86 An examination of these can be
quite revealing. There seems to be a basic divide between those designed to ensure that
the consulters are protected from challenge, and others, more expansively designed to
attempt a fuller engagement. However even within the later category often there is very
little about the relationship to wider theories of democracy, understandings of participatory
decision-making or even the purpose of any consultation, either in general or in particular
instances.
Perhaps surprisingly it is at the international level that context and detail is spelled out
best. The Organization for Economic Cooperation and Development (OECD) has
produced a Background Document on Public Consultation.87 This makes an important
basic distinction between: “Notification” which is one way, passive for the consultees, and
should be prior to consultation; “Consultation” which is two way, either in one stage or by
continuing dialogue, or more simply information gathering; and “Participation” which should
involve active engagement in policy formation where a sense of ownership of policy is
developed. The European Commission too has a 28 page document from 2002 titled
Towards a reinforced culture of consultation and dialogue - General principles and
minimum standards for consultation of interested parties by the Commission and this has
been reinforced by a Better Regulation initiative.88 This details how to set objectives, map
the range of stakeholders to engage with, and select from the range of online and
traditional methods and tools available. In contrast the UK Cabinet Office has produced
its Consultation Principles 2016 which presents remarkably modest proposals.89 The 11
principles offered there range from advice to use plain English, a suggestion that
consultees should be given enough information to make an informed response, to a
recommendation that agreement be sought before publication. The National Principles for
Public Engagement produced in Wales in 2011 are similarly brief but they do seem rather
less defensive and more oriented towards encouraging people to take part and public
bodies to listen.90 It is however in the voluntary sector that perhaps the most innovation is
occurring. The non-party think-tank Involve has a Participation Compass website which
details more than thirty case studies and offers links to a wide variety of participatory
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resources.91 It also provides a guide to 57 different methods of consulting with a brief
account of their origins, uses, strengths and weakness, and costs. These range from
Feedback Kiosks, 21st Century Town Meetings, Citizen Juries and Citizen Summits,
through to Mystery Shopper exercises, Forum Theatre, Conversation Cafes and various
survey methods, right up to a range of online tools from ePanels and traditional Online
Consultations to Participatory GIS systems with digital maps, satellite imagery and models
to assist engagement.92 There is also the Digital Engagement Guide which provides a
somewhat eclectic collection of ideas and practical help for those in the public sector who
may wish to consult with links to both strategies for engagement and practical examples.93
All of this suggests a wide range of choice when planning a consultation. It also implies
that consulters and consultees should have fairly well worked-out ideas about what they
hope to achieve in any consultation, how this fits within any wider structures of decision-
making, and what the relationship is to wider concepts of democracy. Unfortunately this all
too rarely the case. The consultations to be found on the UK Governments website (n 5
above) are not thought-through in these terms – and the qualities of reach and
accessibility gained from internet technology merely exacerbate the idea that a simple
response (of any kind) is all that is needed to claim democratic endorsement. Given this
situation it is perhaps not surprising that the courts have been drawn into assessing the
adequacy of consultation processes.
Judicial oversight of consultation processes
The courts in the UK have devoted considerable energy to determining what makes an
adequate (if not necessarily a good) consultation. Essentially the position is that unless
there are statutorily prescribed procedures, and subject to the overall requirements of
fairness, the decision-maker will usually have a broad discretion as to how a consultation
exercise should be carried out. However this does not mean that there is unbounded
discretion for the consulter or that there are not certain fundamental ground rules to
followed. The most commonly known formulation of these rules are known as the
Gunning Principles or Sedley Principles from the arguments offered by Stephen Sedley
QC, accepted by the court in R v. Brent London Borough Council, ex parte Gunning,94 and
subsequently approved by the Court of Appeal.95 The Gunning Principles require that: (i)
consultation must take place when the proposal is still at a formative stage; (ii) sufficient
reasons must be put forward for the proposal to allow for intelligent consideration and
response; (iii) adequate time must be given for consideration and response; and (iv) the
product of consultation must be conscientiously taken into account.96
This blueprint for adequate consultation has been revisited several times and indeed is the
subject of much professional briefing.97 The general approach was summarized by the
Court of Appeal in a commercial judicial review case, R (United Company Rusal PLC) v
London Metal Exchange.98 The Court held that where a public body is under a duty to
consult, the content of that duty to consult is governed by a common law duty to act fairly,
and the Court should only intervene if there is a clear reason on the facts of the case for
holding that the consultation is unfair. This was said to be an intensely case-sensitive
decision. As Lady Justice Arden insisted, it not an area of law where it is possible to
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provide statements of general principle (para 28). Indeed the court here endorsed the view
that there is no general principle that a public body must consult on all possible alternative
ways in which a specific objective might arguably be capable of being achieved. To require
this would make the process of consultation inordinately complex and time consuming.
