STATES OF JERSEY
r
PUBLIC CONSULTATION
Presented to the States on 25th October 2005
by the Policy and Resources Committee
STATES GREFFE
PUBLIC
CONSULTATION
1. Introduction
The Policy and Resources Committee has developed a
system of public consultation that will come into effect following the
introduction of ministerial government. The Committee is now publishing this
Report in order to provide a detailed guide to the new consultation system.
2. Background
2.1 The
report and proposition on ‘Machinery of Government: Proposed Reforms’
(P.122/2001) (Policy and Resources Committee) adopted by the States on 28th
September 2001, set out proposals for a formal system of consultation based on
the U.K. model of ‘Green Papers’ and ‘White Papers’.
2.2 Green Papers set out
for debate and discussion proposals that are still at a formative stage. They invite comment and discussion from all sections of
society and usually cover pertinent social and economic issues.
2.3 White
Papers are often produced following the consultation process that is initiated
when the government issues a Green Paper. White Papers are statements of
proposed government policy on a particular area of concern.
2.4 Green
and White Papers are governed by a Code of Practice on Written Consultations.
This document sets out very detailed guidelines, standards and content for all
government consultation documents.
2.5 Policy
and Resources’ proposed model for public consultation builds on P.122/2001’s
proposals, and is based on the U.K. Code of Practice on Written Consultations,
adapted for use in Jersey.
3. A model for public consultations in
Jersey
3.1 The
Policy and Resources Committee’s objective in proposing a model for public
consultations in Jersey is to provide greater opportunity for people in Jersey to
contribute to the development and delivery of States policy and services.
The Policy and Resources Committee proposes a form of written consultation using ‘Discussion Papers’, ‘Draft
Policy Papers’, and reports and propositions.
3.2 A Discussion
Paper is similar to a Green Paper – it sets out for debate and discussion
proposals that are still at a formative stage. It may contain several policy
options which can be used in gauging public opinion.
3.3 A
Draft Policy Paper is similar to a White Paper. It is a statement of proposed
government policy on a particular area of concern. It may pave the way for
legislation, but there is no obligation to act along the lines that a Draft
Policy Paper proposes, indeed, the draft policy may change as a result of
further public comment.
3.4 Both
Discussion and Draft Policy papers will be governed by a detailed code of
practice, based on the U.K. Cabinet Office Code of Practice on Written
Consultations and adapted to take account of local requirements, including the
Scrutiny process. This adapted Code of Practice is attached as Appendix 1.
3.5 A
Report and Proposition is the final stage of the consultation process (as it
currently is) and enables people to comment on a proposal before it is finally
debated by the States.
4. Proposed consultation model
4.1 Where
possible, an intention to publish a Discussion Paper or Draft Policy Paper
should be outlined, in advance, in the departmental business plan.
4.2 The
decision to publish a Discussion Paper or Draft Policy Paper should be made by
the relevant minister and the title, purpose and date of issue should be
notified to the Corporate Management Board, the Communications Unit and
Scrutiny.
4.3 Not
all proposed policies or decisions will be subject to a process of a Discussion
Paper followed by a Draft Policy Paper. In the main, the publication of
consultation papers should broadly be limited to (a) major policy decisions, or
(b) decisions that affect a broad cross section of the community. Less significant
decisions that affect only a small group of stakeholders could be taken after
going through a less extensive consultation process.
4.4 Before
proceeding, the ministry will check a central register of forthcoming
consultations to avoid publishing a Discussion Paper or Draft Policy Paper at
the same time as another ministry, where possible.
4.5 A
Discussion Paper or Draft Policy Paper will be published in accordance with the
Code of Practice on Written Consultations, on a standard template that provides
basic summary information about the subject matter, as well as the deadline and
contact for comments, and any further relevant documents.
4.6 Each
ministry should designate a member of staff to be responsible for receiving,
collating, evaluating and reporting responses in each consultation exercise.
4.7 Immediately
before it is launched publicly, the Discussion Paper or Draft Policy Paper
should be presented to the States Assembly.
4.8 Once
the consultation deadline has expired, the Minister’s department should prepare
a report outlining responses, and notify the Communications Unit and Scrutiny
of the planned publication date.
