Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)
(11 years, 8 months ago)
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Lord Goodlad
That the Grand Committee takes note of the Report of the Secondary Legislation Scrutiny Committee on The Government’s New Approach to Consultation: “Work in Progress” (22nd Report, HL Paper 100).
Lord Goodlad
My Lords, I greatly welcome the opportunity to open this debate on the Secondary Legislation Scrutiny Committee’s report. The committee was grateful to the many organisations and individuals who responded to our call for evidence; to the Minister for Government Policy, Oliver Letwin, who gave evidence to us; and to the clerks—Kate Lawrence, who is now on a well earned sabbatical, Jane White and Paul Bristow—for their invaluable work.
The main issues in our recommendations reflected the concerns expressed in the very large number of submissions that we received in response to our call for evidence. The Government did not ask for evidence, so I hope that the responses to our call for evidence will have been helpful. We urge the Government to ensure that the review of the consultation principles that were announced last July reflects the concerns expressed in the evidence, in particular a widely expressed preference for a 12-week standard duration of consultation. We ask the Government to recognise that six weeks is regarded as the minimum feasible consultation period, except in exceptional circumstances; to ensure that consultation periods do not clash with holidays or peak periods of activity for the target group of consultees; and to engage with key interest groups prior to launching consultations, so as to reach agreement with those groups on the broad outlines.
We recommended that the review should be started in January—we are now in March—and that its findings should be published by Easter. There are no plans to add to the evidence, which is already to hand. We recommended that the review should be carried out by a unit independent of government and that a stakeholder reference group should be convened, containing members from across civil society, to provide input for the review team. We also asked the Government to recognise that a “digital by default” approach to consultation was very likely to exclude a large proportion of our society, and in particular vulnerable groups. We asked the Government to demonstrate that wider engagement with vulnerable and so-called hard-to-reach groups was being delivered in practice.
In its evidence to us, the organisation Disability Rights UK voiced concern on behalf of the 42% of disabled people who live in households without internet access. The Disability Charities Consortium asked,
“How does the Government expect the proposed new approach to consultations to impact on its obligations to involve disabled people in policy development and decision-making under the UN Convention on the Rights of Persons with Disabilities?”.
A large number of the elderly, and indeed other people, who are not disabled will also be affected by the predisposition to digital communication. The noble Earl, Lord Lytton, who I am glad to see in his place, submitted evidence on this matter, and I hope that he will say more about that later in the debate.
We asked the Government to introduce as soon as possible a single website listing open consultations in the order in which they close, for the benefit of the many organisations that respond to invitations to give evidence to consultations. We further recommended that the new principles should explicitly commit departments to publicising timely responses to consultations and to strengthening the role of the Cabinet Office in the co-ordination of consultations. We also recommended that it should be clarified to stakeholders what redress is available to them if the consultation does not comply with the published principles.
The Government’s response to the report covered the format of the proposed review, its timing and its content. We were disappointed that a more leisurely timetable is proposed for the review than we had recommended, and that the proposed membership of the external advisory panel appears small in number. It is to be hoped that the disquiet and suspicion expressed in the responses to our call for evidence will be allayed by the findings of the review and by the Government’s subsequent actions.
Our recent history is littered with examples of government action where successful consultation could have averted enormous wastes of parliamentary time, government time and money, the time and money of other people, embarrassing government climbdowns, reversion to the drawing board and so on. Most recently, my noble friend Lady Thomas of Winchester, in the debate last week on the Delegated Powers and Regulatory Reform Committee’s report on strengthening statutory procedures for the scrutiny of delegated legislation, cited the lack of consultation on a crucial part of the Social Security (Personal Independence Payment) Regulations, which had to be changed by the DWP at the last minute and for which the Minister apologised. More or better consultation would have averted that.
A successful example of consultation, on the other hand, was the Department of Energy and Climate Change’s handling of the Nuclear Decommissioning and Waste Handling (Finance and Fees) Regulations 2013, where the consultation persuaded the Government that the regulations needed to be looked at again. In 2012, they invited views on a revision to the 2011 regulations, and the issue of workability in relation to reporting and verification requirements was thereby resolved in the most recent statutory instrument, thanks to proper consultation.
Over the past five years, an average of just over 900 statutory instruments per year have been scrutinised by your Lordships’ Secondary Legislation Scrutiny Committee, formerly the Merits Committee, each accompanied by an Explanatory Memorandum, including a section on the policy background of the instrument and a section on the consultation outcome.
The importance of effective consultation to the process of government appears before your Lordships’ Committee every week. It is clear that a willingness to listen to the views of interested parties sometimes gains support for a Government’s work, and that encouraging interested parties to comment on proposals before they are finalised and implemented usually means that the policy, which has been conceived within Whitehall, can be adjusted to the reality of the outside world.
Whitehall can never foresee all the detailed impacts of policy proposals. Those at the receiving end usually can, and may thereby contribute to the avoidance of mistakes. In our experience, some departments struggle to understand the use—the validity, even—of parliamentary scrutiny as a disinterested process rather than an unwelcome but necessary interference in the project management of an item of secondary legislation, far less the intrinsic value and necessity of consultation. As always, the extent of hoisting in this necessity depends on who you are dealing with. Some departments get it better than others; some learn it faster than others.
All who have worked in government have been impressed from time to time by feelings of profound frustration. Why can we not simply get on with the job when it is so obvious what needs to be done in the public interest? Why does the car not move forward when we press the accelerator? Why is the system so furred up, obstructed by endless consultations, reviews, inquiries, inquiries into inquiries, judicial review, human rights and so on? Conversely, we all, when at the receiving end of government activity that we do not like, sometimes feel that the world is being run by people in Whitehall who have descended from Mars, speaking only Martian, and have not the slightest knowledge of or interest in the concerns of ordinary people upon whom their whims and diktats are arbitrarily inflicted without a by-your-leave. To govern by consent in a modern democracy requires for success a resolution of those two conflicting states of mind. I hope that the committee’s report and this debate will make a small contribution to enhancing that success. I beg to move.
Lord Hart of Chilton
My Lords, I, too, am a member of your Lordships’ Secondary Legislation Scrutiny Committee, whose 22nd report for 2012-13 on the Government’s new approach to consultation we are considering today. The report was published in January this year and responded to by the Government in February, and here we are debating the matter in early March. Unlike in the previous debate, there can be no complaints about tardiness in that respect; on the contrary, compliments, not brickbats, are due to the usual channels. I am in complete agreement with the speech by our chairman, the noble Lord, Lord Goodlad. I pay tribute to his distinguished chairmanship of the committee, not just on this occasion but throughout his tenure.
Accordingly, I simply wish to emphasise and repeat some of the key issues that have arisen. First, I was very surprised that the Government, in bringing forward what they called new principles of consultation, failed to carry out any consultation themselves. In my view, the importance of the proper process of consultation in initiating new or revised policy cannot be underestimated. Much of my earlier career was spent reading and responding to consultations so I suppose I have a special interest, but proper consultation, in my view, is the essential oil for the engine of government. It test-beds the underlying principles with those most likely to be affected. It checks the support or opposition that will be forthcoming. It affords the opportunity to discover mistakes in assumptions, methodology or technical background. Last but by no means least, it forms part of a healthy participatory democracy; its presence strengthens confidence in government and its absence weakens democracy itself.
