As we’re now at the end of the year, I thought we might take the opportunity to go back through my near-meticulously kept (everyone’s allowed one tautology a year), spreadsheet which covers all mentions of consultation in the Westminster Parliament. Starting next year, we should have a new and improved system that also better covers the Devolved Administrations- at the moment my records of their debates are regrettably not as complete. Nevertheless, I do my best to keep an eye on them, and there are some postulations that we can make about the immediate future based on their activity this year.

Westminster

It has perhaps not really been a normal year in either house, but what trends have we seen over the course of the year? In the Commons, consultation mentions tend to fall into one of three categories:

• “You didn’t consult!”
• “Your consultation was rubbish!”
• “Where’s the consultation?”

Consultation perhaps occupies a unique place in the political firmament. Most policy-making takes place behind closed doors, hidden away from public sight, and beyond the place where most people actively care about the process. Consultation is different, which is perhaps why it comes up so much in the House. For the constituency MP, asking questions about consultation is a good way of demonstrating they are listening to the wishes of their constituents, and is a political-cost minimal way of being able to speak out, even if they happen to be a Government backbencher. They are after all, not challenging the decision, but the process by which it was done, and that could be anyone’s fault. It gives backbenchers a way to address controversial or difficult topics without actually offending their higher-ups in the party.

In the Lords, as so often, things are different.  They focus, as you would expect, less on parochial concerns, and more on the detail, the principle, and the need to ensure that appropriate consultation is undertaken at every stage of the legislative process. We see more detailed consideration of how new regulations and statutory instruments have been consulted upon (or not…), and what improvements need to be made. Whereas MPs tend to focus on specific instances of consultation (‘This hospital was poorly consulted on’), peers are less concerned with this, and more with ensuring that the general legislative process is being respected, and decisions are being made in accordance with the best available information.

These differences are not perhaps likely to surprise after all, though they may be part of the same body, the functions of the two chambers do bear marked differences. The differences however are something of an advantage, another example of the complementarity of the two houses. Whereas the Commons is useful for picking up the general flaws with specific localised consultations, the Lords give us more cogent spotlights on tendencies and mechanisms the Government is using as part of the regular work of legislation and regulation.

So what do we have to look forward to  from Westminster next year? Well, we should be seeing more progress on the new Environment Bill, the Government has promised to consult on a more rigorous subsidy control regime, and the new Energy White Paper contains no fewer than eight promises of consultations that could prove to be significant in the fight against climate change. As well as that, with the end of the Brexit transition period, there might be increasing amounts of pressure on the Government to take a consultative approach to how returning powers should be used. Might we even see the legendary shared prosperity fund consultation? If not, there could be fireworks from both the devolved administrations and local authorities, particularly if rumblings about local government reform continue.

Scotland

The general approach to consultation and engagement in Scotland can be quite different to the rest of the UK. It’s one of the reasons we got so excited about the McHattie v South Ayrshire court case earlier this year. There’s a lot more joint decision-making (or attempts at it), and the Community Empowerment Act alters how authorities and the public interact with one another over the decision-making process.

In terms of what the future holds for Scotland, as with all the devolved administrations, a lot depends on the manner in which powers return from the EU. Concern at the moment is high that most powers, even non-reserved ones, will end up returning to Westminster, with little opportunity to influence from the devolved administrations. This concern became even more pronounced over the passage of the Internal Market Bill, and although many of the offending clauses have now been removed by the government, concern remains.

With the independence movement still pushing for another independence referendum in the imminent future, it will be interesting to see how Westminster responds. Could more consultation with the devolved administration and the public in Scotland help to reduce the risk of a break-up of the union? That might be a calculation the Westminster Government has to make. The Scottish Government has already previewed several consultations for next year, and if more powers return to them, the Scottish approach may have a lot of opportunities to demonstrate that it could be a model for the future.

Wales

Much of the same thoughts for Scotland apply also in Wales (and in Northern Ireland), but there are also bespoke elements that might be worthy of a moments consideration. It’s now five years since the (then) Welsh Assembly enacted the Wellbeing of Future Generations Act, and the Future Generations Commissioner has recently published her first five-yearly report on its implementation.

We’ve not done much here at the Institute about this legislation, but the five-yearly report does give us a little time to wonder what the future might hold for it. There are a lot of mentions of consultation in the Act, perhaps most prominently in the preparation of local well-being plans in conjunction with local communities. The Commissioner’s report highlights around fifteen separate areas where more work is needed to shore up the standards set in the legislation.

Many of these areas involve reviewing the current state of affairs and coming up with new solutions to improve things for future generations. It is not difficult to see that there could, and indeed should, be a heavy consultative element here- who better to tell you what improvements are needed than the people living in the communities improving. Indeed, an entire annexe to the report is dedicated to involvement.

With the first report now out in the wild, it will be interesting to see what response is made by public authorities in Wales at both the national and local levels. We certainly hope to see a collaborative process informed by a community-oriented approach.

Northern Ireland

In Northern Ireland, the restoration of the Assembly in January returned proper devolved government. Unfortunately, the pandemic circumstances have perhaps not been conducive to a return of normal functioning, but as things improve with the increasing availability and distribution of a vaccine in 2021, we might expect to see a significant increase in activity, and likely a commensurate increase in consultation.

We already know of several that have been discussed in the assembly this year. The budget may well entail many smaller consultations to contribute to the wider document. The zeitgeist continues to suggest that the most interesting one to watch might be the previewed ‘discussion document’ consultation on a climate change bill for Northern Ireland.

With climate change continuing to be top of the agenda (albeit having been rather overshadowed by coronavirus and Brexit this year), and the need for radical change it should be interesting to see what the Executive come up with. Given that the UK is hosting the COP26 climate change conference in Glasgow in November 2021 there is perhaps an even further increased impetus to showcase efforts in the UK.

This was the last edition of the Week in Parliament for 2020, we will be back on 8^th January for the new year. Thank you very much for reading, and I wish you the merriest of Christmases and a Happy New Year. May it be significantly less ‘interesting’ than this one.