4.9 Information
about forthcoming consultations and how to respond, reports on past
consultations, and the Code of Practice on Written Consultations will all be
available on a new site on the www.gov.je
website. This website will also allow people to register to receive regular
emails notifying them of forthcoming consultations.
For detailed guidance on how the proposed consultation
model will work, see the Code of Practice on Written Consultations in Appendix 1.
APPENDICES
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Appendix 1 |
Code of Practice on Written Consultations |
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Appendix 2 |
Extract from P122/2001 on consultation |
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Appendix 3 |
Extract from ‘Machinery of Government: Proposed
Reforms – Implementation Plan’ (Policy and Resources Committee) –
The States Assembly – Policy and Legislation |
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Appendix 4 |
Consultation around the world |
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STATES OF JERSEY CODE OF
PRACTICE ON WRITTEN CONSULTATIONS
The criteria in this code apply to all States of
Jersey public consultations on the basis of a document in electronic or printed
form. They will often be relevant to other sorts of consultation.
This code is intended to make written consultations,
and specifically the publication of Discussion and Draft Issue papers more
effective, opening up decision-making to as wide a range of people and
organisations as possible.
The emphasis here on written consultation is not to
suggest that this is the only or best method of consultation. It is the classic
method and has many virtues, but also limitations. Additional forms of
consultation should always be considered from an early stage. Some
possibilities are set out under criteria 1 and 4 below.
The purposes of consultation need to be borne in mind
throughout the development of a policy (including legislation) or service.
(a) The
main purpose is to improve decision-making, by ensuring that decisions are
soundly based on evidence, that they take account of the views and experience
of those affected by them, that innovative and creative options are considered
and that new arrangements are workable.
(b) Effective
consultation ought also to ensure that so far as possible everyone concerned
feels they have had their say or at least that their interests have been taken
into account.
(c) Consultation
should always be as wide as the circumstances permit. Other things being equal,
public consultations are preferable to closed ones.
Really effective consultation will not be achieved
solely by following this Code. It is good practice for departments to share
best practice on effective consultation.
In order to prevent a number of consultations being
issued at the same time, www.gov.je will
contain a register of forthcoming consultations, helping organisations to
prepare to respond. It will also encourage ‘joining up’ of consultation
documents between different parts of the States.
Summary
1. Timing
of consultation should be built into the planning process for a policy
(including legislation) or service from the start, so that it has the best
prospect of improving the proposals concerned, and so that sufficient time is
left for it at each stage.
2. It
should be clear who is being consulted, about what questions, in what timescale
and for what purpose.
3. A
consultation document should be as simple and concise as possible. It should
include a summary, in two pages at most, of the main questions it seeks views
on. It should make it as easy as possible for readers to respond, make contact
or complain.
4. Make
documents as widely available as possible, with the fullest use of electronic
means (though not to the exclusion of others), and effectively draw consultations
to the attention of all interested groups and individuals.
5. Allow
sufficient time for considered responses from all groups with an interest.
Eight weeks should be the standard minimum period for a consultation.
6. Analyse
responses carefully and with an open-mind. Make the results widely available,
with an account of the views expressed, and reasons for decisions finally
taken.
7. Departments
should monitor and evaluate consultations, designating a consultation
co-ordinator who will ensure the lessons are disseminated.
CRITERION 1
Timing of consultation should be built into the
planning process for a policy (including legislation) or service from the
start, so that it has the best prospect of improving the proposals concerned,
and so that sufficient time is left for it at each stage.
1. Time
must be set aside so that a written consultation can be properly designed, and
reasonable intervals allowed for responses and their analysis. The timetable
for implementation should be such that people affected have a reasonable
opportunity to prepare.
2. It may
not be adequate to rely on a single written consultation alone. Early
consultation is often the key to the success of an initiative, and to securing
co-operation in it: omitting it may cause delay and expense later. It is
important that the agenda for early consultation is not too circumscribed, so
that others can have a part in developing it. A range of options should be
canvassed where possible.
