Open Public Services and the Big Society

The coalition government’s programme of public service reform continues apace. The coming into effect of parts of the Health and Social Care Act 2012 on April 1^st was the latest in a series of changes to the structure and delivery of public services through measures like the Localism Act 2011 or the Free Schools programme. As the White Paper on Open Public Services indicates, these individual changes form part of a broader plan to fundamental re-model how Britain’s government operates. The White Paper is clear that this reform programme is wide-ranging and ambitious. What is less clear from government pronouncements, however, is whether or how it is intended to ensure the democratic legitimacy and character of the proposed reforms.

While the Big Society’s moment in the political sun seems to have passed, the open public services agenda has plainly been influenced by the ideas that coalesced under that electorally-ambiguous banner. Most closely associated with Philip Blond’s ‘Red Toryism’ (reviewed here), the ‘Big Society’ was also the subject of a detailed and thoughtful work by Jesse Norman MP (reviewed here).

Blond and Norman’s work shares a similar diagnosis of the source of (what they regard as) Britain’s current malaise, and of the most effective remedies for the nation’s social and political ills. They both identify the interrelated rise of individualism and of a centralised and interventionist state as the root causes of social decline. Both bemoan the atomising effects of a system in which the state has destroyed all alternative sources of civic power so that it operates alone and unchecked in propagating the prescriptions of a centralised elite. Both also see the solution in a number of interrelated measures: reducing the powers and size of the state; encouraging social and economic entrepreneurship; and devolving power and responsibility from central government to non-state entities such as charities or community organisations.

The White Paper on Open Public Services substantially mirrors this Big Society vision of a connected and pluri-polar society in which the state shares authority with other civic organisations. Big Society values permeate the text: the identification of a top-down and prescriptive central government as the cause of government dysfunction; a desire to remove the state’s monopolistic or privileged position; and a commitment to achieve this by decentralising and disaggregating power.

This is reflected in the five principles which the document identifies as fundamental to reform:

• Wherever possible, we will increase choice.
• Public services should be decentralised to the lowest appropriate level.
• Public services should be open to a range of providers.
• We will ensure fair access to public services.
• Public services should be accountable to users and to taxpayers

The first three principles, in particular, underscore the disaggregated character of the system. The White Paper actively encourages more fragmented systems of decision-making and service delivery. This reflects the core idea animating its programme of reforms – that decisions should not be taken by central government but by bodies that are closer to, directly responsive to, or controlled by the choices of the individual user.

Increased choice – and the logically prior principle of increased competition – are at the heart of the White Paper’s vision. According to it, “the job of government … is to create an open framework within which people have the power to make the choices that are best for them”. Critically, the document states that “the principles of open public service will switch the default from one where the state provides the service itself to one where the state commissions the service from a range of diverse providers”. As the more recent Open Public Services 2012 document summarises it, the reforms “mea[n] re-thinking the role of government – so that government at all levels becomes increasingly funders, regulators and commissioners” rather than direct service providers.

The presumption under the Big Society system is thus that services will not be provided by the state and that they will be provided by a range of different bodies. The White Paper appears to suggest that this will occur regardless of how effectively a service is being provided by a particular body, whether state-controlled or otherwise. For there to be choice, it would seem, there must always be competition between different providers. This emphasis on choice as the animating engine of service delivery is, if anything, intensified in the Open Public Services 2012. This repeatedly identifies user choice as the central focus of the reform agenda. Choice is seen as both a normative and an instrumental good.

The problem of choice

This raises the obvious question of whether the provision of choice should be both the primary goal and chief criterion of effective government action. There are various reasons to suspect that legitimate government must involve more than a basic guarantee of some level of choice. Ensuring that a citizen has the right to choose between expensive or inadequate alternatives does little, for example, to secure good government.

Similarly, confining the government’s role to the provision of choice leaves the end user primarily responsible for the ultimate outcome – thereby ignoring whether that user is offered an appropriate choice or is capable of making an effective choice.

Indeed, there are various issues where it would seem contrary to the broader public interest for service delivery to focus on satisfying user choice – such as creation and marking of school exams, or the dispensation of antibiotics for example.

It seems obvious that a focus on choice alone offers a peculiarly narrow image of government. The White Paper recognises that there are some limitations to a choice-oriented approach, noting that assistance may be necessary to ensure that some users or geographical areas have adequate choices open to them. It seems telling, however, that the measures intended to address these limitations treat them, in essence, as distortions in the market of choice: information deficits, market dominance, or skewed distributions.

Furthermore, the remedies prescribed are input-oriented devices that aim to cure those distortions. So-called voice mechanisms provide information which might not otherwise be factored into the market, while the various fairness supports identified in the document tend to operate by facilitating more effective market participation (either by information or curative incentives) by those who might otherwise be vulnerable consumers. In all instances, however, the processes of decision-making or service delivery remain primarily regulated by the discipline imposed by competition and user choice.