It follows that the process of consultation must afford sufficient time for views to be obtained, analysed and, in certain cases, responded to. Any perceived short cuts risk confidence being eroded or lost altogether. So, in the absence of any prior consultation exercise, the committee carried out its own by calling for evidence and, as the noble Lord, Lord Goodlad, has said, we were gratified by the extensive and constructive response. There was certainly no doubt about the importance that witnesses placed on consultations, but there was some scepticism about whether the Government shared that view. In particular, there was criticism over the time allowed to participate. There was a preference for 12 weeks for issues of importance or complexity, with a minimum of six, and the period selected should not fall over bank holidays, summer holidays or periods of peak activity for the target groups.
Prior consultation was something that the Government should engage in with key stakeholders to seek a consensus on the broad outlines of the matters to be consulted upon. With a significant percentage of the public not connected to the internet, the approach of “digital by default” left some excluded and others constrained. There was a feeling that the Government sometimes failed to realise the complexity of some of the issues being consulted upon and the capacity of organisations to respond with speed. There was often a lack of response to consultations once they had taken place, leaving an impression that the consultation process was just an exercise to be got through as quickly as possible.
Our recommendations to the Government recognised the strength of many of these issues, and suggested ways in which the principles could be improved. Our conclusion was that the new principles, in many respects, were failing to provide the consistency and transparency that the public are entitled to look for in consultation exercises. Accordingly, we urged the Government to launch an independent external review of their new approach to consultation without delay, meaning a start in January and the publication of findings by Easter this year. Although the Government have accepted the principle of a review, they are not treating the matter with the urgency that we recommended and that it deserves.
For my part, I have misgivings about whether the Government, even now, have really appreciated the important part that consultations play in the formulation of policy and in winning the confidence of the public, which was one of the avowed intentions in forming the coalition and embarking upon office. Speed is not the prerequisite hallmark of good governance; full and proper consultation most certainly is.
Baroness Hamwee
My Lords, some people might wonder why the Secondary Legislation Scrutiny Committee has given so much attention to the issue of consultation. With the unremitting tide of secondary legislation—except that tides go out as well as keep on coming in—almost invariably the question is prompted, “What has been the response to consultation on this?”. If the answer is not apparent, then the question is asked, “What consultation has there been?”. Our splendid advisers, for whom my admiration grows weekly, have extraordinarily sensitive and alert antennae to this.
It is important for the committee to know the response to consultation in order to fulfil its own remit. We have some specific roles and are also required to look at,
“general matters relating to the effective scrutiny of secondary legislation”.
It is obvious also that a House asked to approve—or at any rate not object to—an instrument needs to know how it has been received. Our chairman, the noble Lord, Lord Goodlad, gave a very comprehensive account of our report. I thank him for his chairmanship. Perhaps I may say that his conclusion was all the more devastating for being delivered so quietly.
The noble Lord referred to the report of the Delegated Powers and Regulatory Reform Committee, chaired by my noble friend Lady Thomas of Winchester. I am glad that she is here but sorry that she felt that she had to take her name off the list this morning because of the weather. I believe that she is waiting for updated weather reports to see how long she can stay. The debate reminded us that it is often secondary legislation that has the greatest impact on individuals. We hardly need reminding of this since so much contentious legislation bites through statutory instruments. We might think that as the amount of primary legislation grows, the amount of secondary legislation would diminish, but that seems not to be the case. The issue is inseparable from that of the House’s narrow and rigid powers explored by the DPRRC and by the Leader’s Group, chaired by the noble Lord, Lord Goodlad. This has been thrown into sharp focus by the high public expectations that fill our in-boxes about what the House can do in response to secondary legislation.
I agree with the proposition that was the starting point of the Government’s exercise: namely, that consultation should not be a matter merely of ticking boxes. However, it fails to recognise that tick-boxes have a place as aide-mémoires. We do not need to abolish tick-boxes to avoid being ruled by them. Consultation is important not just because, like everything government does, the instruments need to be seen from the point of view of those affected—for all the reasons explained by the noble Lord, Lord Hart of Chilton—but because Whitehall does not always know quite how things work in a variety of specialised areas. One may come from Maidenhead or Manchester, not just from Mars, and fail in that regard.
Last week, the regulations on health service commissioning were withdrawn. Our committee had received a huge amount of evidence, including from many professional organisations that understood how the regulations before us would or would not work. They gave very powerful evidence about the practical impact.
Baroness Hamwee
My Lords, I was making the point before the Division that the content of instruments and consultation are not simply technical matters. Our committee received a great deal of evidence on the subject when we put out a call. I shall quote a comparatively small amount—although I am going to quote quite a lot—from the large bundle of evidence that I am holding. The first points come from an individual who wrote:
“The new Principles have retained all of the previous authority of the Government while reducing the scope for individuals and groups to prepare useful submissions. Yet, within the latest incarnation of the No. 10 website, the message is positive and encouraging, and the linked site Inside Government is clear and easy to follow … The contrast between the Principles and the No. 10 site is glaring - Governments must not create difficulties designed to deter the public. In turn, the public has a responsibility to understand the policy and explicit questions asked within a consultation … Individual members of the public generally struggle to be heard as the collective forces of lobbyists, media, and protest groups set about their respective quests. It is understandable that single-interest groups are forming as a response to perceived indifference, often spawning other groups holding alternate opinions. The internet enables such groups to form quickly and at low cost, perhaps inspiring the media … to provide their online readers with facilities to comment directly on articles, swiftly followed by site moderation: give the public a stick and anonymity and they will use both”.
The use of digital media came up a great deal, as did problems of capacity and timescales, which have already been referred to. I shall quote from a small part of the evidence, this time from an organisation. We were told that,
“communicating the consultation questions to all the relevant affected groups: we understand that the Government would do its best to notify all the groups whom it believes would be affected by a particular proposal, however, part of the reason for consultation is to be able to identify any unintended consequences. These may well come from groups whom the Government has not foreseen will be affected by the proposal in question. A two week consultation period will be unlikely to reach them … Many NGOs operate on a consensus basis and would have difficulty in meeting much shorter deadlines. For example, the Women’s Resource Centre”—
which was the witness—
“like many similar organisations, needs its members’ consent before making a response on issues of policy and this cannot be done within a fortnight. Smaller NGOs that have few if any professional staff are likely to find it particularly difficult to respond quickly”.
It is not only NGOs that have problems with short timescales. For some organisations—local government is an obvious example—there are formal processes which have to stick to a formal timetable. We were given evidence by a number of organisations about the burden of consultation. They were complaining not simply about the number of issues which the Government keep throwing up—all Governments do that—but about the burden of being asked to give a quick turnaround. The Bar Council was one of those.
