Community Empowerment (Scotland) Act 2015 - participation requests: evaluation

5. Implementation of participation requests

This section focuses on the implementation of participation requests, considering whether, how and to what extent Part 3 of the Act is being implemented as intended in the legislation and the Scottish Government Guidance on participation requests (2017). Specifically, this section considers progress made and challenges faced by public service authorities when implementing the Act. Finally, this section considers actions taken by public service authorities to promote awareness of participation requests and to provide support to communities wishing to submit participation requests, with particular emphasis on disadvantaged groups.

5.1. Processes within public service authorities

Across the public service authorities interviewed, a similar participation request process has been implemented, in line with the Scottish Government Guidance on participation requests (2017). Policies make clear reference to assessment criteria, timescales, and many list the possible outcomes to which a community might contribute through participation request, including economic development, regeneration, public health, social wellbeing, environmental wellbeing and reduction of inequalities.

Public service authority stakeholders described the process behind participation request submissions, and particularly the importance of having a key contact person within the public service authority, who receives a participation request and forwards it to relevant teams to action. Key contacts should have a full understanding of the legislation and process, acting as an adviser to all parts of the public service authority. For example:

"When someone makes an electronic request even for information and so on, this is something we're reviewing, we are tending to say, 'Right, that subject or topic is around a certain service area, it falls within…', whatever it may be, parks, it may be planning, it could be whatever area within the whole organisation. My role at the moment is to make sure that the liaison and the information and the (Scottish Government) Guidance around what we can or can't do, according to the legislation, is adhered to." (PSA 4)

In most cases, the key contact person also offers support and advice to the service areas and ensures that the timescales outlined in the legislation are adhered to.

Whilst public service authorities had put processes in place and could demonstrate an understanding of the requirements of the legislation, there was a significant discussion of the need to encourage informal dialogue between public service authorities and communities prior to a formal participation request application. Reasons for pursuing this approach related to public service authorities' desire to find alternative – and possibly more suitable – existing participation processes.

At the time of interviewing, one of the public service authority stakeholders was undertaking a review of the participation request process and procedures that have been put in place within the public service authority. The review enabled a process of reflection with regards to introducing a provision for early discussions and/or expressions of interest to highlight less formal participation processes:

"In terms of going forward with this [participation request process], I'm encouraging us when we go to review our process, it'll need to go to committees and so on, but I want to try and encourage an informal dialogue." (PSA 4)

Some public service authorities have included a pre-application stage as a formal part of the process, and they use this stage to encourage communities to pursue alternative approaches to participation. This reflects a desire among some public service authorities to pursue alternative routes through which communities can attain desired outcomes:

"The initial invitation is to a conversation, and what the elected members at committee had said was, 'If we can resolve things and we can talk to people and get our directorates working in their direction without having to go down a more formal route, that's what we would do.'" (PSA 3)

5.2. Interpretation of legislation: understanding participation requests as a participatory mechanism

The Scottish Government Guidance on participation requests (2017) states that participation requests are considered an 'opportunity for communities to establish formal dialogue with public service authorities'. In practice, how participation requests have been interpreted varies between public service authorities and community groups.

Given their existing relationships and related processes^[16] with their communities, some public service authorities struggle to see the added value in the introduction of participation requests. Two public service authorities in the sample, which had not received any participation requests, argued that the principles of participation requests were already embedded throughout their working practice. While the Guidance (2017) states that participation requests should not replace existing practices of participation, another public service authority (PSA 8) viewed Part 3 of the Act as unnecessary 'prescriptive legislation'.

From the perspective of some public service authorities, receiving participation requests represents a failure in the existing systems, approaches and processes designed to enable dialogue between the public sector and communities. As a result, the intention of some public service authorities was to limit or maintain low levels of participation request submissions, arguing that low participation request submission rates indicate community satisfaction in existing community engagement systems. In discussing the rationale behind minimising participation request applications – as stated in their participation request annual report – some interviewees stated:

"We felt it was probably quite a bold statement to put in that report saying that we aim to minimise because that's possibly not what the government wants to hear but our rationale was sufficiently strong…It isn't an idea as much as who we are. The personality of the council and the CPP and how we work, to be honest, is challenged by the idea of participation requests being something that lands on us from a distance and which are not something that we're already aware of and don't form part of the fabric of our relationship with our community organisations." (PSA 2)