The basic unit of accountability under the Big Society system thus remains the individual user. From a democratic perspective, there is a clear danger that a system premised on responding to user demands will only to those users who articulate demands, or who articulate them in the most effective form. This is liable to distort the representative or democratic character of the system. As Schattschneider observed, “’the flaw in the pluralist heaven is that the heavenly choir sings with a strong upper-class accent. Probably about 90% of the people cannot get into the pressure system.

Devolving decision-making to third-party organisations creates a risk that power will in fact be exercised by those who are sufficiently motivated by self-interest or ideology to engage with the ‘choice’ process, with neither providing a truly representative reflection of the local community’s views. In this way, open public services may become an oligarchy of the self-interested or enthusiastic.

One of the core concerns for administrative law or regulation over recent decades has been to minimise the potential for self-interested actors to have undue influence over public decisions. Fears over regulatory capture are a commonplace in this literature. Yet, the notion of open public services seems to entirely ignore this issue, instead seeking to turn over the design and delivery of public services to anyone with the incentive or inclination to put themselves forward. As any user of Wikipedia (or anyone whose students use Wikipedia) will know, this type of open sourced project attracts not only those acting out of some benevolent sense of civic duty but also those who wish to further their own personal or ideological agendas. In many instances, it is the latter groups who have the greater incentive to succeed. This belies the easy assumption that an open public services Wikiocracy will lead to a more effective or democratic government.

A good example of this weakness is the role envisaged in the White Paper for what it describes as independent champions. On closer inspection, the notion that these ‘champions’ will enhance the democratic character of the system seems highly suspect. In fact, the idea seems directly contrary to democratic principles. The White Paper proposes, for example, that pressure groups such as HealthWatch or the Taxpayers Alliance should be entitled to a specific role in contributing to and monitoring service provision. Yet it does not seem to give any consideration to the question of why private groups with a specific policy position should have a preferred role in the governance process conferred upon them. In particular, the White Paper does not consider what obligations, if any, such bodies should meet in terms of membership criteria, representative character, political funding, donations policy or transparency.

This is especially concerning when concerns have previously been raised about the composition and background of one of the groups specifically identified in the White Paper.  The use of nominally ‘independent’ or ‘expert’ groups as the acceptable face of an ideological agenda is a well established practice in American politics. The White Paper not only makes this possible but seems, on one view, to actively anticipate it. Democratic accountability is not enhanced by privileging the input of the self-appointed.

This speaks to a fundamental dilemma at the heart of the Open Public Services and Big Society agendas: how can a system whose main selling point is its promise to get government out of the way nonetheless ensure the defence of minimum substantive values? There is a sense that supporters of these reforms trust that the system proposed includes self-executing safeguards of core values. The nature of these mechanisms varies. The government seem to believe in competition and choice, while others like Blond would seem to place more faith in the self-government of communities or active associations.

The primary objection, however, is that these solutions trust in assumptions about the likely behaviour of services users and of disaggregated groups that are neither evidence-based nor necessarily supported by anecdotal experience. Reposing faith in communities, for example, may be based on no more than the assumption that decision-making, like cheese or craftsmanship, is better when it is local – more organic, more authentic, more attuned to local tastes and culture. Although this may tap into powerful contemporary narratives and beliefs, Triesman’s work reminds us that such faith in localism may be naively misplaced:

 [T]he popularity of decentralization feeds off romantic images of life in small, usually rural communities …. The mystique of the Athenian polis combines with images of communal barn raisings, church picnics, summer hayrides and so on. Of course, such a view of small-town life is highly selective. Besides dancing around the Maypole, the New England townspeople found time to burn witches and pin scarlet letters onto adulterers.

 This illustrates how the ‘Big Society’ rests on what are, in essence, organisational caricatures about state and non-state bodies. The more mundane reality is that governance institutions, at all levels, have significant strengths and weaknesses. The tendency across most national systems towards checks and balances is a matter not only of constitutional principle but also of operational practice. To entrust significant decision-making powers to autonomous non-state units is potentially problematic from the perspective of both constitutional legitimacy and good government, reflecting a faulty assumption that grassroots involvement is always progressive.

What is needed is an approach which accepts the limits of these varying institutional forms and seeks instead to make use of their strengths rather than focusing on their weaknesses. Democratic experimentalism – by combining the delegation of power to local or non-state actors with robust systems of peer monitoring and empirical review – is one example of how the challenges identified by Big Society advocates might be met in a more effective and democratically-appropriate manner. While these alternatives may lack the ideological purity and simplicity of the Big Society model, the reality is that government is typically a messy and multi-faceted affair. In that regard, theories like democratic experimentalism that take comparative institutional analysis seriously seem more likely to produce effective outcomes than ones – like the Big Society – that seem premised on institutional caricatures and an antipathy to government.

Eoin Carolan is a  lecturer in law at University College Dublin

This is an abridged summary of a piece published in this month’s edition of Public Law.

Suggested citation: E. Carolan, ‘An oligarchy of the self-interest or enthusiastic?: Open Public Services in the Big Society’ U.K. Const. L. Blog (29th April 2013) (available at http://ukconstitutionallaw.org).