3. It is
helpful to let others interested know the likely timing of different forms of
consultation as early as possible (and any later changes to it). Consultation
documents should describe any earlier, parallel and planned later consultation.
Other forms of consultation that may be helpful include –
· Listening
events.
· Meetings
or seminars with, and visits to, representative groups and other interested
parties.
· Internet
discussions.
· Research,
including surveys of consumers and the general public and qualitative research
(including in-depth interviews and focus groups).
4. The
key is to get the best spread of views, including the views of those most
likely to be affected, and with most to contribute.
5. Set
aside resources. Effective consultation may involve some expenditure of time
and money, and planning in the light of earlier evaluations to ensure value for
money is important.
CRITERION 2
It should be clear who is being consulted,
about what questions, in what timescale and for what purpose.
1. A document should explain which people and groups the
consultation is particularly directed at (and in what capacity, if there is any
room for ambiguity). It should generally invite suggestions about others to
whose attention the document should be drawn. To help avoid duplication of
effort by respondents, it may be useful to include a list of those it is being
sent to and in what capacity they are being invited to comment.
2. A
document should, as far as possible, include an assessment of the impact of the
proposals on groups likely to be particularly affected, and every effort should
be made to ensure that views are received
from all such groups. Ministerial departments should consider whether there is
a particular impact by gender, age, ethnicity or disability; in particular
types of area; or on the socially excluded.
3. Regulatory proposals (including EU legislation) that
may create burdens for business, charities or voluntary organisations should
include an assessment of the impact of this draft law. Where a proposed policy
may have significant environmental impacts these should be described along with
any proposals to mitigate them.
4. The
document should also be clear about any aspects of an issue on which decisions
have been taken, or are inevitable, so as to avoid wasting the time of respondents.
5. It
may also be useful to indicate where the department provisionally favours a
particular course. But the agenda should not be so rigidly defined as to deter
respondents from offering views on related questions of interest to them.
6. The
deadline for responses, and so far as practicable the timetable envisaged after
that, including any further opportunity for consultation, should be clearly set
out.
7. Representative
groups should be asked in responding to give a summary of the people and organisations
they represent.
8. It
should be made clear that responses may be made public in all media, as
appropriate, unless confidentiality is specifically asked for. With some
subjects, such as where the responses may concern individuals’ private lives,
or matters of commercial confidentiality, this may need to be flagged up
prominently, so that no-one inadvertently fails to register a wish for
confidentiality. In some cases, confidentiality cannot be guaranteed, for
example where a response includes evidence of serious crime: this may also need
to be brought out.
A consultation document should be as
simple and concise as possible. It should include a summary, in two pages at
most, of the main questions it seeks views on. It should make it as easy as
possible for readers to respond, make contact or complain.
1. Respondents
may have a great many documents to deal with, and lack time from their everyday
work to study a comprehensive paper. But their views may be of great value, and
everyone should be helped to identify quickly if they are affected, and if so
to contribute productively. That is why clarity, and a summary, are important.
2. A
summary need not encapsulate every point in a document. Its purpose is to help
potential respondents focus, highlighting difficult and contentious issues. It
will rarely be necessary for Ministers to decide that the two-page limit needs
to be exceeded.
3. Documents
should be clearly focused. They should be set out in plain language, as free as
possible of jargon. Technical detail may be unavoidable, indeed central to the
issues; but documents should be as widely understandable as possible. Worked
examples may help in explaining technical concepts to lay people. A guinea pig
audience or public ‘users group’ may be useful in developing or testing a draft
document.
4. Glossy
and elaborate documents are rarely justified. Time spent preparing them would
be better spent on a longer consultation period, or on devising supplementary
means of consultation.
5. Documents
should, however, set out the main information and competing arguments relevant
to a decision, or say where they can be found. Significant sources of
information and opinion outside government should be quoted if relevant,
whether they support the executive’s views or not. Accounts of EU and overseas
law and practice, and other background materials such as legal texts proposed
for amendment, might be included or put on an associated website, if they help
illuminate the questions.
6. It
will often be helpful to set out key questions in a questionnaire – though
questionnaires need careful design, in which expert help may be useful, so as
not to encourage a biased response. Responses in other forms, and on different
but relevant questions, should always be accepted.
