The Consultation Conundrum

This piece was commissioned from me in 2004, but in the end was never published. I think it retains some relevance.

In the early days of the 1997 Labour government, Paddy Ashdown, the then leader the Liberal Democrats, raised the question of whether Tony Blair was ‘a pluralist’ or ‘a control freak’. The instinct of many people today, as indeed then, would be to say that there was no question about it: for example, the BBC political correspondent Nicholas Jones called his 2001 book on New Labour’s media operations The Control Freaks. Yet, alongside New Labour’s well known manipulative tendencies, sits an apparently genuine commitment to subsidiarity, localism and devolution. The tension was encapsulated in the fact that the creation of elected assemblies for Scotland, Wales, and Northern Ireland, and the introduction of ‘executive mayors’ for big cities, were paralleled by ham-fisted attempts to prevent Rhodri Morgan and Ken Livingstone becoming First Minister of Wales and Mayor of London respectively. The contradictory thinking that lies behind it is summed up in a remark made by Hazel Blears MP in a recent Fabian Society pamphlet: ‘Our choice is between giving people control over their lives, or failing to deliver the transformation we want.’[i] Of course, if you give people control over their own lives, they may opt for a transformation other than the one that ‘we want’, or, indeed, for no transformation at all. This is the Consultation Conundrum.

In fairness, leading members of the current government are aware that New Labour has often strayed too far in the direction of ‘control freakery’, and that that, paradoxically, has often damaged its ability to get what it wants. Peter Hain MP, a minister who often acts as a kind of licensed critic of his own boss, observed in March 2004 that rows over tuition fees could have been won earlier if trade unions, backbenchers and the party had been properly consulted. As neither this policy nor the proposal on foundation hospitals had been through the party’s formal policy-making process, he suggested, ‘however compelling the case made by ministers, the policies seemed to party members to have dropped out of the clear blue sky.’[ii] Tony Blair himself has also acknowledged an important aspect of the conundrum, and suggests a means of addressing it:

'I readily accept that there may be tension between guaranteed national standards, the machinery to underpin and enforce them, and the freedom necessary for local autonomy and diversity to flourish. … Hence our intention to extend “earned autonomy”: a right for the successful who are achieving good standards to manage their affairs and innovate with greater freedom from central oversight and red tape. Foundation hospitals, and the reduced Ofsted obligations on highly rated schools, are examples of this.'[iii]

A cynical reading of the two men’s remarks would suggest that Hain views consultation simply as a means of easing the passage of policies that have already been decided, and that Blair’s ‘earned autonomy’ amounts merely to the freedom to comply with Whitehall’s demands off one’s own bat. A more generous interpretation might on the one hand applaud New Labour for having recognised its dilemma, and some of its own past failings, and, on the other, remark that, as yet, the Consultation Conundrum remains in place. I want here to substantiate this latter interpretation with reference to my own recent experience of standing for election as a governor of a Foundation Hospital Trust.

The government argued, when proposing the creation of Foundation Trusts, that local staff and communities had too often felt disempowered by top-down control in the NHS. Lack of local accountability had, it was suggested, prevented services being properly attuned to the needs of local communities. The need, therefore, was to establish a health service ‘where standards are national but control is local.’[iv] The Foundation Trust policy led to fears that local autonomy would lead to inequitable provision of the kind that Labour had traditionally condemned. A different worry, and perhaps a more realistic one, was that the promised freedoms would turn out to be illusory. In the words of Ray Robinson, professor of health policy at the LSE: ‘Those who believe that there is a case for greater separation of local healthcare provision from central control are inevitably confronted with an NHS legacy of centralised command and control that has proved stubbornly resistant to change. Despite claims to the contrary, the emphasis on national standards and accountability set out in [the government document] Delivering the NHS Plan suggests that this is still an important part of the ministerial mindset.’[v] The local democracy that was supposed to play an important part in health service provision would thus be likely to prove a dead letter.