The Women’s Resource Centre went on to state, of the Government’s proposals:
“This approach seems to be based on receiving a ‘yes’/‘no’ response from trusted insiders rather than being ‘a more proportionate or targeted approach’”—
it was quoting from the Government’s comments—
“and it has some obvious adverse impacts”.
“Digital only” or “digital by default” was referred to. The centre then stated:
“Additionally, on-line responses tend to allow less flexibility in the way respondents can answer the questions”.
That rang quite a bell with me. I have often been frustrated by online consultations where it has been very difficult to include any sort of nuance or spectrum of response. I was horrified to hear or see—I am not sure whether it was in the debate on my noble friend’s committee’s report or in the evidence—the suggestion of making a response by Twitter. I hope that we do not come to that.
I understand the Cabinet Office’s wish to ensure that consultation is effective and not wasteful of resources. Although those are entirely benign intentions, the very reaction must have prompted some doubt. As we have heard, there is to be a review, with the involvement of an external advisory panel, not a stakeholder reference group, to “inform the review”. Can my noble friend the Minister give us more information on who will take part in the panel and the review group, on how it will operate, and on anything else that he is aware of that might help your Lordships assess the whole situation?
The Government announced their consultation principles as,
“a new approach to consultation”.
It seems not very long ago that in another capacity, as a scrutiniser, I was being informed of a new approach to consultation which put in place formal processes, a formal 12-week period and so on. I fear that, in seeking efficiency, we may find ourselves on a path back to some of the old ways of doing things, and not in a brave new world.
Lord Bichard
My Lords, I have experienced consultation from several different perspectives during my long years. I have experienced it as a local authority chief executive, as a senior civil servant, as a quango chair, a chair of several major voluntary organisations, and as a non-exec of a private sector organisation providing services for the Government. These experiences have taught me some important lessons.
This first is that, as a rule, and with some honourable exceptions, civil servants instinctively do not much like consultation because it rather slows down the process of implementing their favoured proposal and can throw up some inconvenient but valid objections which even—heaven forbid—Ministers might find convincing. For many of the same reasons, some Ministers and quango chairs are sometimes inclined to circumnavigate the consultation process while, in contrast, voluntary organisations and private providers much value consultation because they often feel that the frequent changes to government policy and operating procedures could and would benefit from more, not less, consultation.
From these various experiences, I have been convinced that policy can be greatly improved as a result of effective consultation. There are many examples of that having happened. It has not yet been mentioned that consultation is also much more likely to ensure that legislation and policy changes are introduced with public support rather than in a hostile environment.
Consultation matters, as the chairman of the committee of which I, too, am a member, so eloquently said. This is a serious and important matter. It is not arcane. It is not just a matter for the nerds, or something that can be swept into the long grass. Not only does it matter, it needs to be regulated to ensure that it is conscientiously and thoroughly undertaken.
Strangely, before the Government introduced these new guidelines, there was, as has already been said, advice in place. It had been agreed with the voluntary sector and other interested stakeholders, and seemed to be working rather well. Although it set a uniform 12-week period for consultation, common sense accepted that sometimes a shorter period would be needed, and that happened when necessary. But perhaps, without having time to look at the statistics which demonstrated that this was being operated sensibly, Ministers were convinced by their officials that this was all taking up too much time, was excessively bureaucratic and was delaying the implementation of vital government policy, and so the new guidance was issued.
Oddly, since it was about consultation, it was not felt necessary to consult those affected. Nor was it felt necessary to prohibit commencing consultations at the start of holiday periods when those affected might not be available. Surely no one would do that deliberately. However, it has happened rather a lot to be a coincidence. It was not even felt necessary to require departments to publish a response to consultations so that respondees could at least see that their views had been considered rather than peremptorily ignored. Of course, if people cannot see that their views are taken note of, they very quickly decide that it is not worth being involved in a consultation at all. A commitment, as has been said, was made to digital consultation as the norm, with no attempt to identify groups for whom this would cause serious problems. No commitment was made at publication for an independent review of how these new arrangements were working.
It has been said that when the Minister appeared before the Select Committee, he appeared to concede significant ground on all these points. Perhaps it would have been helpful to make clear that consultation during holiday periods was not desirable; perhaps it would have been useful to publish some analysis of responses; and maybe an independent review would have been helpful. But the Minister’s later, more considered response suggested that all these matters would merely be looked at as part of the review; not now to be undertaken independently and externally but by the Cabinet Office—which is not perhaps entirely dispassionate on the matter—with advice, it seems, from an advisory committee. At this point I am trying to recall which episode of “Yes Minister” contained this storyline, because I am absolutely certain that there was one. I have been away and I have not had a chance to research that.
The final irony is that these changes have been made to inject a sense of urgency into the policy process and to reduce bureaucracy. So far their introduction has provoked widespread opposition and criticism. It has caused the Secondary Legislation Scrutiny Select Committee to discuss the proposals on at least four occasions, with the Minister attending one of those; it has led to the establishment of a review; and it has led to the establishment of an advisory board and the likelihood of many further debates when the review is published.
Perhaps most important of all, it has suggested that the Government’s commitment to the big society and listening to the voice of civil society is more about rhetoric than a genuine desire to listen to the views of interested parties—especially, I am sad to say, if their views are inconvenient. I suggest that it would be better, even now, to revert to the previous guidelines and, if not, to have a properly independent review carried out with greater urgency than we have seen so far.
The Earl of Lytton
My Lords, I was a late addition to the speakers list, having struggled manfully over the weekend to address the reasons why I could not enter my username and password on the Government Whips website. Eventually I had to e-mail late last night, asking if they would do it on the basis of an e-mail rather than either appearing in person or having filled in the form. This highlights that even those who think they know what they are doing on information technology sometimes fail to unlock the key to the relevant bit they want to get at. I will return to that theme.
Apart from the noble Baroness, Lady Smith of Basildon, and the Minister, I am the only speaker who is not a member of the committee. I am very glad to support the committee because I receive its regular bulletins and I find them extremely useful and the most valuable guide. I would like to mention that in passing.
I congratulate in particular the noble Lord, Lord Goodlad, and his committee on what is a very lucid and well reasoned document. The Government would have done well to accept it without demur or delay; the evidence certainly seems to me to speak for itself very cogently. I agree with him and the other committee members on the importance of the basic issue; efficient secondary legislation and engagement with the public through the medium of consultation is, in my view, the very bedrock of an effective and inclusive parliamentary democracy. It is important that it is respected as a process both by the public and by the Government.
Changes introduced in 2008 were necessary to restore confidence because in some respects the issue of consultation had become a music hall joke in which the “departmental book of dirty tricks” would have indicated such things as a 10-week consultation period starting on 25 July, or a six-week one starting in the first week in December. I have come across both in years gone past. So glaring have some of these examples been in the past that it was quite impossible to believe that the timing was an innocent accident as opposed to being the fruits of calculated design aimed at circumscribing the practicability of any response. I agree entirely with the noble Lord, Lord Bichard, and some of his comments. Having myself been a regular consultee, involved in consultation processes such as those that we are talking about, I know what it is like to find myself thoroughly disillusioned. Even without any realistic outcomes to consultation, as has sometimes happened, and this has already been mentioned, the body language of the whole process was really quite evident to anybody who chose to look at it in the round.