7. Any
questionnaire should feature on a website, as an electronic form if possible.
An e-mail, as well as a postal, address should be given for responses, and
preferably a fax number.
8. Identify
paragraphs in a consultation document by numbers or letters (in preference to
bullets, which are less easy to refer to in responses). Pages should be
numbered.
9. Give
details (address, phone, email and preferably fax) of a contact who can respond
to consultees’ questions.
10. Where
possible, give details of someone who can pursue complaints or comments about
the consultation process. This should be a person outside the team responsible
for the document.
11. Consultations
should be joined up within or across departments wherever reasonably possible:
some respondents, especially small businesses, may not have time to deal with
multiple requests for comment. Departments should contribute as early as
possible to the register of forthcoming consultations and examine it regularly
for possible partners.
12. To
avoid imposing extra burdens on people, and organisations with very limited
resources for replying, like smaller firms and some voluntary and community
organisations, it may be better to target consultation through umbrella bodies,
including trade associations and business organisations. But it is important to
speak to those bodies at an early stage, to establish that they can conduct
properly representative consultations, and work out timing; for example, they
may be able to make use of routine consultation processes among their members.
CRITERION 4
Documents should be made widely available,
with the fullest use of electronic means (though not to the exclusion of
others), and effectively drawn to the attention of all interested groups and
individuals.
1. Make
every effort to ensure effective communication with all those who are, or
potentially are, interested. This may involve contact with representatives of
broad consumer, business, voluntary or other interests; as well as more
narrowly defined groups.
2. The
rest of the public sector, where it is likely to be affected, including local
government and front-line staff, should be included too.
3. Generally,
consultation should be publicised by a media release or similar announcement to
encourage wide publicity.
4. Documents
should always be available free of charge on a website from the time of
publication, ideally in a range of formats. Internet versions should be quickly
downloadable (for example, give the option of option of avoiding large graphics).
It may not be practical to include complex attachments (such as large charts),
though early planning will often permit the information in them to be presented
satisfactorily on the web. Consider using email to alert interested parties (on
prior request) to consultations.
5. But
though effective use of the internet is increasingly important, people should
not be excluded from consultation because they are not internet users. Unless
the cost is prohibitive, generally make free paper copies of documents
available, and accept paper responses.
7. The
methods above will often not effectively reach all interested groups. Other
methods to be considered include –
(a) targeting relevant media;
(b) targeted mailings and email
notifications;
(c) workshops.
CRITERION 5
Sufficient time should be allowed for considered
responses from all groups with an interest. Twelve weeks is preferable on major
policies, and eight weeks should be the standard minimum period for a
consultation.
1. Inadequate
time for responses is the single greatest cause of complaint over consultation
by government in the U.K. Avoid consultation periods being limited in order to
meet later deadlines by proper planning in accordance with this code.
Consultation should never have to be shortened below an acceptable minimum for
reasons of departmental convenience, for example because a department has
fallen behind its own implementation schedule.
2. There
will sometimes be circumstances which unavoidably require a consultation period
of less than eight weeks. Among these may be timetables set out in statute;
those unavoidably dictated by EU or other international processes; and those
tied to the Budget or other annual financial cycles. Where a further
consultation takes place on the basis of amendments made in the light of
earlier consultation, a shorter period may also be necessary.
3. The
nature of the problem dealt with may also occasionally mean that urgency is in
the public interest, though real urgency of this sort is rare. Except where the
circumstances listed in paragraph 2 make shorter consultation unavoidable,
if the period is less than 12 weeks, the document should state Ministers’
reasons for departing from the Code, and what special measures – for
example advance notice of at least the broad issues covered – have been
taken to ensure that consultation is nevertheless as effective as possible.
4. Consultees’
circumstances should always be taken into account in fixing a period. Issues
consulted on may be complex, requiring a period of weeks to draft responses.
Organisations may have many staff or members and may not meet regularly or
simply to fall in with a consultation timetable. Be aware of substantial
holiday periods which may reduce the opportunity for adequate time for consultation.
