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The Week in Parliament

This week’s ‘The Week in Parliament’ might better be titled ‘The Week out of Parliament’, as Parliament is going to feature remarkably little, primarily because of the parliamentary recess. But also, because I want to talk about That Story. You know the one I’m talking about. Now I want to make it clear, that I will not be commenting on the substance or veracity of the story here. It is neither the venue for such things, or even necessary to examine the point I actually want to discuss. And there is certainly no need for you to hear about my preferred method of testing my eyesight- Grouse shooting on the moors with Tobes, Harry and Dickie (RIP).

No, what I want to talk about is the relationship between the story and consultation. But what relationship, does such a story have with consultation? Surely it’s nothing to do with it. Actually, I would postulate that there are many connections between the two. Some of them are jurisprudential points about the importance of the rule of law and democratic principles. Others are about public perceptions and the importance of transparency (which we have written about here) . But the one I want to focus on here is one of the key issues of both consultation and politics more generally. Trust.

There are many reasons we consult. To make better decisions. To give the public a voice. One of the other reasons is to maintain public trust. It is a fundamental principle of politics that the public must have some degree of trust in the system, if not necessarily in those in government. The same extends to the law. Even if people do not agree with the rules, they find it much easier to comply with rules if they have trust in the system that produced them, and a key way of enhancing trust is giving people input.

Whether or not the story that broke over the weekend was accurate, it is an unfortunate truth that it has damaged public confidence. The Government now, has less ground to claim the moral argument in its administration of the regulations and we have already started to see anecdotal reports from police officers of people refusing to obey the rules, on the basis of their own perceptions of the story.

In many ways, this is a demonstration of why consultation is important. The regulations we currently live under were imposed without consultation and with minimal parliamentary scrutiny I do not mean to criticise this of course; I have little doubt that doing so saved many lives. But without the backing of proper scrutiny, there was already the risk that after the initial phases of the emergency had been dealt with, people would start to chafe against them, that the trust they had that it was the right thing to do would start to erode. Such perceptions are only enhanced by stories such as the Dominic Cummings saga, which serve to increase suspicions that the rules are not being applied evenly or fairly.

For consultors ensuring that your consultation is seen as trustworthy is a vital part. If doubts arise as to the ‘soundness’ of your consultation, at best there will be low-level criticism of the final decision on the basis of unaddressed suspicions about motives, and at worst, you may be called to answer for your decisions in a JR. Expending goodwill, and the willingness of the public to give the benefit of the doubt to decisions made without consultation and scrutiny is a dangerous thing, particularly when it is done in a very targeted way and in a highly polarised environment where half of the stakeholders are not predisposed to trust the decision-maker at any rate.

So what effects will this have going forward? Well as I mentioned, we have already started to see anecdotal evidence coming in of rule-breaking, and the feeling of it being ‘one rule for them- one rule for us’ has been pushed in certain segments of the media already. Whether this has the same traction as the rest of the story seems to have had remains to be seen, but from our perspective it enhances the need for the consultative approach to the regulations going forward that we advocated in Briefing Paper 38. The Government has lost a lot of trust in both itself and the regulations over the last few days, and people will not forget that the regulations that were imposed without engagement, which many have found difficult to comply with for one reason or another, have now turned out to be (in the eyes of the Government at least) significantly more flexible than the original public messaging suggested.*

Rebuilding this trust will not be easy for the Government, and may indeed be impossible, depending on the more long-term effects of the shifting messaging. One of the best methods they could use to try and recover what they can would be ensuring that as the regulations are reviewed and monitored to ensure their continued suitability, they are consulted on, and the public is properly engaged in their development. If the public feel that they have had the opportunity to contribute to this endeavour, then they are likely to find it easier to comply with all the public health benefits that that entails.

*I feel I should add here that all the regulations should continue to be followed both in their letter and spirit, and that ministerial statements do not in and of themselves change the law.

As always, if you have any questions, or if you would like an explanation of the joke at the end of the first paragraph, which has already vexed one of my colleagues, please do drop me a line at StephenH@consultationinstitute.org

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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