I do not say for one minute that brief consultation periods are wrong. I can think of one last summer that concerned the matter of signatures necessary for parish councils to make payments and the impediment that the previous rules presented to electronic payments—I declare an interest here as president of the National Association of Local Councils—where the consultation on the solution involved a very limited pool of interests. The participants had already sought resolutions that their national body lobby the Government to revise the regulations and make the necessary changes. It was important, particularly in the context of local government finance, to do something sooner rather than later, so arguably a short consultation in the summer holiday period was reasonable in that situation. Even there, though, a two-week consultation would, frankly, have been a complete nonsense. There must be a minimum, as suggested by the committee.
In evidence to the committee, I referred to the practicalities more generally concerning consultations that involve parish and town councils, with their customary cycle of meetings and the customary holiday periods that interpose into those. I do not want to make a meal about it because I am sure that noble Lords are entirely au fait with exactly what that means: in short, it is impossible, under a very curtailed consultation period, to make a proper response. Eventually, it falls probably to one person—either a clerk or the chairman—to try to knock something out for themselves and hope that it actually meets with the general view of the committee. It is not a satisfactory way of doing things and leaves people feeling that they are exposed; on the one hand not being able to consult their members, and on the other hand having to make a consultation of some sort or miss the opportunity. We need to guard against doing things that are administratively convenient but are apparently done without assessing the impact on those whom we are trying to consult. To put it another way, the process at the moment is not sufficiently proof against the proper role and function of consultation being overlooked, so this report is timely.
I noted that one of the consultees, the Consultation Institute, set out a sort of subdivision between short, medium and long-term consultations. I think we need a more elaborate and more sophisticated approach than that crude subdivision but the idea of a simple impact assessment, assessing the gravity of effects multiplied by the numerical instance, seems to be along the lines of a risk assessment and that type of approach that is now well understood in government and outside. There are always going to be cases where the matter is urgent but I do not think that we are ever going to be dealing with emergency measures by way of consulting the world and his boy. However, where the consultees are a small and identifiable group of, say, specialist manufacturers, I can see that a very short and targeted consultation might well be fine in that situation.
Consultation must be an intrinsically organic and human-scale exercise. It has to operate at a reasonable speed for the typical consultee, having regard to their characteristics. Those include their age, their ability to absorb technical detail and their educational attainment, as well as competition for their valuable time.
The noble Lord, Lord Goodlad, referred to my comment in the consultation about the “digital by default” approach. There are a number of issues here. First, taken at face value, that is not the answer. Significant numbers of people do not have digital access. Secondly, many of those who have such access do not have more than basic computer skills. Thirdly, not everyone is comfortable filling in a form online, regardless of their ability with a computer. Fourthly, it is very easy to limit the utility and type of response that one can get from a consultation process by the manner and design of the electronic consultation form, and in particular the space allowed for certain types of answer. Some consultations specifically ask for answers to particular questions that the consultor wants answered. The answers are not necessarily the comments that the consultee wishes to give.
It is very important that we get this right. It will be damaging if the public once again feel that they are being short-changed by the process, by over-short timescales, by artificial limitation of the type and range of issues that can be raised, by the matter not being set in its proper context or by the issue being too complex because it has not been unpacked sufficiently. All those things militate against good consultation. I share the committee’s view that the Government’s response lacks urgency. If we are not careful, there is the risk that the momentum of a very considerable and beneficial piece of work will be lost.
Lord Scott of Foscote
My Lords, I congratulate the noble Lord, Lord Goodlad, on securing this debate. Formally, it is a debate on the report of the Select Committee of which he is the very efficient chairman and of which I have the honour to be a member—as does practically every other noble Lord in the Room. I agree with everything that has been said about the report and the importance of consultation, but I will say a few words of my own.
The purpose of consultation must be to improve the quality of proposed legislation, whether primary or secondary. It is much more important in relation to secondary legislation than to primary. With primary legislation, a Bill will have gone through the House of Commons and will go through its stages in the House of Lords. It will become public property. From time to time there will be comments in the newspapers. Members of the House will receive letters from interested persons, sometimes expressing support and sometimes expressing misgivings. They will be fully informed in that way about the merits and demerits of the proposed primary or secondary legislation before the matter comes to a head.
With secondary legislation, what is the opportunity for members of the public to make those sorts of observations—of support or criticism, as the case may be? If an affirmative resolution of the House is required, in due course the legislation will come before the House. Either it will start in the Moses Room and go to the Chamber or it will be dealt with entirely in the Chamber. However, the notice might not be sufficient to alert interested members of the public to what is afoot. With secondary legislation that requires a negative resolution to prevent it coming into effect, there will be no notice to the public at all. Every now and again, a regret Motion may be tabled. In that way a debate of which the public may become aware will take place, but that is a relative rarity. Secondary legislation that is going to come into effect without any express resolution, and which requires a negative resolution to prevent it coming into effect, is much more common. How, without prior consultation, are defects in secondary legislation of that negative character going to become apparent and be acted upon? Prior consultation, in my respectful opinion, is essential in all cases where the statutory instrument in question is going to come into effect unless there is a successful regret Motion preventing it coming into effect.
The importance of that is obvious and does not need overstating. The importance of the consultation is, first, that defects not necessarily apparent to the Minister or civil servants who have drafted the statutory instruments in question can be brought to their attention and revisions can be made before it is too late for them to be made. The pros and cons of the proposed secondary legislation can be brought to the attention of those who will be affected by the legislation. They may be affected because their interests will be involved by what is proposed. They may be affected simply because they are very knowledgeable about the subject matter of the proposed legislation. In either case, they are people whose comments may be very valuable to the Government for the purpose of obtaining the effective and sensible legislation that must be the aim of the Executive.
The importance of consultation cannot be overstated. However, effective consultation requires that there be communication with the right people. As I have said, they will be people with a particular knowledge of the subject in question and whose interests are likely to be affected by the proposals that will be embodied in the statutory instrument that is under review. They are the people who the Government should consult with before drafting and putting forward the proposed secondary legislation. There is no reason why that cannot be done but, if it is going to be done, it must be done effectively, and if it is going to be done effectively then it must be done with sufficient time for two things to happen. First, there must be sufficient time for the persons who are being informed of the proposals—the persons with whom the consultation is taking place—to think about it and draft a response. Secondly, there must be time for the Government to consider the responses and to act on them as they may think appropriate.
The proposition that there can be a consultation in two weeks is absurd. That suggestion is no more than a request, perhaps, for a fig leaf of consultation that can be held up for public relations purposes as being a consultation when in fact, because of the absence of any time adequate for a proper consultation, it will be nothing of the sort. It will not deserve the description of a consultation. The proposition that two weeks might be adequate is, in my respectful opinion, laughable. It demeans a Government who put it forward as sufficient.
The proposal that there be a flexible time limit is of course acceptable in principle. Twelve weeks as the norm has been satisfactory, but maybe there are cases where that could be abridged, or shortened to some extent. A minimum of six weeks appears to me to be a sensible limit to place on the abridgement possibilities.
