One of the most important parts of the consultation (and it’s not just us that say it, the Cabinet Office consultation principles say it in principles I and J) is  allowing appropriate scrutiny of the policy process. Allowing people to see and understand how a policy has been made and how stakeholder views have been properly taken into account helps to ensure that it is being made properly, lawfully and with appropriate input from those who might be affected.

One of the recent pieces of legislation introduced by the Government was the so-called Borders Bill (technically the Nationality and Borders Bill), a new piece of legislation which the Government claims will tighten up immigration and tackle the ongoing attempts by migrants and refugees to cross the channel. The Bill has been very controversial for a wide range of reasons ranging from provisions that might mean the criminalisation of the RNLI for rescuing drowning migrants, to others that would seem to remove liability for the turning about of boats even if it resulted in human deaths.

As if it were needed, we have something else that should be just as controversial. As with most legislation the Bill was consulted on, in a rather short consultation which we heavily critiqued in a previous Week in Parliament. We subsequently discovered plans to challenge the consultation, though we have not subsequently heard any further on this. Our concerns were sufficient that we even made the debate the core of a piece about whether there was a consultation culture problem at the Home Office.

Now the same consultation is back again in the news, this time highlighting that despite the fact that the legislation is now at report stage in the House of Commons, we have still not seen the public’s responses to the consultation. The Government response to the consultation is a masterpiece of misdirection and phraseology which seems (in many places) to completely excuse the near-total dismissal of its results.

The first substantive page of the response includes the following extraordinary paragraph:

“In interpreting the findings, it is important to note that while the consultation questionnaire was open and available to everyone, respondents were self-selecting. Given this, they may skew towards those who have strong views on the proposals and were motivated to express these views. Responses cannot be viewed as being representative of all stakeholders and the public population as a whole. Instead, the consultation and its findings represent the opinions of those who have chosen to respond.”

In and of itself perhaps, not such an incredible statement- of course the consultation represents only the views of those who respond. The “Given this…” line is a curious one, which is not dissimilar to the line briefed prior to the ditching of the Gender Recognition Act, that the results had been, in the eyes of the Government, been inappropriately skewed by responses from campaign groups- i.e. those people who might most have an interest in it!

Although the paragraph is perhaps fine, within the context of the rest of the consultation response, it’s not hard to read it as a blatant and obvious attempt to discredit the results of the consultation. Not long afterwards, the report acknowledges that a three-quarter majority of responses opposed the proposals in the plan. They then claim to have listened to concerns, before stating that the pressures are sufficiently high on the current system that they will proceed anyway.

The refusal to publish the responses however is especially interesting, not only because it breaches the applicable principles, but also because of the reason they are refusing to publish. In response to a Freedom of Information request from the charity Freedom from Torture they refused to publish the information not because complying would be overly burdensome, one of the more common reasons given, but rather because the “balance of public interest lies in… withholding the information”.

We find it somewhat difficult to comprehend how this could possibly be true. It was a major consultation on a matter of significant public interest, that evidently drew a significant response and is being used to support a major piece of transformative legislation that could have wide-ranging domestic and international impact. It is exactly the sort of legislation for which seeing consultation responses is especially important, as it entails potential impacts on those most downtrodden in life. There is unlikely to be any national security impact of releasing the responses (otherwise they would have used that exemption), and we can think of no other plausible reason, other perhaps than they would embarrass the Government- which is far from being a sufficient excuse for non-publication.

We are relieved to hear that Freedom from Torture have instructed solicitors to review the situation, and we have got in touch with them to find out more information. In light of this latest twist in the saga, it does nothing to reassure us that the consultation culture at the Home Office is anything other than deeply flawed. Here we have a consultation that at every stage has been handled at best poorly, and at worst disastrously. As it is far from the first time this has happened, we believe we’re entitled to ask what on Earth is going on over there?

We’re not quite ready to declare the Home Office an actively consultation-hostile zone, but the ongoing flow of negative stories is putting us on alert to watch them with hawk-like eyes. We will be reaching out to Parliamentarians and others who may share our concerns, and bringing together the relevant information to start drawing patterns and diagnosing what seems to be an increasingly poor situation.