In Cambridge, an important test of the reality of local control was provided by the consultation process, conducted from September to November 2003, regarding the Addenbrooke’s NHS Trust’s proposed application for Foundation status. After all, it might have turned out that local people did not want a Foundation Trust in the first place. Would an unwilling public have their freedoms thrust upon them? I attended one of a series of public meetings, at which comments on the proposed appliaction were solicited. I expressed concerned at the suggested governance mechanism for the Foundation. Foundation Trust members – the people who elect Governors – are in effect self-selecting, raising the running the risk with intense, but unrepresentative, views.[vi] I was told that this was inherent in the Health and Social Care Bill (which at this point had not yet been passed, and was therefore still subject to amendment.) I subsequently took the point up with my MP, and wrote to the Cambridge Evening News about the issue[vii] – for what it was worth. The second point I raised – after the meeting, in fact – was about the consultation document circulated by Addenbrooke’s itself. My objection here was not to the ten questions that were asked. These included ‘Do you agree with the proposed membership area?’ and ‘Do you agree with the proposed eligibility criteria for staff membership?’ and were, in themselves, perfectly reasonable. What I found outrageous was that there was no explicit question along the lines ‘Do you approve of the decision to seek Foundation Trust status?’ Without this, it seemed to me, the exercise was virtually pointless.

I was not, however, prepared for the bizarre nature of the response I received to my emailed protest. This came from the Foundation Trust Project Manager, who wrote as follows:

'We did not pose an explicit question about opposition or support to the decision to seek Foundation Trust status in the consultation document for two reasons.
First, the decision to see[k] NHS Foundation Trust status has not yet been made, as it is subject to public consultation. Second, we were keen to provide detail on our proposals as well as the broader question of support or opposition.'[viii]

If there was sense or logic here I was unable to see it. Perhaps, though, the aim was simply to enrage me to the point where I became more actively involved in trying to determine the future of NHS provision in my local area. If so, the plan worked. For the first time in my life, I went to my MP’s surgery, and she kindly agreed to take up my concerns. Her efforts brought back a bland response from Malcolm Stamp, Chief Executive of Addenbrooke’s: ‘We would welcome any further comments from Mr Toye and have noted his concern that we do not ask a direct question regarding support for our application to become an NHS Foundation Trust as part of the public consultation process.’[ix] At this stage I determined to stand for election as a Governor myself, in order to press my viewpoint. I was not, as it happens, opposed to the application for Foundation status. I had, however, become convinced that the ‘consultation’ was largely a sham, and that Trust was determined to press ahead with the application come what may.[x]

It was easy enough to put myself up for election. (Another first – I had never stood for public office before.) Knowing what to do so as best to maximise my chances of winning was a different matter. The Development Director of the Socialist Health Association observes that there have been a number of difficulties with the election processes used by hospitals:

'One was the requirement that candidates needed to be backed by other members, when they had no way of knowing who the other members were. Another was that most [including Addenbrooke’s] limited the material that candidates could submit about themselves to 100 words. That did not give them the opportunity to do much more than say where they lived and how old they were.'[xi]

In addition to this (at least in the case of Addenbrooke’s), the Department of Health guidelines to candidates were distributed only at a very late stage. As far as one could gather, this was because they had only just been written. Not knowing what was allowed and what was not - I took virtually no steps to drum up support. Not that I claim this made much difference to the final outcome (I lost).

My mistake may have been to eschew, in my manifesto, the rather bland and at times somewhat sycophantic tone adopted by the successful candidates. (‘I am passionate about a strong and efficient Addenbrooke’s NHS Trust’, they wrote, or ‘We are all extremely lucky to have a hospital with such an excellent reputation as our local hospital.’) Instead I went for the jugular. I quote all 100 words of my manifesto:

'I was born in Cambridge in 1973, and work at Homerton College. I attended a public consultation meeting about Addenbrookes’s decision to seek Foundation status. The "consultation" questionnaire issued did not contain an explicit question about whether or not Foundation status should be applied for. I e-mailed the Trust asking why not; I was told this was because "the decision to seek NHS Foundation Status has not yet been made, as it is subject to public consultation." This struck me as such nonsense that I determined to stand as a governor to ensure that future consultations are carried out properly.

Either in spite or because of my approach I secured over 200 votes; the seven successful candidates in the public constituency[xii] received a minimum of 700 votes each.

In a recent article in the British Medical Journal, Professor Rudolf Klein offered a stinging indictment of the Foundation Trust system:

'The rhetoric of ownership by and accountability to local people assumes that local people do indeed want to be involved in running the NHS. Results of the first round of elections to the boards of governors, responsible for the operations of the new trusts, show that this is an overoptimistic assumption. For many of the aspiring trusts the challenge has been how to overcome apathy.'