Subject to those requirements of genuineness in the consultation process, consultation might be described as being plainly a good thing. However, it is not a good thing if inadequate time is allowed for responses to be given or for thought to be given to them. If insufficient time is allowed, what purports to be a consultation becomes no more than a public relations exercise in hypocrisy. That, plainly, cannot and should not be supported by the House.
I respectfully endorse the suggestions in the report of the committee—of which, as I have said, I have the honour to be a member—of a minimum period of six weeks. I urge the Government, if not to adopt the number of weeks in question, at least to adopt the principle of the essential requirement of time for response and time for thought for anything that is going to be an adequate consultation.
Lord Beecham
My Lords, I congratulate the chairman on his appointment. I take particular pleasure in the fact that I think he is now the only Member of your Lordships’ House from the north-east to occupy such a position, and I am very glad on that account. I also congratulate the noble Lord, Lord Goodlad, and the committee on the report.
Before I joined this House nearly three years ago, I spent 50 years in politics in one form or another, 43 of them as a local councillor. In my innocence, though, I was quite unaware of the degree to which the scrutiny conducted, particularly at the other end of the Palace of Westminster, was so inadequate. It is undoubtedly better in your Lordships’ House. Having said that, though, it is clear that the process of scrutiny is not as good as it should be, and that is partly a function of the consultation process. This first came to my attention when we discussed the changes that were to be made to the Public Bodies Bill. It was quite clear that decisions had in fact been made and that the consultation, to the extent that it did occur, was something of a sham.
I think that I coined the term “pre-legislative implementation” for some of what happened under the aegis of that Bill, and I am glad that the Constitution Committee is looking into that. I recall particularly the noble Lord, Lord Taylor of Holbeach—I do not blame him personally for this—giving constant assurances that there would be consultation in connection with the regional development agencies, and that each would be considered on its merits. In the event, there was no consultation at all and they all went. I do not blame the noble Lord for that; the decision was clearly taken somewhat above his pay grade.
The noble Lord, Lord Goodlad, referred in his speech to contributions from Mars. I can reassure him about that; one item that has been subject to consultation is the reform of the Outer Space Act. On page 26 of the committee’s report it will be seen that 14 weeks were devoted to possible consultation on that, in contrast to four weeks for the statutory instruments concerning the delivery of structural funds—a matter of more immediate concern, it might be thought, to all save those particularly interested in astronomy and the like. Equally, when looking at the Department of Health, one sees some strange discrepancies. Page 32 of the report points out that making nursery milk schemes more effective had an 18-week consultation whereas consultation on the membership of Healthwatch England, a matter that itself particularly concerned scrutiny, took only five weeks. Clearly, something is amiss with all this.
I respectfully differ somewhat from the noble and learned Lord, Lord Scott, on the assumption that we should deal only with secondary legislation. Experience of the Crime and Courts Bill in particular underlined that consultation took place very late; indeed, material was introduced into your Lordships’ House halfway through the passage of the Bill on the basis of consultation that had taken place after the Bill had been launched. In another context, on transforming bailiffs, months elapsed between the end of the consultation and a government response being provided, well into the course of the Bill. So while in many respects secondary legislation would be the prime area, it is not the only one about which we should be concerned.
The difficulty that many of us see is that there is an increasing reliance on secondary legislation to fill in the details not included in primary legislation nor debated during the passage of what, too often, is in effect becoming enabling legislation. I strongly support the committee’s recommendations and hope that they can be implemented in relation to consultation at whatever point it is initiated.
Baroness Thomas of Winchester
My Lords, I, too, applaud the committee’s report and strongly endorse its recommendations. I will just say a very quick word about why consultation is so important, particularly for disabled people. I absolutely accept that there are many sorts of disability, but let us take the disability of somebody such as me, with mobility problems. No one except a disabled person, or their carer or helper, can know what it is like to be disabled. That is why consultation, for this group of people, is so important. People have their eyes opened when they either go round with a disabled person or when they put themselves in a wheelchair. I know a lot of MPs have done just that to see what conditions are like in their constituencies. I note that many of the responses that the committee has highlighted are from charities with a lot of disabled people in them. I will not speak about the PIP regulations again but they are an absolutely classic example of why consultation is so important.
The other thing I will highlight is that a single website for publicising government consultations would be invaluable. At the moment they are all over the place and it is quite a scandal that the Government are expecting some organisations to respond in a very short timeframe. After all, the people in these organisations are usually paid very small amounts, because the organisations are funded by voluntary donations, with no state support. To make these people look all over the place for consultations from the Government is ridiculous. I thoroughly endorse the robust language of the report and hope that the Government are listening.
Baroness Smith of Basildon
My Lords, I first thank the noble Lord, Lord Goodlad, and his committee for a welcome and extremely useful report for your Lordships’ House. This is the second debate on a Secondary Legislation Scrutiny Committee report in the past two weeks to which I have responded on behalf of our Benches. If I am honest, my first reaction on looking at the reports was, “This could be a bit dry”. However, it actually goes much deeper than that. Not only have I have enjoyed participating in, and learnt an enormous amount from, these two debates, but they go right to the heart of our democracy and our role in your Lordships’ House as people who scrutinise legislation. It shows the House of Lords at its best: it is looking at the process of government not in an academic or remote way but in a very practical way and examining the impact of these proposals on parliamentary scrutiny. It has also—I cannot overstate this—given a voice to those who had serious concerns about the changes that the Government have made to the principles of consultation but who had not been given an opportunity to express their concerns or to be consulted in any way, to try to influence that policy before it came in. The House owes a debt of gratitude to the committee for providing that opportunity for a proper consultation on this issue.
I have been quite eager to hear today’s debate and the Minister’s response. The main reason is that, having read through the Government’s statement from July, the reports and the appendices, and the government response, I am still not totally clear what problem the Government are seeking to address by changing the rules and having this new statement of principles on consultations. I hope that we will hear from the Minister today what the problem is that the Government feel has to be addressed and what the evidence base is for the change that has taken place. The Minister’s statement in July is quite clear as to the Government’s stated objectives: that consultation must be proportionate, in terms of time, scale and type; that there should be real engagement rather than just a bureaucratic process; and that thought should be given to with whom Ministers should seek to engage so that there can be a targeted consultation.
However, all Governments would say exactly the same about those processes. In 2008, when the Labour Government brought in the Code of Practice on Consultation which this Government have now replaced, my noble friend Lord Hutton of Furness who was then Secretary of State for Business, Enterprise and Regulatory Reform, wrote in the foreword:
“This Government is committed to effective consultation; consultation which is targeted at, and easily accessible to, those with a clear interest in the policy in question. Effective consultation ... which the Government can use to design effective solutions”.
That 2008 code of practice, which laid out seven criteria for consultation, was a widely respected and very welcome document. Noble Lords here today have asked why we do not just go back and use that 2008 document. Why the change?
