For a couple of weeks I have been confidently predicting that we are due an upswing in mentions of consultations in Parliament as we move out from the more desperate early times of the coronavirus pandemic. We seem now to have reached that time. In our Briefing paper released last week, we remarked on the leaks of the Government’s back to work plans, and the apparent lack of consultation that had been undertaken before they were leaked to the press. We now have a little more information on this, courtesy of the Labour MP Andy McDonald, who revealed that trade unions had been sent seven consultation documents with the accompanying instruction that they had twelve hours to respond to them. Quite disregarding the adequacy or otherwise of the proposals themselves, and even given the extraordinary circumstances, it seems difficult to believe that this sort of consultation process can be considered truly suitable.

This week we have started to see the first rumblings of dissent about the nature of the regulations themselves, primarily in the House of Lords. Baroness Smith of Basildon, the leader of the Labour Peers cautioned against the government forcing through regulations without the usual processes. “The Government should not,” she said “see the normal process of consultation, engagement, questions and scrutiny as political obstacles to be avoided.” Shortly after her comments, the Shadow Lord Chancellor Lord Falconer highlighted on twitter that the Government had passed regulations to make the changes to the lockdown without subjecting them to the usual parliamentary scrutiny, ostensibly on the grounds that they were “too urgent” to be examined by the House.

We have also seen the first concerns about ongoing changes being affected by the coronavirus crisis. Baroness Benjamin, speaking in a debate on the new relationships and sex education policy, asked the Government what provision would be made for schools that had been unable to consult on their implementation of the new policy due to coronavirus. She received only a brief answer about how the government would send out a support package giving examples of best practice in consulting parents- we’d very much like to see the contents of this package…

Last week also saw the first mention of a potentially controversial subject, and one that I fear may arise again, the first instance of controversial changes being made with limited consultation. This particular case was a change to procedural requirements relating to children’s social care- usually an area that would come under great scrutiny. Lord Howarth of Newport challenged the changes, arguing that they constituted a ‘constitutional abuse’ given that the changes made had been previously rejected by Parliament. The Government contended that the changes were minor, and that though there was not the usual 12-week consultation period, they had consulted with local authorities. For this week’s confident prediction we may well say that this is unlikely to be the last time that such problems arise, and we would expect to see court challenges around changes made under emergency legislation.

In the Scottish Parliament, the “committee that no one wanted” (as its convenor called it), the COVID-19 Committee presented its thoughts on the Coronavirus (Scotland) (No 2) Bill, the sequel to the first set of emergency legislation passed. Generally supportive, they highlighted another area that the Institute is putting a great deal of thought into- what happens if changes made under emergency processes end up being positive? In Scotland, the committee recommended that any temporary changes that are deemed to be worthy of continuation after the emergency is over should be subjected to further consultation and possibly new legislation, recognising that the current processes would in normal time not be satisfactory. Keep an eye out in the next couple of weeks for more thoughts on this. Our finest minds are working on it!

Relatively quiet in the Northern Irish Assembly on the consultation front, a few minor mentions in connection with secondary legislation all, oddly, transport related. Cycling infrastructure and the regulation of electrically assisted pedal cycles seemed to take priority with the former being given prominence because of the pandemic which, so the member for North Down, Rachel Woods, highlighted an urgent need for improvement.

Even fewer mentions in the Welsh Parliament, which I am a little disappointed by as it denies me the opportunity to wax lyrical about their name change from the Welsh Assembly to the Welsh Parliament/Senedd Cymru, which came into force last Wednesday. Nevertheless, I would like to extend my congratulations to them, it’s a long needed change in pursuit of appropriate parity.

Last week the Institute published Briefing Paper 38: Exit from Lockdown- the case for consultation, making an argument for a consultative end to the lockdown- have a read of it- there will be follow-ups. As usual, if you have any further questions, I am contactable at stephenh@consultationinstitute.org