"I would class it as failure in my view if I got a formal request for participation… Many of my colleagues within [public service authority] would feel they have failed if they ever got a formal participation [request] because… we should have anticipated participating with these stakeholders or if they had an idea that we hadn't thought about – and that's perfectly foreseeable – that they hadn't picked up the phone to say, 'Hello, would you help me? I'd like to do X.'" (PSA 7)

"I've heard people from the mostly local authorities say, 'If we get a participation request it shows we're not doing our job properly'. They use the 'sign of failure' expression a few times." (Key Stakeholder)

The minimisation of participation requests may be a valid position if existing processes meet community needs. However, some community groups feel that public service authorities disregard or overlook their attempts to engage with decision-makers, and in this context participation requests represent a legitimising route. This also relates to the promotion of participation requests presented at Section 4.3.2: the active promotion of participation requests is crucial in raising awareness among community groups who feel compelled to pursue a formal path to participation.

As reported in an interview with a community group, there are also challenges associated with how the interpretation or impact measurement of the legislation is understood:

"We had an event in [community] actually organised by one of the MPs, [name], and someone from the government came and spoke about community empowerment, spoke about participation requests, and I actually asked the question, 'could they tell me, or the government tell me 'what is the measure of success when it comes to participation requests?', and he actually said, 'Well, if there's none.''" (CG 8)

Challenges associated with quantifying the outcomes and successes of participation request processes are echoed in some of the annual participation request reports submitted in 2018-2019. One public service authority report stated that the establishment of an improvement process, which follows an agreed participation request, would be viewed as a 'failure of our support to communities and our Local Community Planning structures'. Further to this, another public service authority report states that the reason there have been no participation requests is due to the success of other participatory mechanisms and another public service authority highlights that the need for a formal approach such as participation requests should be the 'exception rather than the rule'.

The interviewees highlighted that community and public service authority perspectives on effective community engagement may not be well aligned. A representative of a community group noted that, while the public service authority takes pride in their 'super-duper' systems that are in place (CG 7) to enable participation processes, this opinion may not be widely shared:

"It's like the emperor's new clothes… they're saying, 'Look at this fabulous shiny participation process we've got and isn't it wonderful', and we're saying, 'It's not working. Therefore, here's something you can wear', and they're going, 'But I don't need anything because this is what I've got, it's great.'" (CG 7)

The same participant felt that community members make council officers' lives 'difficult' because 'they're getting a hard time from their seniors about us submitting participation requests':

"I'm saying, 'Just put in a participation request', the local authority are anxious. Their body language, their language, 'You don't need to do that, you don't need to do that' … they're going to take pride in having no participation requests because that proves how great their processes are." (CG 7)

The representative of CG 7 supports participation request policy and legislation, although not necessarily how it has been interpreted by their public service authority, which works to reduce participation requests. CG 7 noted that the public service authority's intention to minimise participation requests may negatively affect the morale of community groups and discourage participation:

"It could be a disempowering process and actually have negative consequences on the groups or individuals who are trying to raise [participation requests]." (CG 7)

A further perspective surrounds the apparent 'clout' participation requests provide: some community groups in the sample interpret participation requests as a mechanism through which community requests gain legitimacy – public service authorities are not able to overlook or dismiss submitted participation requests, given the formal process. As identified by one public service authority:

"It's good from a community group perspective. They've got that formal piece of legislation to say: 'Well, you can't ignore me, Mr. Council'." (PSA 5)

This perspective of 'additional community power' was echoed by a number of community groups, particularly those in areas where it was felt that public service authorities were failing to actively involve local communities in addressing problems or developing solutions:

"We have now got a legitimate entry to discussions, and in that sense it is hugely important for us… So, in our case it's a crutch, it's a legal crutch that we'll bash over their heads if we don't get what we want." (CPB 5)

Given that some public service authorities interpret participation request submissions as both prescriptive legislation and representative of systems failure, while community groups interpret participation requests as a positive legitimising mechanism, there may be further work required to ensure that the policy intent of participation requests is made clearer to all public service authorities, and particularly those focused on minimising participation requests. This perception has the potential to create environments where participation requests are more likely to be refused, or not submitted - outcomes contrary to the intention of the Act, and may limit the intended outcomes which include public service authority culture change and improved relationships between communities and public service authorities.