In its report, the committee acknowledged that that document was produced for consultation and engagement with those parties who had an interest in such matters. From looking at the way in which these new proposals have been put forward and handled and, from reading the report, the Minister’s first response has led to considerable suspicion that the Government’s priority is to curtail consultation and accessibility to it. The proposals for two areas of the process were announced in a Written Ministerial Statement issued on the last day before the Summer Recess. The Statement made clear that these were now to be the principles, though the Government would have a post facto look at them if they received any representations. That sounds very mealy-mouthed. Of course there would be representations. The Secondary Legislation Scrutiny Committee was overwhelmed with responses when it asked for views on this matter.
As to content, the headline measure was that the 12-week default timescale for consultation was to be dispensed with in pursuit of proportionality and flexibility. That Statement overlooked the fact—as the committee has rightly pointed out—that the 2008 principles already contained such scope for flexibility. In the wider context, when the Prime Minister spoke to the CBI in November 2012, suspicions were then roused about the real intention behind the Government’s changes. What is the Minister’s reaction to the Prime Minister’s comments that,
“we are going further, saying, if there is no need for a consultation, then don’t have one”?
Here are the Government making the decision as to whether or not there is any need for consultation on a government policy. I think we would all agree that the Government do not have a monopoly on wisdom; genuine, meaningful, effective consultation is very important. At that time, the Prime Minister also said:
“When we came to power there had to be a three month consultation on everything and I mean everything, no matter how big or how small”.
Clearly that was not the case, as the committee outlines in its report.
So how does the attitude of the Prime Minister square up to other stated aims of this Government, to foster a new politics of citizen engagement and to promote localism? What has happened to those principles of the big society? Democracy and the big society are about more than casting a vote once every five years in a general election. They are about engagement, and consultation is the opportunity for engagement with the wider community.
I would welcome comments and assurances from the Minister here today, because the Government will have to show by practice and example that suspicions that they want to curtail consultations are unfounded. Failure to engage on process and content before it was introduced will mean that assurances alone will not be enough to allay the fears of those who have raised concerns.
There is much in the statement the Government made in July with which we can all agree. The first purpose of consultation should always be to use the knowledge, skills and information from consultees to improve policy formulation or implementation. I appreciate that no amount of consultation is going to change a key manifesto commitment or policy aim of the Government. But there are few consultations that fulfil those criteria. Many seek the views of those with expertise; the committee used the expression “expert critique”, which seems very apt.
One concern regarding the new principles is the removal of the requirement to provide feedback to participants. Both the Centre for Public Scrutiny and the Association for the Conservation of Energy expressed concerns, and the committee raised this with the Minister. In his response when he met with the committee, the Minister accepted that the feedback would be “very reasonable”, but he failed to make a specific commitment. The committee is right to highlight this as a recommendation. There should always be a timely response with feedback, otherwise the whole process of consultation becomes flawed.
As a slight aside, there is a serious point about the credibility of consultations. There is a great danger that consultation, in itself, is losing credibility with the public. A large proportion of the public now feel that many consultations, not just those of central government but of local government and other organisations, are a sham. The reason is that, too often, nothing significant changes as a result of consultation. We will all know of examples where a majority oppose an issue being consulted on, and yet it goes ahead. In my local area there is a consultation as to whether blood tests conducted at two local hospitals should be bussed up to Bedford for the testing to take place. I have not found anybody in favour of it yet, but it seems to be going ahead, which is quite wrong.
A Guardian article today—I am sure that the Minister is a Guardian reader; he has that look about him—which the Minister’s laugh tells me he has probably read, says that parents have criticised academy conversion talks as a farce. It states:
“Parents at a popular primary school threatened with takeover by an academy chain have labelled a promised consultation a farce after the main questionnaire failed to even ask them if they wanted the school to change status”.
This is a consultation that the DfE has instructed the company wanting to set up the school to undertake. A parent quoted in the article says:
“To not even ask us initially if we wanted the school to be an academy, it’s just indicative of a whole attitude … It really doesn’t seem that they want our views at all. It’s as if the decision has already been made—which we think it has. It’s a bit of a farce”.
I worry about that because consultation is extremely important, as the committee highlighted in its report, in helping the Government produce good legislation. Any Government should welcome that. If the whole process of consultation falls into disrepute, the Government will not get the support, the “big society”, the buy-in or the participative democracy that any true society or Government needs.
We are less likely to see changes in key policies from consultation than we would from consultations on implementation. There is often a reluctance to make significant changes, especially when preparatory work has already been undertaken during the consultation period. It is clear that pre-legislative scrutiny has been useful in ironing out potential difficulties and problems, but when such scrutiny or consultation is inadequate we see the kind of problems that we saw even last week: the Government had to revoke a key order which formed part of the Health and Social Care Act. Adequate scrutiny could have avoided that taking place.
True scrutiny, true consultation, has to be genuine and not a process or exercise. If a Government have no intention of listening or making any changes, then it is frankly irrelevant whether it is two or 12 weeks; it is wasting everybody’s time. Yet the losers there will be the Government and legislation, through the loss of support.
I recall a specific incident when I was a Minister for a devolved department in Northern Ireland. There had been a consultation exercise for the standard 12 weeks. It was brought to me with the original consultation responses and the response that we should make—not a single thing having changed in response to that consultation. When I asked about it, there were clearly two or three significant points. However, as the noble Lord, Lord Bichard, said, when work has been undertaken and a report has been prepared, there is a reluctance to change. I am pleased to say that, on that occasion, we did respond to the consultation and make some fairly significant changes as a result. Good consultation makes for better legislation and better implementation.
I will emphasise four points and ask for the Minister’s comments. First, what is the problem that the Government are seeking to resolve? In its report, the committee is very clear about the amount of consultation that takes place. The Prime Minister’s comment that everything had to be consulted on for three months was not the case. The committee looked at statutory instruments between November 2010 and November 2012 and found that there was a 12-week consultation in only around 25% of cases. Clearly it was not the case that everything was consulted on for three months.
Further evidence was provided to the committee by Oliver Letwin, showing that it was not the case that everything was consulted on for three months, even though there was quite a lot of change. That led to the committee to observe that,
“it would be helpful to the wider public debate if the Government were to recognise more explicitly that Departments have always had, and applied, flexibility over the conduct and timing of consultations”.
The Government do not give their case any credibility by failing to acknowledge that. I would welcome the Minister’s comments on what the problem was and why this had to be brought forward, given the comments made by the committee on that point.
The second point is about “digital by default”. We all know that it is cheaper and easier for the Government to consult via the internet. However, as we have heard, not everyone has internet use. The committee’s report identifies that 23% of people do not have any access to the internet. Last year I received several very neatly written letters from a young man who was highly intelligent but had a form of autism. He was a savant. His letters were very detailed and had drawings attached. He had wanted to be part of a government consultation, but his contribution had been sent back because he had not put it on the appropriate form and had not replied via the internet. It is inappropriate when somebody who wants to respond is prevented from doing so in such a way.
The committee made a number of helpful recommendations. Unfortunately, they were not addressed in the Government’s response. It would be helpful if the Minister would say exactly what is meant by “digital by default”. There is a lack of clarity, particularly when there has not been a response to the points made by the committee.
