Originally published 9 February 2015. This article is retained from the tCI archive. Law, policy or practice may have changed since publication.
The House of Lords Secondary Legislation Scrutiny Committee is probably not the best-known body in Parliament. But it is the one group of Parliamentarians collectively tackling some of the issues arising from the Government’s peremptory changes to the Consultation Code of Practice in 2012.
Just to refresh memories, the 2008 Code of Practice, widely regarded as a solid set of rules for Government consultations was, overnight, replaced by a woolly set of Principles including abandoning (at least in part) the long-established ’12-week’ recommended timescale. In response to criticism it set up a working committee and in October 2013, made some small improvements, but nothing of any significance. The Committee was not persuaded and said that “Even after revision, we felt that the principles showed too little progress towards an approach to consultation which effectively balanced the interests of the Government with those of stakeholders in civil society generally.”
Two weeks ago, the Committee published its latest Report on the subject. Its members include real administrative heavyweights like Lord Bichard (ex Permanent Secretary at the Departments of Employment and Education) and it is clear that he and others are far from satisfied. It records that in the first six months of 2012, there were 179 consultations lasting on average 10.5 weeks. For 2014, the comparable figures were over 300 consultations lasting on average 7.6 weeks. In other words, the number of consultations has risen by two thirds, but the time allowed for responses has fallen by one third. So is this Whitehall improving its productivity, or are stakeholders being short-changed?
What the Committee actually did was examine a range of Regulations (ie Secondary legislation) that should have been subject to consultation. It found a catalogue of problems. Some concerned the practice of issuing consultations over the holiday periods, but they also felt that Departments were not always clear enough in what was being proposed, nor consistent in reporting consultation feedback in a timely and honest way. Here are just a few examples:-
Draft Conduct of Employment Agencies … Regulations, consulted over a five-week period 27 July – 10 September 2012
“…it was bad practice to arrange consultation over a holiday period, since it served the interests of the Government rather than those of the organisations and individuals likely to be affected by the legislation”
Education (independent School Standards) … Regulations, consulted over a six-week period 23 June – 4 August 2013
“…we noted the statement by the DfE that much of the opposition to the changes in the Regulations was based on a misunderstanding… the speed with which the Department had taken the changes forward was unlikely to have helped respondents gain a clear understanding”
School Premises (England) Regulations 2012, commenting on how the consultation was reported to Parliament
“…while a majority of respondents had opposed the DfE’s proposals on outdoor space, this had not been mentioned in the Explanatory Memorandum, which spoke of broad support for simplifying the Regulations.”
Draft Electricity & Gas (Energy Companies obligation) Order 2014.
“…..the information presented did not demonstrate that such consumers explicitly agreed with the steps proposed, and we were concerned that the Department’s approach ran the risk of discrediting the process of consultation ”
In the most superbly ironic example, the Committee mention the Local Government (Transparency Requirements) Regulations 2014. The consultation attracted 219 responses, with 91 expressing opposition to the use of Regulations. These were dismissed by the Department as including many from Councils “who would naturally tend to be against regulation.” It then went on to assume that of the 113 respondents who did not specifically express a view on the use of Regulations (as opposed to their content), were on the Government side of the argument. It comments …”that this interpretation nicely supported a pre-determined intention, but did not indicate a Department open to differing views.”
Now no-one is suggesting that Governments regularly break the rules of data interpretation. And although some of the Committee’s examples would have been very vulnerable had they been challenged in the Courts, this surely only applies to a minority of consultations. The real issue is that no-one knows, because the Cabinet Office does not monitor compliance with its own Principles. The National Audit Office has noted the same failure. For the second time in three years it has examined the Government’s implementation of the National Compact, looking specifically at adherence to the 12 week rule (which still applies to consultations affecting the voluntary and community sector) and concluded that “most departments did not have arrangements for monitoring and reporting the length of consultations.”
The Lords Scrutiny Committee recommends that the Cabinet Office takes a stronger role, and should produce an annual report. But far more is needed. Failure to observe its own (loose) standards is a clear reason why we have so many applications for Judicial Reviews, and it is time to address the problem. The Institute is preparing a proposal which will form part of its Manifesto to be tabled to all the political parties in a month’s time. Join the debate – and watch this space.
TRIGGER POINTS
- The House of Lords Secondary Legislation Scrutiny Committee’s 22nd Report for the 2014-2015 Session is called “Inquiry into Government Practice” and was published on 23rd January 2015 as HL Paper 98.
- The National Audit Office published its Report Central Government’s implementation of the National Compact; a follow-up” on 6th January 2015
- If you have experience of Government consultations – good or bad, and wish to share them, please use our LinkedIn page.
- Members and friends wishing to contribute to the Institute’s proposals to be contained in the Manifesto for political parties are welcome to contact Remmert Keijzer on 01767 318350 or email hello@consultationinstitute.org
This is the 272nd Tuesday Topic; a full list of subjects covered is available for Institute members and is a valuable resource covering so many aspects of consultation and engagement.