5. To
ensure consistency between respondents, departments may wish to consider how to
deal with requests for deadlines to be extended, before the consultation paper
is issued.
CRITERION 6
Responses should be analysed carefully and
with an open-mind. Make the results widely available, and include an account of
the views expressed, and reasons for decisions finally taken.
1. Responses
should be acknowledged where possible.
2. They
should be carefully analysed, in particular for –
(a) possible new approaches to the question
consulted on;
(b) further evidence of the impact of the
proposals; and
(c) levels of support among particular
groups.
3. Analysing
responses is not simply a matter of counting votes. Be aware of the risk of
single issue groups monopolising debate. Particular attention may, however,
need to be given to the views of representative bodies, such as business
associations, trade unions, voluntary and consumer groups, and other
organisations representing groups especially affected. Eventually it is for
Ministers to assess the argument and evidence and reach decisions in the public
interest.
4. Keep
as full an account as possible of both formal and informal responses to
consultations to ensure that everyone’s view is fairly considered.
5. Decisions
in the light of consultation should be made public promptly with a summary of
views expressed (subject to respondents’ requests for confidentiality), and
clear reasons for rejecting options that were not adopted. As far as reasonably
practicable, this material should be accessible to all who responded, including
on a departmental website.
6. If
significant new options emerge from consultation, it may be right to consult
again on them (though a shorter consultation period may be justified: see
criterion 5 above).
7. Individual
responses should also generally be made available to anyone else who asks for
them. But it is reasonable to make a modest charge for copying and postage. But
where respondents have sought confidentiality, it should generally be
respected. It may also be necessary to keep confidential responses that may
affect third parties’ interests or privacy unfairly.
CRITERION 7
Departments should monitor and evaluate consultations,
and should consider designating a consultation co-ordinator who will ensure the
lessons are disseminated.
1. A single official for each department should be designated
as consultation co-ordinator and contact details should be published.
2. This
person should ensure that the code is complied with, that consultations are
joined up where possible, and that the department contributes to and learns
from the central register of consultations.
3. Departments
should monitor consultations regularly as they proceed, to ensure that the
code, and good practice generally, are being followed. They should analyse
complaints carefully. They should seek to develop internal expertise in
effective consultation, and awareness of where support can be found outside.
4. Departments
should evaluate consultations once complete – perhaps with independent
involvement. Questions to be addressed include –
(a) whether they fully complied with the
code;
(b) which techniques were particularly
effective in securing a wide range of useful responses, and which not;
(c) which represented value for money
(taking into account staff time, as well as direct expenditure);
(d) how far policy and service provision
changed as a result. If it did not, the reasons should be explored with
Ministers; and
(e) respondents’ feedback. This might emerge
from response rates; an analysis of complaints and other comments, or other
dealings with regular departmental contacts. It may also be worth surveying
users after major consultations.
‘The States Assembly – Policy and Legislation
(Extract):
‘7.14 As part
of the strategy for developing a culture of consultation, one of the main
proposals is that there should be a regular and formalised use of “green” and
“white” papers. These are forms of consultation paper that would generally be
issued by departments when they were considering major changes in policy. A
“green” paper would be issued at a relatively early stage in the process of
policy formulation, and States members, scrutiny committees, and the general
public would be invited to comment on the contents. Once these comments had
been taken into account, a department would then formulate its proposals in
more detail and issue a “white” paper, which would again be the subject of
comments from the public and scrutiny committee(s). When this stage was
completed, a department would formally define its proposals for consideration
by the Council of Ministers and onward transmission to the States Assembly.
7.15 There
is nothing radically new about this aspect of the Committee’s proposals. What
is new, however, is the proposal that green and white papers should be a
regular and integral part of the policy-making process. Many States Committees
have issued consultation papers in the past, but this has by no means been a
universal or consistent practice. In future, more emphasis would be placed on
the use of consultation papers, and both the public and their elected
representatives would become more involved in the process of policy
formulation.’
‘The States Assembly – Policy and
Legislation…
During the debate on the Reform of the
Machinery of Government, many States Members asked how they would be involved
in the formulation of policy and the Scrutiny of legislation. The Policy and
Resources Committee is proposing that an obligation will be placed upon the
Council of Ministers and Ministers to consult in a number of formal and
informal ways.