The committee also made very helpful suggestions on engagement. It is clear from those who responded to the committee’s consultation that a lot of people want to respond, to engage and to be helpful and useful to the Government. Many made very valid points about why the consultation should be 12 weeks. I draw the Minister’s attention to the submission from the Institution for Occupational Safety and Health, which makes the point that as a key stakeholder it can provide invaluable information and suggestions that consulting bodies may otherwise fail to consider. Its members come for practical health and safety input and for help in determining what is workable, effective and enforceable. The institution states that it needs 12 weeks to get that kind of information together in order to be helpful and comprehensive in its approach to government.
The CBI makes a similar point on page 10 of the report. It states:
“How not to do it: employee-owner status ... The consultation opened on 18 October 2012 and closed just three weeks later”,
despite the complexities of the issues raised. Does the Minister think that those organisations raised valid concerns about the nature of the consultations to which they responded? Will he confirm to the Committee that the points raised by those organisations and others will be taken into account and addressed in the review?
I agree with the point of the noble Baroness, Lady Thomas, that there should be a central point for consultations that people can access. Just last week I had to telephone the Home Office because the link I had been given to respond to a government consultation did not work. The department had been helpful in sending the link, but it was not available. A central point for all information would be useful.
I agree with the committee on both review and oversight. I thought that the Minister’s response was trying to be helpful in terms of the content of the review, though I entirely agree that, given the nature of the Government’s principles and the response that there has been, an earlier date would be preferable. I do not think that the points that Oliver Letwin made about the reasons were unreasonable, but they seemed to be taken account of in the committee’s recommendation. If the Minister could explain why there has to be a delay in getting this review under way and reporting back to your Lordships’ House, that would be helpful.
I hope that the review itself will also be subject to consultation. The great error highlighted in the report is that it has not been subject to consultation and has caused problems as a result; it would be useful to have buy-in from consultees. The committee said in its report:
“We recommended an early review because of the strong evidence we had received that a very wide range of interested parties saw the new Consultation Principles as having a detrimental effect on the development of good legislation”,
and said that it had,
“the superficial attraction of speeding up consultations”,
although that is contradicted by the Minister’s own figures that have been passed to the committee.
The committee made some very valid criticisms of how the Government intend to implement the external advisory panel. I am interested in why the Government are rejecting the point.
I think that I have spoken long enough on this issue. I hope that the Minister is taking this debate seriously and understands the real concerns that have been voiced. A lot of weight will be attached to the response that he gives today and to the Government’s review, and I hope that he is able to address the real concerns and worries we all have in the interests of good legislation.
Lord Wallace of Saltaire
My Lords, I am tempted to speak at double speed in the hope that we may finish before we have the next Division. This is for me also the second debate in two weeks on machinery issues, as it were—how we go about things. I started on both thinking, “This is very dry”, but I think that this shows the House of Lords very much at its best—looking at, in the previous instance, how we handle secondary legislation and, in this instance, how we handle consultations.
I intend to answer this not by defending the current Government, because I am aware that these are structural problems of government and of the way in which the Executive deal with the legislature and vice versa. I am conscious, as I think back, that I first used to worry about Henry VIII clauses when I was in opposition many years ago. In reading back to the 2007-08 consultations, I come across phrases like “consultation fatigue” and “the struggles of the Better Regulation Executive”. Indeed, I have a dim memory that my wife was on the Better Regulation Advisory Council at the time, and would come home very frustrated with some of the problems that it was facing about all the different contradictions in attempting to improve regulation and consult with the widest number of parties but nevertheless to reach an end to it.
The noble Lord, Lord Hart, rightly said that speed is not the universal hallmark of good government, but of course delay over extended periods is not the universal hallmark of good government either. If one looks back at some of the other areas in which successive Governments consulted most—airports policy in south-east England, for example—one could not say that one ever cut short consultation on that process. Over the past 30 years, the occasional decision by a Government, whichever Government it was, to override one or two of those consulted parties might have been a good idea. Consultation does not necessarily lead to consensus. I have been involved in consultations over House of Lords reform over the past 20 years, and we have not quite reached consensus on it yet through each successive process of consultation.
One of the starting points for the current Government on consultation is to say to departments, “The earlier that consultation is engaged in, the better”. A process in which you more or less decide what it is you want to do and then, when you have decided, you carry out a 12-week consultation process in which you ask everyone what they think about what you have decided is actually a very bad thing. It would be much better and more constructive—this is part of what the Cabinet Office has been saying to departments—to engage with your stakeholders as early as possible, before things have hardened into a consensus within Whitehall, so that you learn where the obstacles are likely to be and you can actually have a worthwhile exchange of views. That of course means that the Government are likely to consult first with the visible stakeholders and that there is always the problem of those who might be excluded or those who want to be involved. A later-stage consultation in which you allow others who you might not have thought of in the first instance to come in nevertheless is there to be added at the later point. Late consultation risks being a formal allowance for objections to be made; the earlier it is, therefore, the better.
My noble friend Lady Hamwee rightly talked about the burden of consultation on both sides. That came back in some of the evidence submitted to the committee —the number of occasions on which the Government are asking for consultations.
Looking back into some of this, I was struck when I came across the phrase, “the consultation and engagement community”; the professionals who were out there doing their best to catch each consultation as it came through. I am conscious of how far this industry—in a sense, this community—has grown. Coming back on the train—
The Deputy Speaker (Viscount Simon)
My Lords, a Division has been called in the House. We will adjourn until 6.56 pm.
Lord Wallace of Saltaire
My Lords, I was saying when we broke that much of this is about the tension between the Opposition and the Government, legislature and Executive, and that we have a range of long-running problems in how government consults.
I will try to answer the four questions that the noble Baroness, Lady Smith of Basildon, has raised as a focus for dealing with this extremely broad subject. After all, when one talks about consultation, one is covering a very wide range of subjects. What you need to do when consulting about, for example, the patterns of dog ownership and how to address identification of dogs—on which, on a digital consultation, some 27,000 individual replies came in very rapidly—is very different from when you are discussing an issue on land planning, the school curriculum or even perhaps on caravan sites. We have to have different sorts of consultation patterns to some extent for different sorts of issues.
The problem that the Government are seeking to resolve is how to make consultation more effective as government becomes more digital—the digital revolution provides a great many opportunities for us—and as the Civil Service gets leaner and therefore, unavoidably, slightly meaner. We note that a number of people have remarked that government has not been good at responding to consultations. Certainly that is part of what the review will need to take into account: how do we ensure that if you are consulting—and the formal consultation processes, which often come very late in a policy-making process, are the ones which really matter here—government is able to take the consultations into account and to provide a timely response?
On the “digital by default” issue, the Government are moving to a single gov.uk website. One of the things I am most excited about within government is the whole government digital proposal; how far we are beginning to transform the way in which government relates to the citizen as we go through the next digital revolution.