5.3. An appeal mechanism – public service authority and community participation body considerations

Part 3 of the Act does not currently provide a mechanism for appeal for the decision of a public service authority to refuse a participation request. At Section 3.102 in the Scottish Government Guidance on participation requests (2017), it is made clear that by April 2020, Scottish Ministers must report on the operations of participation requests and consider the possible need for an appeal or a review process. The lack of an appeal process in Part 3 of the Act was raised by some interviewees – both public service authorities and community groups. For some participants, who had wider knowledge of the Community Empowerment (Scotland) Act, comparisons were made with the appeal mechanism for asset transfer requests (Part 5 of the Act):

"The way it was set up, it doesn't have an appeals thing, it doesn't have… there's no appeal to the Scottish Ministers, for example… I don't see why, when they set it up, they didn't make a community asset transfer and participation request exactly the same." (PSA 3)

There is potential for the absence of an appeal mechanism to undermine the rationale behind Part 3, as public service authorities can refuse participation based on loosely and locally defined criteria. Considering that participation requests can be refused if there are 'reasonable grounds' to do so^[17], currently public service authorities retain power over the process:

"(Part 3 is) an essential bit of policy for us because it gives us a way for them to pay attention and have rules that they need to abide by… but obviously none of that matters if they can get away with just not validating it." (CG 7, operating under a public service authority working to minimise participation requests)

It is because of the absence of an appeal process, that some public service authority and community interviewees described participation requests as 'worthless' or 'lacking teeth':

"The participation requests need to have some… they're worthless if you can just keep not addressing them at a local authority level." (CG 7)

Despite the absence of an appeal mechanism, two community participation bodies noted that if their participation requests were rejected, they would seek dialogue with the Scottish Government or a public service authority Executive Director anyway, to commence a form of informal appeal process.

"It's no good putting a good idea on paper if they don't support it… if [public service authority] had refused our request, we would have gone straight to the Scottish Government and said, 'Your law is not being observed', and see what would happen. So, they need to monitor that just a little bit more closely." (CG 8)

Further consideration of an appeal mechanism is given in Section Ten – Recommendations.

5.4. Awareness raising and support for participation requests

The Scottish Government Guidance on participation requests (2017) states that public service authorities have a responsibility to promote participation requests. At present, public service authorities have a duty to promote participation requests through a website (specific website locations differ between public service authorities) and social media channels. The Guidance also recommends that public service authorities take additional steps to promote participation requests, including the appointment of a point of contact, the use of a range of communication channels and making particular efforts to promote participation requests to more marginalised and disadvantaged communities.

In 2017-2018, public service authorities promoted participation requests through different pathways (Table 7). During this period, information provided online was the most common method of participation request promotion. Twenty-seven public service authorities also identified first points of contact for participation requests on their websites. Many reports made reference to the Guidance document and public service authority procedures and policy documents. Nine public service authorities reported delivering external information events to promote awareness of participation requests. Examples of these events included presentations at Community Planning events and co-hosted events with third sector agencies. Five public service authorities noted the events and activities they had organised to promote awareness of participation requests internally. Examples included delivering briefings to elected members and Community Planning Partners and holding training seminars and workshops for council officers.

Table 7 Types of promotion activity – 2017-2018 and 2018-2019

	Number of public service authorities reporting
Promotion activity	2017-2018	2018-2019
Website	30	15
First point of contact for participation requests	27	7
Internal training for public service authority staff	-	5
External information events	9	2
Internal information events	5	2
External training for community members	-	1

Across the 29 formal reports submitted for the period 2018-2019, 26 included limited qualitative data related to activities supporting participation requests by and within public service authorities; in comparison with 2017-2018, the level of detail provided in terms of promotion reduced significantly. The reduction in the number of public service authorities reporting promotional activity does not necessarily indicate a reduction in activities. The various pathways for promotion and support in 2018-2019 are identified in Table 7.

In 2018-2019, online information appeared to be the most common form of promotion and support activity (websites providing links to the Scottish Government Guidance on participation requests (2017), procedures and policies specific to the public service authority and links to support and information offered by Scottish Community Development Centre). The second most commonly reported activity was the inclusion of a named first point of contact, with seven public service authorities using this method to promote participation requests.

