Bold, adventurous policymaking is back in vogue under Andy Burnham’s Government. Casting aside the “administrative frictions” it says have constrained ministers, the Government wants to make policymaking faster and more decisive.

In a recent joint letter to ministers, Rt Hon John Healey MP, Rt Hon Louise Haigh MP and Rt Hon Ellie Reeves KC MP identified three areas for reform: consultations, the attitude towards legal risk and judicial review. Together, the proposed changes signal a broader effort give ministers greater freedom to act and move with more agility from policy ambition to implementation.

For businesses and organisations seeking to engage with government, these changes have an important consequence. Across all three areas, formal opportunities to react to government action may become narrower or arrive later in the policymaking process. In effect, this means that influence may be moving further upstream, placing a greater premium on understanding what is coming, when to intervene, and establishing the relationships and reputation required to be heard before policy is set in stone.

The era of languid policymaking is over, Burnham’s senior lieutenants would have us believe. With under three years to a General Election, the need for speed is greater than ever before.

Consultations not dead yet

The proposed reforms do not mark the end of consultation. The letter makes clear that formal consultation will continue where legally required, where failing to consult would be “conspicuously unfair”, or where ministers believe external evidence is needed and consultation is the right way to obtain it. So far, so same-old.

The major change is the letter’s rejection of formal consultation as the default route for external input. The Government argues that a culture which “prioritised process over outcomes” has caused unnecessary delays to policymaking. Instead, it wants to pursue more “participatory policymaking”, involving relevant stakeholders earlier and more directly in policy development, and has promised further guidance on public participation in the autumn. Some in the civil service argue that this is what they do already. Others are fearful that this just moves the problem to a different part of the pipe.

For clients, this shifts the point at which stakeholders need to engage. Under a traditional consultation process, an organisation can wait for government to publish a proposal before mobilising its expertise, developing a position and responding. If formal consultation becomes less routine, waiting for the public starting gun could mean arriving after the most consequential decisions have already been made. Mapping and interpreting the gas clouds of government thinking before they have solidified is going to become a key task.

This all makes political intelligence and forward-looking monitoring increasingly valuable. Understanding ministerial priorities and departmental thinking can help organisations identify when to intervene before proposals become publicly visible and before the parameters of debate have been fixed.

It also increases the importance of reputation and relationships within Whitehall. If officials and ministers have greater discretion over who is involved in the formative stages of policymaking, organisations benefit from establishing themselves as useful participants in the process. Credible data, thoughtful public commentary, constructive policy proposals, well-prepared expert spokespeople and a track record of serious engagement can all help establish an organisation as one government instinctively brings into the room on relevant policy issues.

Legal risk still in the equation

The letter, and the subsequent guidance by the Attorney General’s Office on legal risk, emphasise that risk is rarely binary. Where a “tenable legal argument” exists, ministers should feel empowered to proceed even where legal risk may exceed 70 percent. Government lawyers are also encouraged to identify mitigating measures and alternative routes where proposed policies might encounter significant legal barriers.

For stakeholders engaging with government, this suggests that a faster policymaking process may also bring greater policy volatility. A policy that might previously have been slowed or abandoned because of legal uncertainty could now advance more quickly where ministers and their advisers consider the underlying legal argument tenable. Legal constraints do not disappear, and policy must still rest on a valid legal basis. What these reforms suggest is a greater willingness to tolerate legal risk in pursuit of policies that ministers consider strategically important.

This could be music to the ears of public law specialists wanting to contest government decision-making in the courts. A ministerial letter does not move the dial in terms of the validity of judicial review as a means to challenge decisions. If anything, buccaneering ministers could find themselves up in court more often than before.

This shift requires stakeholders to account for a wider range of outcomes, making scenario planning increasingly important. What happens if a policy advances quickly? What if it is subsequently challenged? What political, operational or reputational consequences could follow, and how should an organisation communicate with different stakeholders under each scenario? In this environment, close coordination between public affairs, strategic communications and legal advisers becomes crucial to effective navigation of the policy landscape.

Judicial review under fire (again)

The Government argues that the existing system can create disproportionate delay, especially for nationally significant infrastructure projects (NSIPs). Building on changes to the judicial review process from the Planning and Infrastructure Act, it intends to continue reforms limiting repeated challenges and to expand the range of projects able to benefit from parliamentary authorisation arrangements. The letter explains it intends to extend parliamentary authorisation to all nationally significant infrastructure projects, including transport and water, through the passage of necessary legislation.

Judicial review will remain an important legal safeguard, but the Government’s objective is clearly to make it a less powerful source of delay and tactical leverage. For stakeholders considering legal challenges, this may increase the importance of concentrating financial and legal capital behind cases with stronger prospects of success. For project proponents, a more streamlined judicial review process could provide greater certainty and reduce the ability of weak claims to hold up delivery and implementation.

Influencing policy in a new environment

Taken together, the three reforms reveal a significant shift in how the Government intends to operate. Arguing that procedural tradition and bureaucracy have frustrated delivery, the Burnham Government is signalling a preference for greater political decisiveness and more centralised decision-making.

The challenge for the Government will be balancing greater agility with the transparency, scrutiny and sector expertise needed to make effective policy decisions. For organisations engaging with government, the implication is clear: engagement will need to begin earlier and become more strategic. While stakeholders may previously have been able to wait for government to publish its seating plan before objecting to where they had been placed, under the new model the advantage lies in being someone the host calls while deciding who is invited to dinner in the first place.

The key lessons to note from this new approach to policymaking are that:

• The organisations best positioned to influence policy will be those that understand what is coming before it arrives, have built trusted relationships with the people shaping it and have established the credibility to be brought into the conversation early.
• The window for influence may be getting shorter, but the opportunity to shape policy has not shrunk or disappeared: it is just moving earlier.
• Effective public affairs and strategic communications advice therefore becomes even more important, helping organisations anticipate change, engage decision-makers at the right moment and ensure their voice is heard while policy is still taking shape.

Learn more about DRD’s public affairs and campaigns expertise here.