Accordingly there is no common law obligation on a public body to consult on options it
has discarded and a consultation process would be unfair for failing to set out alternative
options only in exceptional cases.
However the context of government cuts within the austerity agenda has provided several
opportunities for the courts to revisit the details of what makes an adequate consultation.
The most significant decision is again that of the Supreme Court in R (Moseley) v LB
Haringey - already considered briefly above in relation to the “right to be consulted”.99
Here there was a challenge to Haringey Council’s consultation over the adoption of a
Council Tax support scheme which required the poorest residents to pay 20% of their
Council tax where previously their liability would have been met by the national Council
Tax Benefit scheme. The Court found that the consultation failed to recognize that the
council had a choice to make in how they would meet the shortfall in funding. As Lord
Wilson pointed out, the materials circulated to consultees strongly suggested that the
council was required to pass on the cut to the poorest residents, and did not indicate that
there were a range of alternatives (which other councils had in fact adopted). These
alternatives had been considered by the Council and been rejected but neither their
existence nor the reasons for their rejection were made known to the consultees. While
Lord Wilson again acknowledged that “fairness is a protean concept, not susceptible of
much generalised enlargement’” (para 24) it was felt that the context here did in fact
require that the consultees were informed of other options that had been considered and
rejected. Without such information they would be unable properly to consider the proposal.
Lord Wilson went further. He expressed the view that the view that fairness may require
variable information to be given, depending on the identity of the consultees, with
members of the public or those with a disability needing more specific and detailed
information than technical experts. Also, Lord Wilson expressed the view that where an
authority contemplates depriving someone of an existing benefit, rather than where an
applicant is merely applying for some future benefit, a more stringent requirement of
fairness may apply to the consultation. In the circumstances of the Haringey case the
consultees were economically disadvantaged and the proposal envisaged reducing yet
further their income causing real hardship while sparing the more prosperous residents
from making any contribution to the shortfall in government funding. This approach, which
was generally supported by Lord Kerr, differed somewhat from that taken by Lord Reid
(supported by Baroness Hale and Lord Clarke). Lord Reid agreed with the conclusion of
Lord Wilson but sought to emphasize the statutory context of the particular consultation
rather than any more general common law duty to act fairly.
It would seem that the courts are not only rather reluctant to specify detailed requirements
for any adequate consultation but they are divided on the purpose and nature of
consultation.100 One view – that of Lord Wilson - would have all the details of the decision,
including the rejected options, exposed for consideration (and this of course is appealing
to those, especially in an anti-austerity context, who wish to challenge the very substance
of the decision rather than simply its method). On the other hand the view expressed by
Lord Reid (supported 3:2) although providing the same result, is different. It is based not
so much on a general idea of fairness effecting the interests of individuals (such as might
arise where there is a legitimate expectation usually arising from an interest which is held
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to be sufficient to found such an expectation, or from some promise or practice of
consultation) but rather on the detailed nature of the consultation process expressed in
statute, where a local authority is discharging an important function in relation to local
government finance affecting its residents generally. This may seem a subtle distinction
but it is one which the courts are developing in a series of decisions, some of which are
heading towards the Supreme Court.101 As with the courts’ approach to the existence of a
right to consultation discussed above, it signals that generally the judges are less
concerned with opening up a public space for political participation than with protecting
individuals where a right, an interest or a legitimate expectation engages a more
conventional idea of fairness.
While the courts may police what constitutes a fair consultation in terms of how it effects
individual rights relating to individual fairness it seems that they are not placed to develop
or enforce more general standards of adequacy in a wider, political process of
consultation. This means that we are alone in the world of best practice – and more
worryingly - less than best practice.
