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Due and better process- the post-covid return to normality

This morning’s Guardian carried an interesting comment piece from Sir Jonathan Jones QC, the former Treasury Solicitor who resigned after disagreeing with the Attorney-General about the Government’s plan to give ministers the power to breach international law during the Brexit negotiations at the end of last year. Sir Jonathan’s article argued that the decision-making and legislating approach during covid should not become a ‘template for the future’.

Throughout the coronavirus crisis, different institutions have adapted to the need to act quickly and revise existing practices for a less personally connected and more illiberal world. For the Government, this has meant ministers exercising enormous powers with little public consultation or parliamentary scrutiny. For consultors, it has meant coming up with fresh solutions for both new and old problems.

In public consultation, we’ve been mercifully blessed with court judgments telling us the legal proprieties of consulting during the pandemic (Article 39, Shaw, Rights:Community:Action etc). These have demonstrated that even when a shorter or less formal consultation is necessary, the basic principles of the law must all still be adhered to.

But what about after the crisis? Is there a risk of the new shorter consultations being done during covid being continued on the basis that we have now shown that we can? It’s possible, and it’s likely to become a significant concern. We’ve already seen elements of it, particularly with regard to low-traffic neighbourhoods and highways alterations- complaints that councils are using temporary measures to introduce ‘stealth changes’.

As a general rule, the temptation to ‘try it on’ should be avoided diligently. The courts made it quite clear in the aforementioned judgments that the more limited consultations were permitted only because we exist in emergency circumstances. It’s likely that the courts would take a very dim view of consultors attempting to evade the thorough consultation that would in normal times be expected. In this regard, Sir Jonathan’s point about the need to return to normality is equally valid and applies to consultation too.

Government by fiat in a democracy is almost entirely a universal ill, the only major demonstrable advantage being that it can mean decisions are put in place more quickly. Against this stands an increased likelihood of poor decision-making, a lack of democratic input, a tendency to exacerbate the worst instincts of any given government and the concentration of power in the hands of the individual. This represents a fundamental part of the difference between democracies and autarchies. Dictatorships are efficient in terms of the time taken to make decisions, but the decisions may well not be the right ones. Democracies are the other way round. You are more likely to get a good decision, but it will take longer.

The same applies of course to consultation at lower levels of administration- it’s a significant reason why we do it. But there is a difference. During the pandemic, ministerial decision-making using emergency powers has become almost a rote thing. Ministers technically have those emergency powers (or have been granted them), so they use them, without thinking through the moral rectitude of it, how it affects public perceptions of the rule of law, or often without fully thinking through the potential impacts of the policies they are implementing. As there is little definitive statement of how ministers should exercise their powers, it’s significantly more difficult for them to be challenged.

For lower-level consultors, this laissez-faire approach has not been possible. They still labour under their regular obligations under the law, and though some of the statutory burdens might have been somewhat eased by the issuing of new temporary guidance or regulations, the common law obligations have not. Their decisions have arguably more direct impact on individual lives, so they are more likely to fall under legal challenge. Equally, many non-ministerial consultors are significantly closer to their communities, so the political consequences of failure are potentially more severe.

In many ways, this key difference has led to great things. Throughout the pandemic, we have been continually impressed with consultors taking novel approaches to continuing their work, and this is the crux of the matter. For both ministers and lower-level decision-makers, there is a pressing need that as soon as we are able to we should get back to the normal processes of consultation and scrutiny. But whereas for ministers there are few procedural lessons that can be taken from this, for other consulting public bodies what continues to be an intensely challenging time could also be a time that triggers great advantage.

For the everyday non-ministerial decision maker, though we must aim to return to normal, we should also look to crystallise and take appropriate measures to retain the lessons we have learnt during this period. We should try and maintain the innovative spirit that has borne fruit in trying times. We should continue pursuing new technologies and renewing our commitment to more traditional methods as and when they are appropriate. And we should remember that the pandemic has highlighted under-represented groups and seek to improve our engagement with them. We should not let these tragic times go to waste. Now may be the time to start thinking about how you want to maintain improvements into the future, and to collect the good ideas and work on them. Here at the Institute, we look forward to walking that journey with you.

About the Author

Stephen serves as the Institute’s Legal and Parliamentary Officer. Before joining the Institute Stephen studied Law at Bangor University and pursued a Masters’ degree in Aviation and Space Law at McGill University in Montreal. After this, he returned to London and was called to the bar in 2016 at the Honorable Society of Gray’s Inn, before deciding not to go into practice and move towards public policy work instead. Within the Institute, Stephen provides legal, political and policy analysis of UK and global current affairs of interest to consultors and consultees.

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