Both the Clothier report and Policy and
Resources report and proposition (P.122/2001 paragraphs 7.14 and 7.15) refer to
‘green papers’ and ‘white papers’ in the general discussion around more formal
processes of consultation.
This note sets out proposals for three
forms of consultation papers which may be used in the future which are the
equivalent to ‘green papers’ and ‘white papers’. From the examples given, it is
clear that Committees are already engaged in these forms of consultation,
although perhaps they have not been described as such.
A clear distinction is also drawn between
consultation and the formal Report and Proposition which may be the result of
the consultation. There is also a need to draw a distinction between
consultation before a policy debate and the process of consultation which leads
to legislation.
An Issues Report (equivalent to a ‘green
paper’) is a discussion document that sets out a problem, or problems, or a
policy objective or the intention to change a law or create a new law.
The Issues Report would set out all
matters (or those aspects understood) which need to be considered, and the
understanding of the subject matter, in an open manner. The Issues Report may
also refer to a wide range of possible solutions, but this would not be
expected to be the definitive list.
Discussions can be initiated by an Issues
Report, the objective being to ensure that the debate begins with all known
information set out and with an open invitation for everyone to contribute. The
contributions may be either further information about the issue or suggested
solutions.
It is also possible that Scrutiny
Committees may publish Issues Reports as a way of drawing attention to
particular matters which they consider have not been adequately addressed by
the Executive.
Examples: Island Plan Issues Document,
Finance and Economics Fiscal Review.
The Draft Consultation Report (equivalent
to a ‘white paper’) is a paper which sets out, for consultation, the preferred
policy or proposal for a new law or changes to existing legislation. The
purpose of this stage of consultation is to test the proposals with Scrutiny
Committees, States’ Members and the public.
The Draft Consultation Report would set
out the problem or objective and the proposed solution or policy proposal(s).
It should justify the solution proposed, but would not have to restate all the
options which may have been set out in an Issues Report.
The consultation process would request
views on the proposals on the basis that the draft is likely to proceed unless
there are significant difficulties or fundamental problems.
In the case of new legislation, the Draft
Consultation Report would form the basis of the brief to the Law Draftsman.
Examples: Draft Island Plan, Policy and
Resources draft proposals for reforms.
In the case of new or changed legislation,
a draft of the law would be issued at an early stage to ensure, through
consultation, that the law reflects accurately the issues previously considered
in the Draft Consultation Report.
The Report and Proposition lodged in the
States is still subject to consultation, but represents the final
considerations to be put to the States for a decision. This should represent
the culmination of the process of consultation outlined above.
The consultation process as outlined here
is likely to be initiated by Ministers. As we have said elsewhere, there will
be nothing to stop Scrutiny Committees seeking to examine policy or legislation
under formulation.’
APPENDIX 4
Consultation around the world
The following information provides examples of a range
of consultation mechanisms that are used elsewhere. It is not intended to serve
as an exhaustive or comprehensive guide.
Consultation documents issued by the U.K. government
are known as Command Papers. Command papers include Green Papers. These are
consultation documents issued by the Government which contain policy proposals.
They set out for debate and discussion proposals which are still at a formative
stage. Green Papers do not commit the government or a minister either to the
views expressed or to a particular direction for future action. This means that
Green Papers are published before a final decision is taken on the best policy
option. They
invite comment and discussion from all
sections of society and usually cover pertinent social and economic issues.
Green Papers will contain several policy options which will be used as the
foundation of firmer recommendations published in White Papers. Green Papers
are actually printed on pale green papers.
White Papers are often produced following the consultation
process that is initiated when the Government issues a Green Paper. White
Papers are statements of proposed government policy on a particular area of
concern. White Papers often pave the way for legislation however there is no
obligation to act along the lines that White Papers propose. White Papers are
often commonly referred to as Command Papers and they can contain a statement
of policy, although the term White Papers can also be applied to
non-parliamentary items. Government responses to select committee reports are
also occasionally regarded as White Papers.
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