Purposes of consultation

Gathering evidence in consultations was closely linked to achieving an inclusive balance of voices and participants, and having a variety of evidence sufficient to reflect this. It was also seen as essential to good decision-making. Key issues were: 

Evidence for decision-making

As the basis for decision-making and recommendations, evidence had to be broad, encompassing a range of views and types, so that decisions could adequately balance a range of interests.

From our perspective, they're looking at getting a wide range of opinions on what a policy change would mean for different parts of the industry. Even if you just look at the creative industry, there are so many parts of that ecosystem, that see policy impact in very different ways. So, I think that what they're looking at is generally getting different industry views, different views from users, different views from NGOs, third parties, government, other regulators. [SH20] 

I think the theory holds that taking the responses from stakeholders into account when developing policies, these policies will be better. [SH21] 

An openness to different types of evidence, and new perspectives

Accessing and listening to new ideas and perspectives of a topic was key to developing more imagination around policy choices, which participants felt was necessary in a fast-moving industry, and could ‘shake up’ the system if necessary.

You'd like to think when they're consulting with stakeholders who are going to come up with really obvious things that they haven't spotted themselves. […] because what's the point in setting up some legislation if they've missed the main point or they've missed the whacking loophole that everybody is going to immediately jump into? [PU6]

You don't know everything, so you have to be a little bit aware of it, but on the other hand, you have to also keep your naivety to ask questions that are shaking, a little bit, the system more. Otherwise, you're just confirming the whole system more and that's what you see. In the process as it is now, it is people that know who can participate on a really efficient or effective basis, but they are people that are kind of consolidating the process because they don't step outside of the line of thinking. So, I think you have to have a mix of people that are competent in the matter but they have to be balanced with people that are, kind of, the dreamers that are saying, "We should shake up the whole process a little bit to rethink it." [SH22] 

High-quality evidence

High quality evidence that could be tested and assessed robustly, was also important given that it was going to be used for policy decisions. However, some participants also valued individual stories, experiences and case studies.

So, the good contribution, or the ones that are actually much more valuable are ones that are not just based on hearsay or on anecdotal things, you know? The more evidence, the better. [SH1]

I suppose that, in terms of principles to be applied, I’d be pretty strongly on the side of you need an evidence base. That evidence base needs to be tested. If you are not working with rigorous testing and feasible evidence then you are unlikely to be doing a very good job. [SH29] 

But where [case studies] are very helpful, I think, is if somebody has got a very personal, individual concern about a situation they've been through, this is where the individual responses can be incredibly valuable, because it does help policy makers. "I'm not really bothered about the overarching policy. I needed a licence for my village fete, and I couldn't get one. What are you going to do about it?" [SH9] 

Narrow evidence

Some participants expressed concern about narrow definitions or understandings of evidence collected through consultations potentially limiting the scope of the consultation and excluding some voices.

[A consultation] is one way of, kind of, gathering data, but it’s only one way and it’s a way by which the industry is made responsible for gathering the data for the policymaker and presenting it in a form that’s prescribed by the policymaker in order to inform policy rather than, for example, the policymaker going out and conducting surveys or data-gathering through book research etc. [SH13]

What consultations should aim to achieve is that they should test emotion against evidence and weight of voice against minority arguments, which may, for one reason or another, merit more attention than their numerical weight puts in. [SH29] 

The idea of balance related to balancing stakeholder interests, perspectives and rights claims; and to smoothing out unequal power between stakeholders (e.g. between those who had louder ‘voices’ in government and those who are heard less often).

I think, you know, it is very much a balance, isn't it? Copyright, they always say, is a balance between the rights of the author, the creator, to get some kind of remuneration and the ability for other people to use their work without being overly restrictive. I think they’re doing it to try to ensure that we end up with laws that are balanced. It’s quite a delicate balance, to get it right… [SH24] 

I don’t think we have a clear understanding of exactly who else is meeting with them, as part of that process. But I think there is a lot of good faith, that the UK does have very balanced regulators, and that they do their best to get different views. [SH20]

Balance was thought to lead to better functioning policy in the end, and was underpinned by effective listening to all voices affected by the policy in question.

Participants felt the government’s role was to listen to stakeholders and take their views into account, in order to make better decisions and make policy in the public interest. This involved:

Openness

Openness included openness to hearing a wide range of voices, as well as to hearing information that might change opinion about what needs to be addressed.

it’s some flexibility on understanding that when you are information gathering you necessarily might not have all the right answers, so don’t be too prescriptive in what you’re asking for, if you don’t know yourself. [SH30]

Ensuring balance is achieved

Government was the only party that could ensure a desirable balance was achieved during the consultation, and so this was central to their role.

