I prepared this note for some friends who were arguing with a government agency over whether they were adequately consulted. (It does not matter which one; the disagreement about consultation standards is widespread.) For sometimes a public servant says that there has been consultation on a matter of public interest. Yet many stakeholders cannot recall that happening. The dispute revolves around the meaning of ‘consultation’.
What constitutes ‘consultation’? Famously, a 1993 legal case concerning Wellington Airport established the following requirements for effective consultation:
- a genuine effort;
- sufficient time;
- sufficient information;
- meaningful discussion; and
- an open mind on the part of the decider.
Of course, the courts can rule on the adequacy of consultation only where there is an explicit reference in the statute. Where it is most likely to appear is law involving resource management at a local level. But in most statutes and practices there is no reference to consultation.
However, government decision-making processes which are not covered by statute may still involve ‘consultation’. But it may not be to the standards set by the courts.
For instance, Parliament has before it the Public Service Legislation Bill which was introduced on 16 November 2019 with submissions to the select committee closing on 31 January 2020, less than 35 working days later. This was hardly ‘sufficient time’, as would be required by the court’s definition and the background information to the proposal is hardly sufficient either. Whether the consultation will be a genuine effort with a meaningful discussion and an open mind awaits parliamentary deliberations. If the passing of the previous State Sector Act is any indication, the answer is almost certainly not.
The fact is that claims that there has been ‘consultation’ when the government makes a decision would rarely pass the legal test. As Humpty Dumpty would say
‘When I use a word, it means just what I choose it to mean—neither more nor less.’
‘The question is,’ replied the law lords, ‘whether you can make words mean so many different things.’
‘The question is,’ said Trumpety Trumpy, ‘which is to be master—that's all.’
Who are the masters? In our system of government it is the politicians, the generic managers and their public relations advisers and spokespersons.
To begin with managers. While there may not be legal provision, managers may have an interest in consulting their stakeholders although how much time and information and who is consulted is at their discretion. A useful test is at what point the decision is so committed that only minor changes can be made (without a massive backing down as has occurred with Concert FM). Frequently, even the informed public first becomes aware of the decision at this point.
The situation arises out of the hierarchal culture of generic managers. There is no requirement to consult those lower in the hierarchy. It may be in the interests of the manager to do so, but that is in their judgement, not a necessity. Managers only report upwards.
In principle public service managers are subject to ministers. Frequently decisions which have incurred the intense wrath of lower stakeholders do not seem to be reported to the minister until after the public outcry. Either the managers are so arrogant they do not see any need or they are so out of touch they misjudge the concerns of their stakeholders.
In turn, or rather in principle, the ministers report to Parliament, although often it appears to be as supine as Republican senators in an impeachment judgement.
In principle, Parliament is held accountable triennially to the public. Typically, voters are confronted with such a table d'hôte menu with limited and packaged choices, that they find it difficult to express their outrage over particular issues. Rarely then, are the state sector officials, protected by these layers of low-effectiveness accountability, held to account.
The danger that democracy faces is a grumbling majority who see powerful bureaucrats uncontrolled by seemingly impotent ministers and a supine parliament. Their rejection of ‘expertise’ often amounts to the rejection of bureaucratic advice, including that of the acolytes who surround them. The grumbling has not happened in New Zealand to a great extent yet, but overseas the grumblies have led to an ugly majoritarianism under a popular leader who promises to address the grievances; in power they do not.