BRE

Sources

1. Our complaint to the BRE at the Cabinet Office here.

Further to our complaint

we wrote:

Dear Sir/Madam

On 01.01.07 you wrote to tell us that you would be responding to our complaint within 15 working days. Could you please advise us when we can expect a response as the 15 working days have now passed.

Yours

Chair, AHEd

www.ahed.org.uk

BRE writes - one

Sent: Mon Mar 12 14:10

Subject: Fwd: FW: Official Formal Complaint about DfES Consultation

Dear

(cc'd to BRE colleagues and DfES Better Regulation Unit contact),

Firstly, my apologies on the delay in replying to your original email of the 31st January. The Better Regulation Executive (BRE) had deferred to DfES to reply, as they did on the 21st February, although we realise that this was not made clear in their letter.

Certainly the BRE champions consultation, and that government departments should carry out consultation whenever policy options are being considered. Mechanisms such as consultation, are invaluable for helping stakeholder engagement, and ensuring that Government considers all options and impacts when developing policy.

We are sorry that AHED feels that DfES has neglected to engage effectively on policy decisions regarding impacts on elective home education. However, the BRE accepts that DfES's intended consultation has not yet been launched, as stated in their reply to you.

May I thank you for taking the time in raising your concern with us. The BRE will certainly be looking at this issue closely to ensure that DfES seek to engage all relevant stakeholder groups through consultation.

Yours sincerely,

James Driver

Senior Regulatory Reform Adviser

Better Regulation Executive

Cabinet Office

Kirkland House

22 Whitehall

London SW1A 2WH

T: 020 7276 2829

F: 020 7276 2577

M: 07813 798 156

james.driver@cabinet-office.x.gsi.gov.uk

www.cabinetoffice.gov.uk/regulation

Our following response

Dear Mr Driver,

Thank you for your letter of March 12th 2007 and for your apology.

AHEd are at a loss to see how it is useful or fair to defer to the DfES for a response, the serious complaint we made about their failure to comply with proper consultation procedure, without giving it your own proper attention. We understand that the DfES should be given a chance to explain their behavior but it cannot be fitting for them to be allowed to be the sole investigator of our complaint. If it is not the responsibility of the Better Regulation Executive to investigate complaints about public consultations we would appreciate being pointed in the right direction.

We cannot accept your assertion, that the DfES’s intended consultation has not yet been launched, as a reasonable explanation or excuse for the numerous detailed issues we raised. Your statement illustrates a crucial misunderstanding which is repeated, and the consequent insult compounded, in Elaine Haste's response for the DfES of February 21st 2007.

Our complaint of January 31st 2007 was about two important issues:

A. The process for producing guidelines for LEAs about elective home education, which has been ongoing since at least early 2005 and which has consistently excluded the primary stakeholders: i.e. home educators.

B. The process of preparing a consultation document which was to have been launched for public response early this year about the need, or otherwise, to alter legislation to allow monitoring of home education. As you will see from our initial complaint, this process is based upon flawed and biased research and has also excluded the primary stakeholders: i.e. home educators.

Ms Haste admits that consideration was given to publishing the guidelines resulting from A above, without recourse to a proper consultation process and that the DfES is now only considering whether they might consult widely on a revised edition.

With regard to B, Ms Haste patronises stakeholders by excusing the department’s failure to include them in the preparative stages due to some perceived burden and raised expectations that they could not withstand. It is imperative that the end-users of any policies, in this instance home educators, are given an opportunity to be involved early in and throughout the process to ensure engagement and to avoid the sort of loaded questions we have experienced in past public consultations¹.

Ms Haste also continues to limit the reach of the consultation by insisting that it will be primarily based on-line, with the majority of stakeholders being expected to make themselves aware of it and those without internet access expected to request a hard copy of a document of which they have not been made aware. This lack of proper effort to involve all stakeholders, including hard-to-reach groups, is particularly worrying in light of recent prejudice shown by DfES in favour of schooling.²

With reference to the Code of Practice on consultation the following sections, for example, have not been complied with:

1.3 Informal consultation with these stakeholders should be conducted prior to the written consultation period. Not only does this lead to a more informed consultation exercise but it also ensures that stakeholders are engaged early and have a better understanding of the policy.

The DfES have not involved stakeholders in the pre written consultation period of either A or B.

1.4 The formal consultation period should always include a written consultation exercise. This written consultation period should be a minimum of 12 weeks. Departments should consider the specific circumstances of their stakeholders and consider longer consultation periods at certain times, for example during the summer holiday period.

The DfES in process A have not yet included even the minimum 12 weeks written consultation and in process B appear happy to work to the minimum standard of 12 weeks despite the diversity of the stakeholders and difficulty in reaching many of them.

1.8 Some stakeholders, for example small businesses, children, consumers and those from minority communities, may be particularly difficult to reach. It is important to engage proactively with individuals, organisations and trade associations. Written consultation is not the only or even always the most effective means of consultation. Other forms of consultation may help in this process. These might include: stakeholder meetings; public meetings; web forums; public surveys; focus groups; regional events; and targeted leaflet campaigns.

The DfES have decided to limit their consultation B to an internet-based process despite the fact that many of the stakeholders will not even become aware of its existence by this means. They have failed to utilise any of the other routes suggested in point 1.8 of the Code.

6.4 Consider any unintended consequences of the proposal and ask respondents to highlight these in their response.

The DfES have shown in previous consultations¹/³ that they do not properly consider the unintended, or at least undeclared, consequences of their proposals and AHEd are concerned that in the absence of stakeholder input at an early stage, there may be extensive negative consequences of processes A and B for home educating families.