We see our job very much as trying to balance the voices. So, we try to listen to both sides. There are some people that do shout louder, and more often, but that’s because they employ lobbyists whose job it is to shout loud and often, whereas some institutions don’t have lobbyists, and so, they try to balance that with all the other work that they need to do. [SH1] 

Making the final decision about policy and compromises

Given that politicians, and not civil servants, are elected to make policy, there was a feeling that they should be the final decision-makers.

It should be the government that leads the policy balance, rather than the civil service. It shouldn’t be for the civil service to decide where the balance is. It should be for the politicians. But then politicians need to understand the issues properly. [SH15] 

Well, if you have the policy, the legislators, they are trying to weigh up all the arguments, they are sort of judge and jury, voting [on] what they see is the best way forward. And I suppose the different contributors have to respect that, otherwise they’re just going to keep moaning all the time, making it difficult for the other party. So it needs some kind of judge and jury I think, because you will always have these perfectly justifiable, opposing arguments [between rights owner and licensor] [SH10]

The idea of inclusion was strongly linked to achieving balance, gathering an appropriate range of evidence, and making good decisions. Participants felt that inclusion should cover those who were affected by policies, interested in policies, or both. At the same time, not all consultations were going to be relevant to everyone, so inclusion also had to be tailored to the context. Inclusion  ensured that policy decisions were underpinned by accountability and not just ‘devised in a dark room somewhere’. On the other hand, if inclusion was meaningless, it also undermined the validity of consultations. 

Affected stakeholders

Affected stakeholders included those for whom the consultation was directly relevant, or who were in some way impacted by the decision.

it depends on what the consultation is on, basically. If the consultation is about educational exceptions, then the educational sector should be properly represented. Not just by one individual with an interest in the topic, but basically higher education, further education, secondary education, primary education. They should all be represented. [SH25] 

For me, I think anyone that the potential change impacts on should be consulted. [SH21] 

I think that approach of looking at every shareholder’s opinion is very important. And the more diverse that opinion is, the more useful it becomes and the more realistic it becomes. Because I feel like, in some cases, you have policies which don’t reflect real life or linked experience. [PU2] 

Interested stakeholders

Interest, as a criteria for inclusion, was less focused and more stakeholder-driven, a ‘natural filter’ for selection.

I think anyone’s who’s interested in it. I think it should be as wide as possible. I don’t think there’s any benefit in trying to narrow it down. [SH30]   

The public voice

Many participants recognised that the public voice was often absent, sometimes because it is difficult to identify and access, and sometimes for lack of perceived expertise. However, their views were seen to be important, and the government had a duty to be accountable for decisions that affected them.

For us, it will impact us, but maybe we’ll challenge the policy, the expertise. Or we’ll challenge the people, the creators that create content that we consume. So, I think the contribution of the users is very important, because they are the final kind of receivers of the service. [PU2]

Individuals should be protected, and every citizen should be able to have the benefit of intellectual property, as well as access to it. In that context, it's really, really important that some umbrella bodies are able to represent individuals who don't want to put their own responses in; they'd much rather have a trusted umbrella body do it on their behalf. [SH9] 

I think there’s accountability. If you are designing a service or you’re engaging on a particular topic that has an impact on the population, then it’s about ensuring that, you know, this idea hasn’t been devised in a dark room somewhere, you’ve taken into consideration the views of people, or you’ve at least actively sought the views of individuals or the population. [PU3] 

The usual suspects / symbolic inclusion

If inclusion extended only to ‘the usual suspects’ - those organisations who already had relationships with government, or the resources to engage - then it limited the benefits of consultation because it limited evidence and balance.

Symbolic consultations were based on pre-determined outcomes or intentions; paid lip-service to consultation, but did not take contributions seriously; and were done only for the sake of appearances or for political reasons. 

There are times when you genuinely think you’re having an engagement and times when you think, “They’ve made their minds up. You are now just annoying me because you are obviously wasting my time and you’re not listening.” [SH30]

I'm sceptical because of my fear that if it's a government consultation, they've already got a predetermined answer that they're looking for. If you start off with a consultation looking for the answer that you want, you will skew it to get the answer that you want. If people feel that that's what's happening, they'll just switch off. [PU6] 

It is very much led by what industry and business wants. They need to be seen to be being balanced and consulting with education and users. They don’t seem, to me, to want to go too far. [SH24] 

Symbolic consultations were easily detected through the types of questions being asked, which were often too narrow and specific, preventing discussions about broader issues.

'Often government consultations ask specific questions based on a certain view of what needs to be done. They are forcing you down a certain road, which is not necessarily one you favour. [SH6]  

A danger of symbolic consultations was that they wasted time and resources, and undermined trust in the consultation process among participants.

[I]f you're going to consult, you have to do it properly, you have to do it meaningfully  [PU6]

It means that it's a waste of time [...] It appears as if you were participating in the decision of what the objectives should be, when you weren't. The objectives were already set up, and you were just there, brought along, basically.’’ [SH23]

To avoid this danger, consultations should be based on open and honest communication about what the agenda is, and take all contributions properly into account.