Friday 12 June 2020

Damned If You Do and Damned If You Don't: The Consultancy Racket

Like many academics Matron is forced by the rules of the Research Excellence Framework (REF) to show that her work has “impact”. Academic research, paid for by student fees and the tax payer, is no longer supposed to happen entirely inside the Ivory Tower (if it ever did). And she does not actually have an ideological problem with that in principle. Our work should benefit policymaking in the real world in a positive way. In fact, that is a large part of the reason why she became an academic. 

One way to show impact is through the provision of consultancy services to government agencies, businesses and even civil society organisations. For us lawyers, this usually involves reviewing current legal frameworks, evaluating ongoing organisational activities and priorities, or providing advice on upcoming policy decisions. In theory, consultants should provide an independent outside perspective that informs decision-making. But the practice is often different.

In many cases, this already becomes apparent during the tender process. Tender documents that speak of "agreed assumptions", that prevent publication without client approval and that subject your work to several rounds of internal consultation do not always absolutely restrict the academic consultant's independence. But they certainly raise red flags. In one recent tender interview for a review of the work of a civil society organisations, we were actually asked what we would do, if the organisation we reviewed did not agree with our recommendations. They may, of course have tried to test our willingness to stand up to internal meddling. But our response made it clear that we would try to resist that and we did not get the job. So maybe not.

Another tender (for the benchmarking of a national statutory framework against an international standard) we lost on price – to a city law firm whose normal billable hourly rate for one of their mid-level solicitors exceeds the daily rate that we had quoted. The work would have been one of those never-ending time sinks, where the actual time we would have spent would undoubtedly have vastly exceeded the days we had actually quoted. The only question here therefore is whether our competitor managed to pitch so low because they would put an intern on the job or because, as one of my potential collaborators put it, “they had skin in the game”.

And then there are the cases when you DO get the job but find out quickly that you are mainly there to add a layer of “independent verification” to conclusions that those who commissioned the project have already agreed on before the request for quotation was even published. A few years ago, a fairly large team at my University was asked to review the "trickle-down impact of legal instruments issued by a large international organisation over a 25-year period. The draft report we prepared went through innumerable rounds of internal consultations and departmental responses before it was finally deemed acceptable. By that point very few of our original conclusions survived unscathed. In fact, we were warned from the beginning that we would not exactly be popular with the organisation’s operational sections. Well, wasn’t that the truth? 

Often, “internal consultations” also provide the consultant with a rather alarming insight into how different parts of government interact. Like the time when the supposedly independent regulator asked for more time to respond to our draft because they were “coordinating their response” with the Ministry that funds them. Or the time we were told to make slight changes to our work “to keep so and so happy”. And we complied. 

Because if you don’t comply, there is a good chance that the report you worked on so hard - and for a fee vastly below your actual market rate - will never be published. Or, as one could observe most recently with regard to the government’s inquiry into the higher rate of BAME deaths from COVID-19, it will be published without your recommendations, which will have mysteriously vanished. Because if the government tells people that there aren’t any of those, then they will never have existed in the first place. The past is alterable. The past never has been altered. We have always been at war with Eastasia.

One problem with the system as it is currently run is that we, as academics, continue to play by those rules. Because we want to do the work. Either because it’s a nice bit of extra income for people who pay the standard 30-50% “but-you-get-to-do-a-job-you-love” salary deduction every month (hello social workers, nurses and teachers etc.). But more often we do it because we actually want our work to change things, to have “impact”. And because we absolutely know that if WE don’t do it, someone else will. And that someone might be even more mercenary or even just more pliable. It may be someone, who is only in it for the money and doesn’t care, or someone who uses their own commercial power to influence government decision-making. Or someone, who really just needs the job and isn’t in the economic position to walk away from it, just because they are asked to make a few changes to their conclusions. 

A few months ago, Matron was asked to work as a sub-contractor on a project for that big social media company, whose name she will not normally utter without swearing. It should have been an easy “you’ve got to be kidding me” response. But she actually thought about it for several days before declining the offer. Because the work would have involved advice on an area of law that, by happy coincidence, fell slap bang in the middle of her current line of research. In an ideal world it would have been a marvellous way to try and implement some of her suggestions in practice using a market-leading provider. How many of us would not be tempted by that possibility? How many of us can resist anything – except that kind of temptation?

But in this case Matron did resist it because she is absolutely certain that that particular client is beyond saving and that her work would have been exploited one way or the other, if not now, then later. What she did instead, for her sins, was to recommend a younger colleague with similar views and ethics, who she knew was in need of work and extra income. A coward’s way out, maybe, but at least one where there is a small chance that the work is done by someone with good intentions thus keeping other wolves, who would be only too happy to do the company’s bidding for a fee, from the door. Was it the right decision to just offload her own guilt onto someone else? Time will tell.

So, what should we do? How do we prevent the exploitation of our expertise for nefarious purposes? The easy answer is: together. Through refusing to give in to demands for changes we don't agree with, by insisting that independent reports are indeed independent and by ensuring that we have a right to publish our work, even if the client decides not to.

In practice, this is unlikely to happen because those who consistently try to defend their own values in that way are unlikely to be in the consultancy business for very long. Consultancy deals do not grow on trees. And the REF impact requirement makes it even harder to say no to the opportunities that do come along.

But maybe more of us should at least lift the cloak and speak out about what it is really like to take part in this racket. Share our experiences. Be vocal about them. Create a frickin hashtag. Whatever works.

And if any of us ever reach the big heights of fame, where our power matches theirs because, if we say something, people will listen, then we should definitely use that power.  Matron herself is nowhere near that pinnacle and the sad truth is that we are all of us replaceable in most cases. But many of us still have reasonably safe jobs, often at a well-regarded universities, with a salary that is maybe half of what we could earn in practice, but that still pays for a decent lifestyle. Everything else is a bonus. Maybe those of us, who are in that lucky position can afford to say no occasionally, remembering what we actually stand for. It's an idea worth thinking about at least.

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