On Tuesday, the Department of International Trade announced what it called the ‘Temporary tariff regime for a no deal Brexit ’. It was a major news story and was carried on all the media channels. The CBI’s Carolyn Fairbairn was soon on the radio, commenting  –

“What we are hearing is the biggest change in terms of trade … since the mid-19th century being imposed on this country with no consultation with business, no time to prepare,”

Ministers apparently were quoted as stating that the issues were ‘too sensitive’ for a consultation.

Of course, the defeat of the no-deal scenario makes these tariffs rather academic. But apart from giving the business community a very nasty jolt, the tale of tariffs raises interesting issues about the ability to minimise consultation on certain occasions.

It is not the only recent kerfuffle. The Good Law Project is currently before the High Court arguing that the Government rushed through a set of Serious Shortage Protocols enabling pharmacists legally to substitute alternative drugs if the supply of medicines were affected by BREXIT. It complains that they were introduced following a derisory one-week consultation in December and is seeking a ruling that this was unlawful.

So, are there circumstances where something is such a hot potato that a consultation would be inappropriate? Can issues be too sensitive for a public dialogue?

Traditionally, policy matters that might be market-sensitive were kept as far as possible behind closed doors. But times have changed. Transparency in Regulation means that OFCOM, or OFWAT or OFGEM and all the other OFFs (and near-OFFs) are constantly consulting on areas that can affect the share performance of key players. There was another category of issues close to national security or the defence forces that might also have been restricted. Foreign trade is a sensitive subject – and we recently noted the long wait whilst  the Department of International Trade publishes the output of its recent consultations on trade with Australia, New Zealand and other countries.

There is more. We once had a culture of not wishing to come clean about bad news such as hospital or school closures … especially if they were only at the options assessment stage. Why make people worried by putting a potential closure of a cherished service on the table, when maybe it won’t happen anyway? Such patronising feigned-concern for consultees has even extended to route selections for road and rail, on the grounds that the mere possibility of bad news can cause planning blight, affect communities’ self-confidence or, horror-of-horrors, affect house prices.

Generally speaking, the trend towards transparency has gradually seen the demise of these practices, and even in the case of tariffs this week, the Government slipped in the following reassurance:-

“It would apply for up to 12 months while a full consultation and review on a permanent approach to tariffs is undertaken.”

No doubt this is because there are winners and losers, and over a longer timescale it will be possible to give each industry an opportunity to state its case. This time around, is it possible that only those with an inside-track to the key officials were heard?

But, is it possible that the truth is rather different?

‘Sensitive’ is maybe the wrong word. ‘Inconvenient’ is probably more accurate.

For Governments know that to be lawful, consultations need to conform to the Gunning Principle, the third of which is that consultees are given enough time to consider the consultor’s proposals. What’s happened here is that the BREXIT panic has left Whitehall without the remotest chance of building enough time into its policy-making to allow a proper consultation with those who are affected. The Serious Shortage Protocols case illustrates it perfectly. The only difference with the tariffs schedule is that in the former case, they tried to consult – albeit for a week only; in the case of tariffs, they never even tried.

As we observed in The Politics of Consultation, there are regular situations where policy positions have to react quickly to changing events, and politicians and civil servants need some flexibility lest consultation rules become a disincentive to public engagement. And clearly, we live in extraordinary times, where the luxury of extended timescales is rare.

But that is not a case for a free-for-all with different Government departments making up the rules as they go along. Neither is it feasible to rush to the Courts whenever someone feels aggrieved, as in the Good Law Project’s tactics. The costs, delays and sheer unpredictability of Court cases makes it a poor form of redress.

Instead we need an independent body with authority – maybe an Office of Public Engagement– that can develop the right guidance and enforce them. Or perhaps an Ombudsman? In the book, we consider the relative merits of these mechanisms. In the meantime, however, stand by for an increasing number of situations where the consultation you expect never quite happens.

At least the Consultation Institute will be there – to monitor, and cry foul if necessary.

Note:

The Gunning Principles feature in depth in the Institute’s Law of Consultation training course. Next dates are 27^thMarch in York and 8^thMay in London