Examples of external information events to promote awareness of participation requests included co-hosted events with third sector interfaces; and co-hosted events with the Scottish Community Development Centre. Examples of internal information events included regular briefings for elected members; and regular briefings with relevant council officers and members of staff. Alongside specific information and awareness raising there were six public service authorities which stated that they had held training events (either external or internal). Examples included an e-learning module for citizens; training for elected members; and training for specific staff including community planning partners and senior management teams. During an interview, one public service authority highlighted the possibility of a wider, national campaign to raise awareness of the Act, arguing that they felt there would be value in such a campaign.

While all public service authorities in the sample had listed participation requests on their website, some conceded that they have not been overly active in specifically promoting participation requests to the wider public.

"We are compliant and we don't want to shoot ourselves in the foot but… I wouldn't say we're overly aggressive in going out there. It is on our website." (PSA 8)

"[We] haven't done anything particularly proactive… yes, we could be accused of not promoting it." (PSA 7)

Some interviewees felt that participation requests had not been submitted due to lack of promotion by the public service authority. Often, poor promotion was linked to financial and time pressures and priorities faced by public service authorities who had no resources to promote the new policy. Some public service authorities suggested that participation requests are viewed as an additional burden for public service authority personnel. Two public service authorities highlighted the context of reducing staff, combined with increasing pressures and responsibilities to process participation requests:

"It's challenging because it's coming in at a time where you are reducing staff constantly. Parks resources have reduced by 75% in the last 10 years… That's similar to probably all local authorities across the UK so, therefore, when you've got someone coming in saying, 'you can manage parks in a better way', that's great, but you need that resource and that officer's time to actually physically go and sit down and look at that idea and work that through. That's just across the board. You'll get that with every service department to say, 'Who's actually going to do this? Who's going to do the work? Who's going to sit down and work through and cost up the model and look at the legislation that's required behind it and stuff like that?'. There is that additional burden that's on the local authority and the officers' time to actually work through the idea." (PSA 5)

"For us to be able to do it in this backdrop of less and less people and more and more pressure. For instance, if I phone a housing officer and I ask them to help me with something that's to do with participation request, they're more likely to say, 'look, I haven't got any time in the day to do what I'm already doing'... It's tighter than it's ever been. I notice it's tighter in those areas, like in the localities where they have much less staff and they struggle sometimes to do all the workload… they'll sometimes say, 'This isn't as important to us as what it maybe seems to you'." (PSA 4)

5.5. Equalities and disadvantaged groups

Myers et al. (2017) suggest that there is potential for participation requests to exacerbate inequalities, for example if more advantaged groups or communities make greater use of the legislation. As such, the Scottish Government is interested to explore the effect of participation requests on inequalities and, in particular, to understand whether, how and to what extent participation requests may address or exacerbate inequalities. It is important to note that, in addition to this evaluation, the Scottish Government has commissioned additional work aimed at tackling concerns around participation requests and inequalities^[18]. The Scottish Government Guidance on participation requests (2017) highlights a range of activities that may be required to promote participation requests to specific groups with protected characteristics and 'disadvantaged and marginalised groups' more broadly.

In the period 2017-2018, no public service authority annual reports made reference to disadvantaged or marginalised groups. In 2018-2019, only two annual reports made reference to these specific groups. One public service authority noted that they had discussed participation requests with organisations representing various equalities groups and that they would continue to 'review how to better tailor support for more marginalised groups'. A second public service authority highlighted that a process had been established to monitor and analyse participation request submissions from an equalities perspective in order to be 'fully aware of any underrepresentation from protected characteristics groups and [so we] can work with partners to ensure that we increase focus on opening up channels to maximise opportunities for participation.' Although the two public service authorities highlighted that they would seek to ensure that the participation request process and related materials were simple and accessible, it was not clear how this would be achieved.

Some public service authorities included the publication of leaflets and posters as part of their promotion activity. This is one of the suggestions made within the Scottish Government Guidance on participation requests (2017) to help reach groups who have less access to digital technology. However, other suggestions from the Guidance, including translation of materials, accessible venues and interpreters, were not mentioned in any of the reports. Interviews with community participation bodies indicated that they became aware of participation requests through a number of mechanisms including local MSPs, community council meetings, public service authority weekly bulletins, personal contacts and national press coverage following the launch of the Act. Interestingly, while public service authorities' approach to raising awareness is currently focused on listing information online, none of the community participation bodies indicated that they were initially made aware of participation requests through public service authority websites.