The Week in Parliament
Eyes are turning this week to the beautiful county of Cornwall where the G7 are gathering to discuss current global affairs- if they can get off the topic of Brexit that is! But whilst the PM has been flying 250 miles to talk about how important it is that we are more green (can’t see that one coming back to bite him…), the work of every day Government continues apace across the country. So what’s been happening?
Regulated professions are, as a rule, ones most people try to avoid. Not because there aren’t lovely people in them (and I’m not just saying that because most of my friends are lawyers and I don’t want even fewer invites to parties), but because they’re the professions that tend to come in to clean up big messes. Think of the doctors and lawyers who only turn up when you’re at your lowest ebb, the vet who comes along when your dog is unwell, or the paramedics who arrive when your ghost is poorly (get it?). However unpopular they may be they play a vital role in society and post Brexit there is a need to reconsider how we regulate them, now we no longer fall under EU rules on the recognition of foreign qualifications.
The Government is currently steering the Professional Qualifications Bill through Parliament to do just this, but it’s come up against stiff resistance in the House of Lords on several distinct consultation grounds. The first is probably the most common consultation complaint we see coming up in Parliament, that the consultation undertaken was inadequate. In this case, Baroness Randerson (one of my parliamentary consultation stars for her useful contributions on the subject), pointed out quite how narrow the Government’s consultation with regulators on certain parts of the Bill had been, with only 12 of the approximately 60 regulators being engaged with directly on the subject of costs.
The other consultation point is a rather more interesting one- and one that we have touched upon in slightly different form before. You may recall that in this column a few weeks ago we discussed certain allegations that the Government had been front-running consultations to prevent effective parliamentary oversight of legislation. In that particular case, the claim was that the government were consulting to avoid having to answer questions by being able to claim that “this is currently under consultation, so I can’t comment”.
The Professional Qualifications Bill is facing another problem. Lord Purvis of Tweed has made substantial claims that the Bill is ill-timed as it is pre-empting a consultation on the regulation of the healthcare sector which is currently ongoing. Not only, he says, is it inopportune for this bill to be proceeding whilst that is ongoing, but the Bill actively contradicts some of the proposals made in that consultation. So what if it comes back and they immediately have to rewrite the legislation to take account of these changes? Or worse, are they pre-determining the results of that consultation by putting forward this legislation?
There are several possible explanations for this apparent disparity (which was brought up by several other peers too), and each of them has a slightly different lesson to learn for consultors. Perhaps the first is that it could be a result of two Government departments not adequately coordinating their efforts. It’s not the first time we’ve seen this. Those who have been with us a while will remember the Stephenson case, about the National Planning Policy Framework, which demonstrated that when two separate Government Departments have different objectives in consulting on something, it can prove detrimental to their ability to do a lawful consultation. The lesson here is simply one of making sure that you are all pulling in the same direction- coordination is important, particularly when you have different groups working on similar things.
The second, and seemingly the Government’s preferred explanation given the comments of the Minister in the House, is that there is in fact no disparity and that any changes proposed by the ongoing consultation could be implemented by the SoS for Health and Social Care (presumably through secondary legislation, which the entire Bill is heavily founded on- not without criticism). If this is the case, then it possibly still raises questions about why this Bill is being put forward before those changes are agreed, in order to create a unified system, and not one that appears to have been patched together from different elements. The lesson here is to make sure that you aren’t rushing into doing something which could be better done with input from already ongoing consultations.
The third, and the one that seemed to raise most concern in the Lords, is that the government may be effectively (if perhaps inadvertently) pre-determining the results of the other consultation with this legislation. Of all of them, this should possibly be the most worrying to the Government. The other consultation states that it intends to implement its reforms through secondary legislation under s.60 of the Health Act 1999. Although primary legislation is not directly challengeable in the courts, secondary legislation is, and it is not unforeseeable to imagine a JR application being made on the grounds that the results of that consultation were pre-determined by this legislation. So what lesson can we take from this? Well, apart from reinforcing the other two, this also serves as a reminder to be aware of how your projects might be viewed from outside. You don’t want to be left in a situation where there is even an appearance of pre-determination- that could get very expensive, very quickly.
Here endeth the lessons.
Scotland enjoys more than 900 offshore islands, mostly arranged in four groups: Shetland, Orkney and the Inner and Outer Hebrides. If you get a chance to visit any of them you absolutely should, they are quite stunning.* Only 89 of these are permanently inhabited, but the challenges of island life can often contribute to unique challenges for government. We have in the past written about controversy over ferries, often a very literal lifeline to islands that can be, in poor weather, essentially cut off from the mainland.
This week, we saw one of those challenges outlined in stark form by MSPs from both Orkney and the Shetlands. One of the key industries of these islands is agriculture, both using regular farming methods and more traditional crofting processes, and any major changes to the regulation of agriculture could therefore represent a significant threat to ways of life on the Isles. One such change is currently under consideration after the closing of the consultation on banning the live export of animals for slaughter and fattening.
The argument is framed around the improvement of animal welfare standards- but members criticised the plans as being potentially fatal for their island communities. As always, we have no position on the merits of the plans, but we do think that it could prove a worthwhile demonstrator of the importance of good consultation. Consultation at its best is the proper tool for dealing with issues such as this- for making a policy work well, and take into account the views even of minority groups. We have yet to see the results of the consultation, but we will be looking at it very closely to ensure that the contributions of Islanders have been properly taken into account as required by the law.
It is possible, if there is any doubt over that, that we could see a MoPAC style challenge arguing that responses have not been given due consideration, which could be both a very interesting case for legal reasons, and a very interesting one for judges who would have to avoid making a judgment on the merits of the proposals, whilst dealing with the key issues. That line is not always as clear as we might like, and it’s cases like this that can prove to be the most interesting. Until then, we eagerly await the response to the consultation, and subsequent legislation…
*this sentence sponsored by the Scottish Offshore Islands Tourist Board- thanks for the haggis folks!