Iterative consultation: talking more and earlier

This post in brief

• Public consultation on policy proposals is the norm, but there are ways we could do it better.
• Policy development would likely benefit from more stakeholder input early on in the process, before the government forms a preliminary view on the best policy solution.
• One suggestion is to have informal small group stakeholder meetings early on.
• Another suggestion is to use crowdsourcing to help draft policy papers iteratively.
• These suggestions are intended to supplement, not replace, traditional consultation processes.

Iterative consultation: talking more and earlier

Consulting on policy proposals is the norm. The Australia Government’s Guide to Regulation and the Legislation Act 2003 require (with some exceptions) agencies to consult publicly before legislation is made. Even without these rules, it would be a brave agency executive who would put a policy proposal to their Minister without being able to say they have consulted the public. So we almost always consult.

The consultation process

But do we consult well? The typical process for consultation is that the agency will internally develop and then release a policy document.[i] That document typically analyses the policy proposal, outlines available solutions, and then puts forward the agency’s preliminary view on the preferred option. The agency might then organise face-to-face consultation meetings, prior to stakeholders making formal written submissions. Written submissions are usually published on the agency’s website. Finally the agency will conclude by considering the submissions, and announcing which proposals it will drop or modify in response to the consultation.

Publishing a policy paper is often very much a ‘here’s something we prepared earlier’ approach: stakeholders do not usually have much input until a fully formed proposal is publically released. Sometimes a preliminary issues paper will be published without putting forward a preliminary view as to the best option. However, issues papers are not always used. Even when they are, they are still a very stilted and formal way to interact with the public.

The benefits of presenting a specific proposal

Agencies usually do not put forward a specific policy proposal to pre-empt the final decision. There may be some cases where the agency’s view on the best option is unlikely to change - ie they are consulting merely so that they can say they consulted. Any agency that does this should rightly be criticised.

However, in my experience this is rare. Usually the agency has an open mind and can be convinced to change the proposal if stakeholders provide compelling arguments or evidence.[ii] I have seen many policy proposals that changed because of material provided during public consultation.

Giving stakeholders a specific proposal to consider has its benefits. Some stakeholders are busy and have limited time to spend on consultation: they do not want to waste time brainstorming ideas or exploring numerous proposals. These stakeholders may not want to be bothered until the agency has a specific and well-developed proposal. Additionally, providing a specific proposal tends to focus stakeholders’ minds. In my experience, some people will not pay attention until you give them a concrete proposal.

The risks of presenting a specific proposal

However, there are also risks of only consulting in this manner. 

Presenting fully formed proposals can create unnecessary conflict with stakeholders. By putting forward a specific view, the agency may become too committed to that view. And stakeholders may become too committed to opposing the proposal. In these situations it can be quite difficult to steer the discussion towards modifying the option or considering other options, or to getting further evidence to assess the proposals. It is tempting for the agency and the stakeholders to adopt opposing sides and dig in, rather than trying to solve the policy problem.

A different approach: adding early, iterative engagement

Some stakeholders do have the time to engage earlier when the policy process is still in its exploratory stage. We can engage the public before we have settled on a preliminary view of the best solution.

While I think we do need to continue to use the traditional model in the later stages of the policy process, I would like to see more informal consultation occur early on. Importantly, I would like to see it occur before policy officers and their executives start strongly leaning towards particular policy solutions. I am not suggesting that we ditch the formal consultation process. A formal policy paper seeking submissions would follow after the initial informal iterative consultation – if only to provide a specific proposal to focus stakeholders’ attention. 

However, my hope is that more informal consultation early on would result in better proposals being presented later in the process. Permitting stakeholders to have input as policy officers analyse and develop options would allow a more meaningful engagement. Consultation would be less adversarial if both sides do not need to commit to defending or attacking a specific proposal early on. This would encourage stakeholders to provide more information or evidence, identify unintended consequences, and work more collaboratively with policy officers to develop better legislative solutions.

There are two models for early iterative consultation that I would like to consider: small group meetings and crowdsourcing.

Exploratory informal small group stakeholder meetings

This would involve policy officers meeting with small groups of stakeholders (say between one and four people) early in the policy process. The discussions would be exploratory, with their purpose being to gather information or bounce ideas around without committing to one in particular. To ensure that no one felt locked in to defend or oppose a particular proposal, the starting point for the discussion would be that nothing said during the discussions would be taken to be the final views of either party. Potentially there could also be an agreement that the discussions are confidential, though that may not be appropriate if that could be seen as conducive to undue influence or corruption.

Early, informal discussions could:

• help policy officers to better understand how the law works in practice before they start analysing the policy problem
• help define the policy problem, as stakeholders may have information on the consequences of the existing law that is unavailable to the policy officer
• generate more options for solving the policy problem
• provide better evidence for policy officers to assess policy problems and potential solutions.

There is nothing particularly new or revolutionary in what I am proposing here. It is already the case that policy officers may occasionally call up an individual stakeholder early in the process, particularly if they think that stakeholder might have some relevant information. However, this is rare and ad hoc. I recommend a more systematic approach that would be incorporated into the plan for a policy project.

Crowdsourcing policy during early policy development

Crowdsourcing legislative policy is not new. Crowdsourcing involves getting many people to contribute to a project, usually by making use of the internet and associated technologies. Iceland has used it to draft a new constitution. The London School of Economics has done the same in the UK.

You could go all the way and let the public write the actual text of the legislative provisions via a crowdsourcing tool. The Regional Council of Lazio in Italy has been using crowdsourcing to draft its legislation. The approach in Lazio is interesting, but not the focus of this post. We are looking at engagement early in the policy process (drafting occurs later).

My suggested approach would be to continue to have policy officers draft the policy documents. But instead of providing one final fait accompli document at the end, they would publish iterations of the document along the way, accompanied by an invitation for comments or a request for more information. Stakeholders could then participate in the early stages of defining the policy problem, gathering evidence, and generating policy options. As for small group meetings, participation would be on the basis that nothing in the early iterations represented the government or agency view. Again, my hope is that this would lead to stakeholders providing better evidence and insight early on. This would result in better policy proposals being presented at the later formal consultation stage.

Crowdsourcing is a more public tool than small group meetings, which has both benefits and risks. The chief benefit is that by making all communication between stakeholders and public servants public, there is no scope for the suggestion of improper influence. And the knowledge of different stakeholders becomes cumulative, as one stakeholder can add to or expand on the comment of another.

However, the risk is that the reputation of the agency might unfairly suffer if people take early drafts of policy documents out of context. Sir Humphrey Appleby would no doubt pay my suggestion the backhanded compliment of calling it a ‘courageous decision.’ But my own view is that such fears are exaggerated. Moreover, they could be addressed by some sort of notice on the crowdsourcing website, stating that early iterations are not intended to be a final polished product or to reflect the agency’s view. While I acknowledge that crowdsourcing policy development is likely to be more controversial than small stakeholder group meetings, I think it is worth consideration. 

Doing consultation better

Although they are a little different to the way we usually do things, both small group meetings and crowdsourcing are opportunities to better engage with our stakeholders. The old Sir Humphrey approach may be more cautious, but modern public servants are expected to be innovative and to engage with risk. We could do worse than to try these methods.

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[i] There are various names for such document: ‘issues paper’, ‘consultation paper’, ‘policy paper’, ‘options paper’ or a ‘draft Regulation Impact Statement.’

[ii] Of course, some stakeholders will complain that the consultation process was a ‘stitch-up’ merely because their views were not accepted. But consultation means listening to stakeholders and considering their views. It does not necessarily mean agreeing with them.