Within weeks of publishing The Politics of Consultation, we have a great example of the issues that can arise. Equalities minister, Penny Mordaunt’s consultation on the Reform of the Gender Recognition Act closes today after a bitter and acrimonious row between those who characterise themselves as pro-transgender, and women’s rights/feminist activists who disagree with some of the Government’s proposals.

The last few days have seen rival newspaper advertisements pressing their case and the debate has seen an unusual degree of vehemence. Finally, this week, Members of Parliament began calling for the consultation to be withdrawn. David Davies, MP for Monmouthshire was among those who alleged that the exercise was “fundamentally flawed”. He was quite explicit, demanding that the consultation be thrown out and restarted once parliamentarians “have had a proper conversation with women’s groups about their rights to protection”.

It is by no means unusual to hear such sentiments. It is one of the more predictable of the political interventions we identify in anticipating the politics workshops for Institute clients planning controversial consultations. What the transgender issue demonstrates is the critical importance of the consultation ‘scope’. What one side of the argument sees as a simplification and burden-easing of existing law is seen by the other side as a fundamental policy change which would have required a much more wide-ranging dialogue. A legal challenge is more than a possibility, and may well focus on the adequacy or otherwise of the impact assessment that will underpin any decision. The published impact assessment which accompanied the consultation will certainly not be sufficient to prove that the Government will have met the Equality Act S.149 ‘due regard’ principle.

In fact, it is worth pausing at this point to reflect that much of the debate centres around different forecasts of the consequences of changing policy. What the Government has done is avoided making any attempt at an impact assessment at this stage. In its own words;

“It is therefore not possible to conduct a full impact assessment on what the changes to the Act will be, as they have not yet been decided.” (per Pre-Consultation Equality impact assessment for the Gender Recognition Act 2004 – Paragraph 3)

“A full cost/benefit impact assessment, along with other relevant tests, will be carried out once the Government makes a decision on what action to take, following the results from this consultation. This impact assessment will be published when the Government response to this consultation is published”. (per Page 4 of the consultation )

What this means is that the impact assessment – when it comes – will be when the Government has taken its decision, and will not be available to inform the debate and the consultation. Lawyers will surely seek to argue that this may invalidate such a decision.

The Government contends that an impact assessment cannot be prepared as it has no clear proposals in mind. Again, in a statement from the Equalities Office,

“This is an open consultation – we are not putting forward any specific proposals for how we want the system to change”

Yet in the Ministerial Foreword to the consultation, the Minister talks of being “conscious of concerns about the implications of our proposals.” Maybe they are ‘unspecific’ proposals?

Do such confusions – and some poor questioning which Barry Creasy (..the Institute’s expert Adviser on questionnaire design) has identified make this consultation fundamentally flawed?

Obviously without having been invited to undertake our thorough Quality Assurance process, we have to be cautious, and we hesitate to give a definitive answer. But, having examined the document and the questions, it appears to us a professionally-prepared and comprehensive consultation – and can certainly provide opponents to the Minister’s ideas with the opportunity to express their views.

Whether it was wise to have proceeded on such a narrow ‘scope’ is clearly a more contentious issue and may yet prove to be a thorny subject for ‘consideration period’ that will follow.

The Government must therefore publish its data analysis first – and allow people to see what has been said before proceeding to formulate its response. Failure to do this will open it up to criticism that it has not properly listened to informed debate and make an already-contentious issue even more difficult to manage.

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For further discussions in the institute’s workshop: Anticipating the Politics, please contact Karen Fourie karenf@consultationinstitute.org or 01767 318350.