He cites the case of Bradford Teaching Hospitals NHS Trust, where only 541 local people (or well under 1% of the population) chose the 17 governors. He argues that ‘Only in the case of specialist hospitals is there evidence that foundation trusts can mobilise a large and active constituency.’[xiii] Much as I agree with many of Klein’s criticisms of the new governance system, I would say, on the basis of my own experience, that the apathy he describes is by no means universal. The Addenbrooke’s Foundation Trust claims over 16,000 members. The ‘Meet the Candidates’ event I attended was packed; I can hardly imagine a ‘Meet your local council candidates’ event would have been so well attended. The Cambridge area may be unusual; or it may be that Addenbrooke’s efforts at attracting members have been more intense than those of other Trusts, in which case it is to be commended. At any rate, there are encouraging signs of life.

Nevertheless, whether or not Foundation Trusts can achieve democratic legitimacy remains to be seen. This partly depends on whether or not the powers of the governors turn out to be meaningful, which in turn depends on how far ministers are in practice prepared to tolerate genuinely independent initiatives by the new bodies. What will happen when the aspiration towards ‘giving people control over their lives’ conflicts with the desire to ‘deliver the transformation we want’? I would by no means argue that the desires of ‘local people’ should always take precedence, when to permit this would damage, directly or indirectly, the competing interests of another group of ‘local people’ elsewhere. Centralism is not always inappropriate.[xiv]

In 1937, Douglas Jay, a future Labour minister, made a remark that later became notorious: ‘in the case of nutrition and health, just as in the case of education, the gentleman in Whitehall really does know better what is good for people than the people know themselves.’[xv] What has generally been overlooked, though, is that Jay was presenting these cases as exceptions to a general (and at that time unusual) socialist defence of consumer freedom.[xvi] It may well be that there are in fact many aspects of health, nutrition and education that are best left to individual choice rather than to Whitehall. But Jay’s comment may well point to one possible solution to the Consultation Conundrum: ministers should distinguish more clearly between what are, and what are not, legitimate areas for public consultation, and proceed accordingly. In any event, let them be clear that consultations, when they take place, must not simply be aimed at cloaking in phoney legitimacy decisions that have already been taken. Otherwise, ‘earned autonomy’ will merely be ‘democratic centralism’ under a new name.

[i] Hazel Blears, Communities in Control, Fabian Society, June 2003.
[ii] Peter Hain, ‘Reclaim the party’, The Guardian, 10 March, 2004; Peter Hain, The Future Party, Catalyst, 2004.
[iii] Tony Blair, The Courage of Our Convictions, Fabian Society, 2002.
[iv] Department of Health, A Guide to NHS Foundation Trusts, Dec. 2002, pp. 3-4.
[v] Ray Robinson, ‘NHS foundation trusts: greater autonomy may prove illusory’, British Medical Journal 2002; 325: pp. 506-507.
[vi] Rudolf Klein, ‘Governance for NHS foundation trusts’, British Medical Journal, 2003, 326: pp. 174-175.
[vii] Cambridge Evening News, 29 September 2003.
[viii] Email from Frances Harper to the author, 30 September 2003.
[ix] Malcolm Stamp to Anne Campbell, 24 October 2003.
[x] By its own account, Addenbrooke’s distributed the consultation document to over 2,000 organisations and individuals. There were 52 ‘formal responses’. In spite of the fact that no direct question on support or opposition for the application was asked, there were 24 comments of general support for Addenbrooke’s becoming a Foundation Trust, and 18 opposing the concept of Foundation Trusts. Addenbrooke’s does claim to have made some (relatively minor) adjustments to its application as a result of the consultation process. See http://www.addenbrookes.org.uk/resources/pdf/foundation/consult_feedback.pdf (consulted 8 June 2004).
[xi] Comment by Martin Rathfelder, 4 June 2004, http://bmj.bmjjournals.com/cgi/eletters/328/7452/1332 (consulted 8 June 2004)
[xii] Governors stand in one of three constituencies: Public, Patient, or Staff. I was standing in the Public Constituency, and everything that I have said relates to this part of the election. In addition to the seven Public Governors, Addenbrooke’s has eight Patient Governors, and four Staff Governors, as well as ten Partner Governors (representing, for example, local Primary Care Trusts). There is also a Chairperson, who is not a governor.
[xiii] Rudolf Klein, ‘The first wave of NHS foundation trusts’, British Medical Journal, 2004, 328: p. 1332.
[xiv] See David Walker, In praise of centralism: a critique of the new localism, Catalyst, 2002.
[xv] Douglas Jay, The Socialist Case, Faber and Faber, 1937, p. 317.
[xvi] For a full discussion, see Richard Toye, ‘The “gentleman in Whitehall” reconsidered: the evolution of Douglas Jay’s views on economic planning and consumer choice, 1937-1947’, Labour History Review, Vol. 67 no. 2, (Aug. 2002), pp. 185-202.