Due process is not a term we use much in the UK. We certainly observe it but we do not use the expression as frequently as our friends in the United States, where it is found in two key Amendments to the US Constitution. There it is mainly about judicial processes and the need to observe basic rules before depriving people of their life, liberty or property, but the phrase has a wider meaning – safeguards against arbitrary actions by those in authority. Were any readers of this Topic to have the misfortune to be dismissed from their employment, they would rightly expect that nothing could happen unless some specific procedural safeguards were observed. That’s due process!

The trouble is that one person’s safeguards is another person’s bureaucracy. Many of the most important safeguards are expensive and time-consuming. Much of what we all wanted as society – including rigorous health and safety enforcement, good data protection, avoiding unsuitable adults having the care of children and a thousand other examples, involve us in processes we now find irksome. At other times, we suspect that civil servants and officials make regulations unnecessarily complex; how often have we heard that they have ‘gold-plated’ EU Directives! Implementing BREXIT will presumably show us if that was ever true.

Public consultation is a form of due process. Either Parliament has decreed, or common law or best practice requires that before a particular decision is taken, a public consultation shall take place. The way in which it is done is full of safeguards to ensure that the process is trustworthy and consultee interests are … safeguarded.

Unfortunately, modern society finds all this quite difficult. In days when many people are cash-rich, time-poor, there seems little justification for the timelines involved. The Chilcott Inquiry took years, but faced a barrage of criticism for being too thorough. On both sides of the argument people clamoured for a resolution, and objected to the £10m plus it cost in fee to lawyers and others. Ditto the Hillsborough Inquest. And the Leveson Inquiry. So what about Airport expansion in the South-East? Or High-Speed Two?; Or Hinkley Point? Or BREXIT?

Our culture of instant gratification means that we have become obsessed with results and action. The process of getting there by weighing up the evidence is less interesting to us. For goodness sake, just take a decision, and get on with it, is an increasingly familiar cry. Academics studying the anti-politics phenomenon think it is because people feel alienated from the whole process of Government which they find boring and self-serving. Scandals, and the way they are presented in the media, have lowered many institutions in public esteem, and therefore the whole machinery of democracy is branded as ‘the establishment’.

The EU Referendum is only the latest in a series of events that show much of the public as seeing ‘direct democracy’ as a better way for society to take its decisions, and a way to circumvent the tedious never-ending deliberations that our political due process involves.

There is every reason to fear that the same people will view public consultation in a similar way. There will be pressure to “cut out the talking, (or a more graphic term) and just move to a decision.” Why bother with a 12-week exercise and an inch-thick document when you can ask people’s views on an online Quick-poll and announce the result within minutes? The same with the legal system, the planning system, the licensing system, school inspections, care quality inspections, serious case reviews, policy audits … even trade talks. Why on earth should they take years to negotiate? Just get on with it and we can do a deal with China in six months!! Okay, that is a little tendentious, but we must accept that it is attractive to think of a world where most of the boring homework is accelerated and we get almost instant results. But it is massively over-optimistic and in places, naive. More dangerously, cutting corners on due process means that someone’s interest will be at risk. Remember the original purpose – safeguards for life, liberty or property. In consultation terms – we safeguard the right to be heard.

Those of us organising public engagement cannot disregard massive societal trends towards instant actions, so wherever possible we need to tailor our practices to modern day living. People won’t devote their scarce time to attend meetings. They will not allow a leisurely approach to gathering evidence. They expect organisations asking for their opinions to find people in their own ‘home’ environments, whether at home via their TV set, on their laptop, on their mobile phones or tablets and soon, on their wristwatches. The trick will be to harness all the speedy new methods of engagement whilst still observing the safeguards that due process is intended to protect. It’s a tough challenge.

TRIGGER POINTS

• Have you sought to modernise the methods of consultation and engagement?
• Can you speed up the overall process timescale – without compromising on due process?
• Forthcoming policy development in the wake of BREXIT holds challenges for conventional forms of consultation. The Institute has just published Briefing Paper 34, Britain prepares for BREXIT – The role of Public Consultation.
• Some of the themes covered in this topic can be discussed at greater length at our learning and training events.

This is the 302nd Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.