Don’t worry, we’re not gone! I’m afraid an assorted variety of pre-Christmas busy-ness, a nasty little cold and a lack of anything interesting with regards to consultation has prevented your regular parliamentary update. But we’re back now for a couple of final updates before Parliament goes into recess on 16^th for the Christmas Holiday. Do we reckon they’ll be having an office party?

It was all about timing this week in the Lords. A couple of weeks ago, the Government published the School Teachers’ Pay and Conditions (England) Order 2021, a piece of secondary legislation to update teachers’ pay rates in line with the wider public sector pay review process. As there is always wont to be over public sector pay, it’s not taken long for controversy to kick off.

The controversy this time if of interest to us, because it relates to the consultation process on the Order. Amongst more general concerns, the ‘motion of regret’ tabled against the order criticised the scheduling of the consultation, which coincided with the school summer holidays. Lord Watson of Invergowrie highlighted that four of the consultees had pointed out that this created “significant problems” for people’s ability to respond and caused difficulty for planning at school level.

The problem, according to the Department for Education in their response to criticism from the Secondary Legislation Scrutiny Committee, is a directive from Number 10 and the Treasury that all reports and consultations from public pay review bodies are published on the same day- even though in the case of teachers’ pay this is disruptive and arguably reduces the opportunity for meaningful consultation.

It’s one of those rare occasions where a Department is willing to publicly disagree with Number 10 and the Treasury, and the Minister herself made clear that they would like to consult earlier, but are not able to due to the directive.

Timing of consultations is always an interesting decision for any public authority. We know from the case law that it must be done carefully, and more often than not the potential ramifications can be more political than legal- but this particular case does remind us of the foundational case of the law of consultation- Gunning itself. In that one, it was parents being consulted, not teachers, but the principle of not consulting over school holidays was roundly criticised.

In this case, there would seem to be a simple solution- merely exempt education consultations from the usual rule. There’s nothing in law that says the consultations all have to be handled together, so why not separate out the education one to do it at a more convenient time? A more cynical mind might speculate that, as the changes being made would seem to amount to a pay cut, it is more convenient to conduct the consultation at a time where fewer are likely to respond. But we’re sure the Government would never do such a thing.