Further, the BRE Guidance on consultations states:

If your consultation deviates from the principles set out in the Code of Practice, eg., if your written consultation lasts less than 12 weeks, or if it is targeted at a narrow/specific group of stakeholders, you must:

Write formally to your Minister or equivalent, setting out clearly:

· the background information to your policy proposal

· the objectives of your consultation

· the reasons for carrying out your consultation for less than 12 weeks or with a narrow group of stakeholders

· the measures you will undertake to ensure that the consultation is as effective as possible.

A consultation deviating from the principles of the Code must be cleared by the relevant Minister or equivalent to be deemed compliant with the Code.

· Ensure that the consultation is carried out according to best practice in every other respect. This should include conducting extra informal consultation exercises and engaging with your stakeholders throughout the process.

· Ensure that your stakeholders are made aware of the way in which your consultation deviates from the Code and the reasons for this. Outline the extra measures you are taking to ensure that the consultation is carried out according to best practice in every other respect.

Can you reassure us that in the case of process A, the DfES followed this procedure and sought clearance by the appropriate minister?

The BRE guidance also states:

You should start the consultation process as early as possible. As soon as you realise that you may need to consult on a policy proposal, start planning the time available to you. Remember that, as well as the standard 12 week period for written consultation, you need to factor in enough time for:

· Setting clear objectives for your consultation

· Planning consultation activities and identifying stakeholders

· Carrying out preliminary consultation

· Writing the consultation document

· Conducting informal consultation activities (this may be carried out concurrently with the 12 week written process if necessary)

It is clear that the DfES have not planned appropriate consultation activities in processes A or B and have not planned preliminary consultation processes or informal consultation activities with appropriate stakeholders.

The Better Regulation Task Force’s five 'Principles of Good Regulation state:

proportionality: Policy solutions should be appropriate for the perceived problem or risk: you don't need a sledgehammer to crack a nut!

However, in process B the DfES are considering altering primary legislation in order to make unwarranted, intrusive and discriminatory LEA procedures legal when they already have adequate recourse within current legislation to deal with problems that may arise.

Targeting: Regulation should be focused on the problem. You should aim to minimise side-effects and ensure that no unintended consequences will result from the regulation being implemented.

However, in process B the DfES are considering implementing policy that will have widespread negative effect on law abiding home educating families.

The Task Force also say:

It is also important that you consider and consult on alternatives to regulation. Think about:

No intervention: Is it really necessary or feasible to intervene?

Despite strong opposition from the primary stakeholders and end-users, home educators, DfES ignore expert, informed advice that intervention in this instance is not necessary.

and:

One of your objectives should always be 'to improve the quality of the policy proposal and outcomes through evidence-based input from a range of stakeholders.'

DfES have not produced any evidence-based material to support the need for process B.

and:

It is also important that you manage the expectations of your stakeholders. Stakeholders will assume that every aspect of the policy proposal is open for discussion unless you explicitly state that this is not the case. This means that you must establish at the outset of the consultation process any aspects of the policy proposal which have been already finalised and which will not be subject to change, even after consultation.

Ms Haste wrote to AHEd that DfES did not wish to raise stakeholder expectations yet stakeholders have at no time been informed about any finalised aspects of the process B, which are not open to discussion.

The Task Force state that to avoid risk factors DfES should be:

Engaging effectively with stakeholders throughout the process, not only for the purposes of receiving responses for the written consultation and carrying out informal consultation wherever possible.

DfES have failed on both of these issues in both processes A and B.

It would appear that a fundamental flaw in both processes is the mistaken identification of the primary stakeholders. The end users, ie those whose lives will be most affected by any policy changes, are not for example local authority staff or teachers' unions but individual home educating families. They MUST be given priority when assessing the impact of any proposals that may affect them.

AHEd hope you agree that the detail above provides clear reasons why the BRE should intervene in these two processes that have not conformed to proper practice and thereby leave the primary stakeholders, home educators, at risk of unfair, discriminatory policy formation.

Yours sincerely,

Barbara Stark,

Chair, AHEd

for the committee and membership of AHEd

References:

1. Numerous complaints were made to DfES regarding the consultation on the Education (Pupil Registration) Regulations 2006.

2. In Feb 2007 a DfES spokesperson was quoted as saying, "Standards have never been higher and with record funding in our schools we believe the best place to educate a child is actually in school" and on 23rd March 2007 Mr Matt Valilly of the DfES Public Communications Unit wrote, “I must confirm that the Government believes that, for most children, school is the right place in which to receive education.”

3. The DfES consultation on the definition of full-time education in independent schools was challenged by many home educators, including AHEd because of the undeclared negative effects of the proposals for home educating families.

BRE Writes - two

Sent: Fri Apr 27 11:05

Subject: Fwd: RE: Official Formal Complaint about DfES Consultation

Ms Stark

Thank you for your email addressed to my colleague James Driver. I work in the Cabinet Office’s Better Regulation Executive and one of my areas of responsibility is consultation policy and best practice.

I have been discussing your points with DfES officials and I can assure you that your complaint is being taken seriously and given due consideration at all levels in the Department. DfES Ministers and officials are currently discussing the policy areas you highlight. Decisions on how to take forward policy development are expected over the coming weeks.

I therefore suggest that if, when announcements have been made (DfES will contact stakeholders when this happens), you feel your points have not been taken on board and you are not being given the opportunity to feed in your views, that you get back in touch with me at that point.

Regards

Ian Ascough

Cabinet Office Better Regulation Executive, Consultation Policy