Another week, another scandal breaking too late for me to try and find a consultation angle. Ah well, can’t have everything. So, outside the lurid details, what else has been going on? Well for, I think, the first time, we have the same issue being represented across two legislatures…

Westminster

A relatively quiet consultation week in Westminster this week but I’m sure we can tease something out of the House of Lords’ debate on the Environment Bill. One of the things we have seen courts looking at a bit more often in recent times is the question of who should be consulted. We saw it in the last year in the Article 39 case, where the Court decided that even under pandemic circumstances the Government should have consulted on changes to adoption and children’s social care regulation with representatives of those children and not just care providers.

The question of who to consult is an interesting one. Naturally, being good consultors we should know that picking and choosing consultees is not a fair way of running a consultation, something that has been asserted many times over the years in Court cases. When statutory consultation duties arise, they often use the formula “the SoS [or other decision-maker] shall consult whomever they think appropriate”, a phrase which gives considerable (albeit not unrestrained) leeway to the decision-maker to choose.

But in light of cases such as Article 39, where the Government have carefully chosen their consultees, are we beginning to see a little parliamentary anxiety about leaving it entirely in the hands of decision-makers? This week an amendment was proposed to the Environment Bill that would require the Government to seek advice from the new Office of Environmental Protection on who to consult before setting environmental targets.

It’s not the first time that we’ve seen attempts to specify consultees. Last week, we wrote about the Professional Qualifications Bill, where there were similar efforts to ensure that the Government consulted the right people, including specifying particular consultees. Concerns were raised about the Finance Bill that the Government was mostly consulting stakeholders whose mindset was close to that of the Treasury. These are but three examples of something that seems to be rising to the minds of legislators more and more.

It is of course unlikely that any Government would ever accept an amendment mandating a list of consultees, Governments don’t like to have their hands tied in such a way, but might the fact that it is being raised more frequently start to softly move the dial in favour of lists of mandatory stakeholders to be consulted, with the “whomever else they think appropriate” formulation being added on at the end? It’s certainly plausible, and in a lot of areas would give a lot more certainty to stakeholders that their interests were likely to be properly considered.

Scotland

Curiously, and I do not propose to dwell on it too long as we have already covered the substance of it, the same argument from Westminster also came up in the Scottish Parliament this week. In the Scottish case, it arose in the debate over the extension of the emergency coronavirus powers granted to the Scottish Government at the beginning of the pandemic. This time, it was two Labour amendments requiring consultation firstly with private bus companies and local authorities on the potential of regional franchising as a condition of further financial support, and secondly requiring consultation with businesses receiving support on increasing trade union recognition. It’s rare that we get a double bill of issues in the UK Parliament and the devolved nations, but it does make the point rather well that this is increasingly an issue.