No-one’s watching Westminster right now are they? Let’s be honest, there are bigger things going on in the world. But that doesn’t make the day-to-day of governance any less important, and I’ve once again been casting my eyes over the Mother of all Parliaments (and only occasionally getting distracted by going down electoral rabbit-holes in some place across the water).

Westminster

The Commons were back in action again this week, and I want to take a look at the adjournment debate from Wednesday, which examined (amongst other things) the use of emergency traffic orders (ETO) in London. These are the instruments that are being used by local authorities to implement pop-up cycle lanes, pavement widenings and other measures to encourage health, wellbeing and local community development. Rupa Huq MP, referred to them by a phrase I have not previously heard, and hope never to have to use again “road smallings”.

It is not unfair to say that they are proving controversial, with some accusing them of being used to introduce significant permanent changes that should not be made without consultation. As of this moment of course, it’s impossible to tell how permanent many of the changes they are introducing are intended to be. The legislation they are made under, the Traffic Orders Procedure (Coronavirus) (Amendment) (England) Regulations 2020 (regulation 18, for my lovely fellow legislative nerds out there) does include a sunset clause, stating that the regulations to make ETOs will expire on 30^th April next year. The orders themselves expire after either 6 or 18 months, depending on the nature of the order.

So what if an authority decides they want to make changes permanent? Well, that requires the authority to make a permanent order before the end of the ETO. These permanent orders would be subject to the usual procedures for making orders, publication and objection etc under the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996. Where some confusion might arise (goodness knows it has in my head…) is the status of ‘Experimental orders’.

Experimental orders (s.9 of the Road Traffic Regulation Act 1984, look it up) may be used to carry out experimental schemes of traffic control. So far, so simple. Where the challenge might arise is that traffic authorities may also make an order to give permanent effect to the experimental order, and where certain criteria are met (regulation 23(3) of the LATPO above), the usual procedures regarding publication and objections may not apply.

In light of the Government guidance that to retain changes permanently requires the authority to make a ‘permanent traffic order’ before the expiry of the temporary order, it would seem that councils may not be able to bypass the usual procedure for permanent orders. Where we might see challenges arising is if local authorities try, instead of putting in place a permanent traffic order, to replace the emergency traffic order with an ‘experimental order’ that could then be made permanent without being subject to the usual processes.

There may however be a more immediate problem with an easy solution. In the adjournment debate, MPs from across the house listed a wide variety of problems arising because of poorly implemented temporary orders brought in without consultation. Might it be time, as the crisis does not seem to be abating any time soon, to re-examine the implementation of these controversial orders and impose at the very least some sort of minimal consultation requirement?

Scotland

Last week we saw criticism of the Scottish Government’s new five-tier COVID-19 plan from business groups concerned that there had been little to no consultation with industry on the scheme. The subject also fell under scrutiny in Holyrood this week, where MSPs queried whether there might be grounds for consulting on more industry support in areas in the lower-tiers of the Scottish classification system, including whether certain hospitality establishments might be able to open their doors. The insistence of the Cabinet Secretary for Finance that the Scottish Government had continually consulted with industry, including some of the sectors represented by the SLTA who last week complained about the lack of consultation and began legal actions could well be read as an overstatement of the situation. We could be about to see another coronavirus related consultation case this time before the Scottish Courts.

Wales

Hospitality related consultation was also on the menu in the Senedd this week, with the First Minister describing the approach being taken by the Welsh Government as ‘consultative’. Rather than informing people of decisions being made, he stated that they were talking to partners in advance of the decisions. One of the key issues of this form of limited consultation however was highlighted by the Member of Senedd Helen Mary Jones, who spoke about elements of the hospitality community feeling left out of the conversation. With much of the consultation on regulations going on behind the scenes in a less-than-transparent manner, not only in Wales but across the country, this is a complaint we are likely to see keep arising. Indeed, the two coronavirus consultation cases we have already seen both revolved, at least partly around it. We may well see more, and we are aware that one of those two cases is currently under appeal.

Northern Ireland

In the Northern Ireland Assembly, members were being teed up for the release in the next couple of weeks of what the Minister of Agriculture, Environment and Rural Affairs described as a ‘discussion document consultation’ on a future Northern Ireland climate change bill. Major climate change legislation is always a very interesting one to follow, and as Irish colleagues in the Republic discovered not long ago, can be troublesome if consultation is not thorough. I’m quite interested to see what form this ‘discussion document consultation’ will take. It immediately made me think back to R (Greenpeace) v SoS for Trade of Industry back in 2007, where a consultation on nuclear power was successfully challenged partially on the grounds that it was more of an issues paper than a consultation. In my mind, and I look forward to being proved wrong, there is a chance that a ‘discussion document consultation’ could risk falling prey to the same trap. Either way, we’ll keep an eye on it and keep you updated.

Last week I complained that the legislatures weren’t giving me the material. I have to say they knocked it out of the park this time. As always, if you have any thoughts, comments, or questions, please drop me a line at stephenh@consultationinstitute.org.