Everyone now knows that the famous U-turn on Social care promised that a future Conservative Government will consult on the details. And that, hey presto, it will feature a cap on payments.

Note however, that what Theresa May and her colleagues have actually committed to is a ‘Green Paper’ – a part of our administrative system that is relatively rules-free. Recent Green Papers have indeed taken the form of a consultation, (including the impressive Green Paper on ‘Building our Industrial Strategy’ in January this year) but this is far from universal practice. The House of Commons Library confirmed to the Institute that “the term ‘green paper’ is used fairly loosely by government bodies and commentators. A single document may be described as a green paper, a discussion paper, a consultation document – by different people at different times.”

Years ago, a White Paper was a Government’s statement of its proposals. Green Papers were introduced as a more tentative outline of possible actions, usually as a basis for discussion. They were often used for policy kite-flying and sometimes, cynically, to pretend to consider political hot-potatoes without ever committing to do anything in practice. Over the years they became more likely to invite readers to comment, but not all contain clear proposals and many are in the vein of ‘Do you agree with us that it might be worth considering ….?’

 The danger is that a Green Paper might be an attempt to by-pass the strict rules of consultation – and, in particular the Gunning Principles, breach of which could be subject to challenge in Court. Remember that one of the easiest ways to lose a judicial review is to have pre-determined the decision; another potential pitfall is that a lawful consultation must provide sufficient information on the consultor’s proposals as to enable consultees to give them ‘intelligent consideration’.

In the case of the social care policy, a future Government would have to tread VERY carefully, for Ministers may well have made all kinds of statements during the Election that might compromise the consultation. It would need to publish undisputed financial projections of the impact of different levels of capping upon the finances of affected individuals and families. It would also need to publish robust ‘Equalities Analyses’ considering the likely impact on vulnerable groups and others – something very rarely done through a Green Paper.

Best of all would be to subject the Green Paper consultation to the thoroughness of a totally independent Consultation Institute Quality Assurance.

But then I would say that, wouldn’t I ?