After our little Cassandra-like venture into prophecy last week and with Parliament now back from their Christmas recess, we can get back into our regular pattern of trying to separate the wheat from the chaff.

Westminster

We’re going to start in the House of Lords today, where their Lordships have been debating the Government’s Medicines and Medical Devices Bill, a piece of legislation designed to enhance regulation of medicines and medical devices. As you might expect, it’s a bill with a heavy consultation element- most notably in s.43, which mandates that before introducing regulations, the Minister must carry out a public consultation.

So far, so normal. What piqued our attention was the introduction of a ‘patient safety commissioner’, with a remit to advocate for patient safety and generally (but not specifically) push for the improvement of patient care in the health sector. The Government has been very clear that this commissioner will not be acting as an ombudsman, and will not have involvement with specific cases in any sort of arbitral role, and is only part of a general ‘map of patient safety’.

Perhaps the most interesting thing from the consultation perspective is that this commissioner will have their own consultation duties. Notably, the new section the Government is adding to establish the role will detail how they must “inform, consult and involve patients”. The wording here is quite interesting. Those in the healthcare sector will note similarities with the wording of s.14Z2 of the NHS Act which introduced a distinct ‘duty to involve’ which, courtesy of court cases from last year, we now know is distinct from a ‘duty to consult’.

We have yet to see the precise wording of the amendment, so it’s possible this is merely a slightly ill-worded phrasing by the minister. If it isn’t though, and the phrase is accurately reflected in the amendment, it might raise some interesting questions about whether we might see more of a move towards ‘involvement’ in other areas. To the best of my knowledge, at the moment the ‘involvement’ wording is unique to the NHS Act, and any moves to expand it to other areas (even if, in this case, it is merely another aspect of the health and care sector) would be noteworthy.

As NHS professionals will appreciate, the differences between ‘consultation’ and ‘engagement’ can require public bodies to change their way of thinking, so we shall be eagerly awaiting the amendment to see what becomes of it.

Scotland

Little consultation debate in Holyrood this week, save for a brief exchange between the Scottish Parliamentary Tory leader Ruth Davidson and the First Minister. The subject was the effect that covid restrictions are having on Scottish businesses, in particular those businesses that have been told what to do to become covid compliant, have spent money on doing so and are now being told to change again. Ms Davidson argued that, despite the Scottish Government’s support programmes there is a need to better consult businesses on changes, highlighting the suggestion made by the Scottish Tories at the start of the pandemic for a Covid Business Council. The First Minister held up the difficulties with consulting when decisions must be made quickly. It is and will continue to be a perpetual problem for Governments until the end of the pandemic. Stepping away from Scotland for a moment, but sticking to this subject, we were momentarily encouraged last week when Gavin Williamson indicated the Government was looking into doing shorter consultations to be able to better respond to changing circumstances- perhaps they’ve been reading our Briefing Paper 38 where we suggested this very thing!

Wales

Similarly low levels of debate in Wales, although we did see some a question on the processes for consulting on school changes during the covid period. The MS in question, Helen Mary Jones, asked if in light of the new restrictions these sorts of consultations should go ahead. The Minister offered to point her to the relevant guidance. She might also be advised to look to the Article 39 case from the end of last year which outlined the principles by which consultations should be undertaken during covid. The most significant case we saw coming from Wales last year was an education case- could we be due to see another?

Northern Ireland

The Northern Ireland Assembly is not yet back in full session and has been sitting only for committee business this week- they’ll be back next week.