A couple of weeks ago we wrote about a debate in Parliament over vaccine certification, in which we highlighted the lack of detail over the Government’s proposed review. Our speculation was that it may well turn out to be less of a consultation, and more an internal review of the evidence. We also raised the potential issues with this. We are now (somewhat) pleased to see that it is being run as a consultation- sort of.

On Monday, the Government published a ‘call for evidence’ on the possibility of testing or vaccination data being used to play a role in reopening the economy. It’s a short consultation, not dissimilar to the model we suggested back in Briefing Paper 38 (‘Exit from Lockdown: the case for consultation’) as being useful to secure at least some public engagement with policy making in the age of Covid. The Government seems, on this matter at least, to have joined us in concluding that a short exercise is better than no exercise at all.

There are, however, questions. The first and most glaring is probably whether it is a consultation at all. The language used in it almost exclusively refers to it being a ‘call for evidence’, rather than a consultation, with the exception of the title box (above) which calls it an ‘Open consultation’. ‘Open’ here refers to the fact that it is ongoing rather than anything else. It’s not clear if we will get any feedback or formal response from it, as we would expect from a ‘true’ consultation, or whether the government just plans to announce their decision after reviewing the evidence submitted. Whatever the case, the Government should tread carefully.

It has been consistently held in Court that whatever you call something, if it is substantively a consultation, it will be treated as such.

There are no apparent impact assessments, which will possibly perturb some peers who were challenging the Government on disparity of impact in the House the other week. The most obvious missing impact assessment is an equalities one- as with so many things covid-related, vulnerable people may well be disproportionately affected by any policy to introduce vaccine certification. Even outside of protected groups, as Baroness Walmsley highlighted last week, some people will have been advised not to have the vaccine on medical grounds- how would any proposed policy interact with them?

There are also enormous potential impacts outside of equality and health concerns. Who will be enforcing this? Will pubs and restaurants be expected to inspect papers before they allow someone in? Certainly a wider legislative impact assessment would seem in this case to be wise, if nothing else than to identify how the introduction of a new set of (presumably mandatory- though we wouldn’t know, because it’s not mentioned) papers would interact with other policies.

Some of this missing knowledge might be excusable if the questions themselves were detailed and got to the heart of the matter. But the truth is, the questions are deeply inadequate- three unfocussed questions, the first two of which appear at first glance to be multiple choice, although the second seems to actually be a (rather clumsily depicted) call for comment.

Their content is very general, calling only for opinions on “key considerations, including opportunities and risks” (question 2) and “any other comments” (question 3). There are no specific options presented, and nearly no background information provided to help respondents shape their responses. It almost feels like a somewhat lazy attempt to outsource the identification of basic issues to the general public.

Responding properly to the questions is likely to be difficult- either you’re going to have to provide your own context and end up sharing so much, and so vague information that it might be practically useless to help shape any eventual policy; or you’re going to end up in the other direction sharing information so precise that it doesn’t help the Government identify the general issues, which seems to be the general purpose of the endeavour.

All of this does beg the question, “why are they consulting?” Is it a genuine attempt to garner useful information for the purpose of informing policy development? Or is it rather that the speculative policy is deeply politically controversial, almost certain to be challenged in court, and therefore the Government need to be seen to be doing the right thing? Either way, doing it this way is deeply questionable. If the former, then the exercise is so poorly done that it is not likely to provide the sort of information required, and likely to fall foul of a court challenge on either process or equalities grounds. If the latter, it’s likely to be seen as a tokenistic gesture, with any eventual policy equally challengeable on the grounds that though it looked like the right thing, it was so poorly done as to be unsound.

We’ll certainly be looking at it further, and you may well see it back here when we have either a response or a policy at the end of it.