Conclusion: Participatory Disempowerment and the Foreclosure of Politics
There is a whole set of issues and problems associated with consultation and any attempt
to realize a vision of democracy thereby. If the courts cannot be expected to underwrite
any general theory of democratic engagement we are left in a dangerous world where
appeals to democracy through consultation are available to be equally used and misused
in support of a range of wider projects and processes of governance.
While this account has focused on the UK there is of course a wider theatre for
consultation, and there may be lessons to be learned from it. The World Bank has
produced a report detailing the range of approaches to participation internationally.102
Context and wider democratic culture remain of course hugely important.103 Nevertheless,
a recent study looking at non-electoral participation in 39 developed countries found that
everywhere effective engagement seems to be associated less with processes within
institutional settings aimed at creating consensus, and more with “inclusive contestation”
carried out away from state structures.104 Technology, with its qualities of scale,
immediacy, and reach is encouraging further efforts at engagement in many places, but
particularly in Brazil and the Nordic countries.105 However, technology does not guarantee
democracy even there. An account of the declining popularity of e-participatory budgeting
in a Brazilian context suggests the need to maintain the quality of democracy in terms of
the maintenance of community awareness, appropriate opportunities for involvement, and
a meaningful relationship between an input to politics and policy outputs.106 The experience
of what remains perhaps the most ambitious instance of using technology in consultation,
Iceland’s crowd sourced constitution-making experiment, is also somewhat mixed.107
However, it has been suggested that a broadening of the debate there to include
participants from outside of the normal political structures may have introduced an
impromptu element and a lack of constraint, putting the onus on the political establishment
to defend the status quo.108
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Overall, consultation on policy development can reinvigorate democratic engagement but
often it can silence views through a sort of participatory disempowerment whereby the
existence of an official consultation exercise closes off further, alternative or subaltern
voices who are silenced by the existence of an official depiction of “the public”.
Consultation around service delivery can improve services or it can be used to detach
public services from an integrated public sector and loosen the democratic anchorage of
the public service within the state through the adoption of consumerist perspectives.
Deploying a governmentality perspective109 it can be seen that what we have here is often
not a properly democratic exchange. Voice is not being privileged despite appearances.
Often there is instead an idea of consultation as part of a wider technology of government,
involving a set of programmes, strategies and assemblages designed to mobilize local
communities and other targets of consultation to become agents of policy as well as simply
objects of policy. Ideas of democratic engagement are constructed, managed and
controlled. Consultees “make themselves up” in reply to the strategies of consultation: the
fact of their engagement renders them “representative”, while their response to the
structured engagement simultaneously reinforces and advances the wider governing
project. As was seen earlier in the context of consultation around the localism agenda,
such techniques of governmentality relating to participation can be used to re-configure
public services into a market - consumer model and undermine the idea of public services
within the state being an expression of the public. In the wider context of legitimating
governance, consultation can be conscripted into a process of remaking the public sphere
in ways that have a justificatory veneer of democratic engagement.
For some this is simply because the whole idea of deliberative democracy is irretrievably
culturally biased.110 For others it is the details of the process that are distorting. Official
constructions of “the public”, and of “community” and citizenship” not only help shape the
conceptions that officials draw on as they establish new forums for participation but also
condition the conceptions members of such forums themselves bring to the process of
dialogue. This conditioning can operate to deplete the civic imagination rather than
facilitate it. Very often too government directly controls the form of the debate, its agenda,
and the sources of information. The literature on, for example citizen juries and
deliberative polls, reports on criticisms around the exclusion of partisan citizens with
vested interests or technical expertise; how organizers set the agenda and questions for
discussion; keep the records and select which recommendations from the jury to ignore
and which to accept.111 Putting the interaction online or in an ICT enabled format of
engagement does not necessarily improve the interaction.112 Indeed there is a view that it
makes it worse. There is no internet agora or ideal speech situation - online or offline.
The internet is no more value free, unstructured or universal than any other space.
Consultation remains a highly political activity, perhaps best seen through the lens of
governmentality, as a continuing struggle for voice to be heard effectively.
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