When I first began to be involved in this, I did not believe the DWP statistics about how many benefit claimants were interacting with government digitally. It is of the order of 25% and is expected to go up to about 70% within the next six to seven years. I found this very difficult to believe, but I now understand that we are all beginning to move along the digital corridor much more rapidly than we expected. People who do not see themselves as computer-enabled nevertheless have complex mobile phones through which they are beginning to interact with government. Part of what we hope we are able to do as we make government more open, and make access for the individual and for particular groups more available, is to make the process of consultation easier. There will be a single website, which will list all available consultations. This comes out of the whole governmental “digital by default” proposals.
The question of what is meant by “engagement” takes us into a broad set of issues, in which my noble friend Lord Goodlad raised the question of what we meant by “government by consent” in a modern democracy. I am conscious that part of the problem of how consultations are organised is that consultation now means dealing with a wide range of lobbies and interested groups, which perform the function that 30 to 40 years ago was often performed by political parties, which sorted out the range of political priorities and began to crunch through how you reconciled different priorities. Now that political parties are very much weaker and smaller, we have masses of single-issue groups, volunteer organisations, advocacy bodies, lobbies, interests and protest groups. Travelling back on the train from my party’s spring conference yesterday, I found myself sitting opposite a leading member of a major advocacy group who said that his biggest problem was “all the lobbies”, by which he meant the interested groups with which he competes and for which he wants to see, as do others, a statutory register of lobbyists, which will control their interactions with the Government. We all understand now that the battle over consultation and access to government, which will come up in a further discussion when the Government produce proposals for a statutory register of lobbyists, would take us yet again into this question of transparency, access, government response and so forth.
The noble Lord, Lord Scott, talked about the need for the Government to communicate with the “right people”, but consultation probably also has to be communication with the wrong people as well as the right people. At least, one has to be prepared to listen to the wrong people from time to time, although of course we recognise that communication and consultation early in the process has to start with the most logical stakeholders. However, we do not have to communicate only with them. We have to be careful not to communicate simply with the loudest people, or the best organised or funded.
The Government are therefore committed to open policy-making, as far as possible. The consultation principles say:
“Increasing the level of transparency improves the quality of policy making by bringing to bear expertise and alternative perspectives”.
How we manage that will also depend on how far the groups with which we are dealing are prepared to engage in a much more active consultation process from the beginning through to the end.
On hard-to-reach groups, when we are dealing with major aspects of aviation policy there are a few vulnerable groups about which one has to worry. Clearly, if you are dealing with disability policy, a Government have to make particular arrangements. Similarly, if you are dealing with caravan sites, there are different vulnerable groups and you have to make a particular effort. The Government are well aware of that. It will also come into the review.
The noble Baroness, Lady Smith, remarked critically on the Prime Minister’s comments that, if there is no need for a consultation, we should not have one. Oliver Letwin, in his evidence to your Lordships’ committee, talked a good deal about the principle of proportionality: some very minor and technical changes, such as a change in the name of an authority, do not need lengthy, expensive consultation. However, there are other areas with widespread consultation.
The noble Baroness, Lady Hamwee, talked about small organisations struggling to respond quickly, especially NGOs and local authorities. I emphasise that the consultation principles explicitly protect the compact with the voluntary sector, and we are well aware that the voluntary sector is one of those that are most actively concerned to be included in the consultation process. I reassure the noble Lord, Lord Goodlad, that the evidence presented to the committee will be taken into account in the review that the Government are about to undertake.
I say to my noble friend Lady Hamwee that the membership of the external advisory panel is currently being finalised, and will most likely include a representative from the National Audit Office. We will also take into account the committee’s recommendation that members should be drawn from the charity sector, from industry and from academia to represent a wide range of interests. As members of the committee will know, the review will begin after Easter and the panel will be announced then.
We take all the points made about avoiding holiday periods and the Christmas period into account. I am sure that the gamekeeper turned poacher that we have with us is well aware of occasions in the past when civil servants, and possibly even Ministers, have wished to use those sorts of expedients as ways of minimising the reality of consultation while going through the motions. Again, I suspect that that is a universal and secular habit of all forms of government, and it is part of what good legislatures should always be on the lookout for.
Baroness Smith of Basildon
I am sorry to interrupt. The Minister has made a great effort to answer the many questions that have been raised but, just before he sits down, there is one that I asked him a couple of times: what is the problem that the Government are seeking to address by changing from the 2008 principles to the ones that they brought forward in July?
Lord Wallace of Saltaire
I was saying that as we move towards greater interaction between government and citizen through digital means, the characteristics of consultation will change. I was also remarking that Governments have not been good enough—departments have not been good enough—at consulting with stakeholders at an early enough stage in the process. A formal consultation after you have taken the principal decision is itself sometimes bound to lead to disappointment for those who come in. We are trying to move towards a more flexible and faster system of consultation where appropriate. I hope that that provides an answer.
The review panel that will now be meeting will take fully into account everything that the committee has said and the evidence submitted to it. The panel will be reporting by the summer, and I expect and hope that, as a good legislative committee, this committee will then return to the subject and look at how satisfied it is by the review panel’s conclusions.
Lord Goodlad
My Lords, this has been an exceptionally interesting debate. Your Lordships’ House, as the Minister has indicated, is a veritable revolving door for poachers and gamekeepers, who are well represented here today.
Lord Chesterfield, in a letter to his son on the subject of women, wrote:
“A man of sense only trifles with them, plays with them, humours and flatters them, as he does with a sprightly and forward child; but he neither consults them about, nor trusts them with, serious matters”.
A bit later, when it was suggested to Arthur Balfour that he might consider the views of the Conservative Party conference on a particular matter, he said that he would rather consult his valet. However, times have moved on. There is now experience, custom, practice and indeed jurisprudence. I am grateful to the noble and learned Lord, Lord Brown, who was in his place until some time ago, for reminding me that the jurisprudence is summed up in the statement of the basic requirements for consultation originally formulated by counsel and adopted by the judge in R v Brent London Borough Council, ex parte Gunning in 1986, which was accepted and approved in courts thereafter. It says, first, that consultation,
“must take place at a time when proposals are still at a formative stage”.
Secondly, it says that,
“the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response”.
Thirdly, it says that,
“adequate time must be given for consideration and response”,
and, lastly, it says that,
“the product of consultation must be conscientiously taken into account in finalising any statutory proposals”.
That is the building block in the jurisprudence that no Government can afford to ignore. There is experience, custom, practice, jurisprudence, the 2008 code and, now, the review.
I am extremely grateful to all noble Lords who have participated in this debate and to the Minister for what he has said and the assurances that he has given. I have to say that what he said about the digital revolution did not encourage me. I hope that it resonates with the Government that there are an enormous number of people in our society, however many more come on to the web, who are not joining up to the digital system and never will, and they are going to live for a very great deal longer. Unless the Government understand that, they are going to get into a tremendous muddle, and so is everybody with whom the Government deal. I really hope that they will look at that a little bit more carefully.
We wish the Government well in their aspiration to improve consultation. As the Minister said, people throughout the country will join us in scrutinising their efforts and the committee will certainly join them in doing so. The proof of the pudding will be in the eating.