Government’s New Approach to Consultation: “Work in Progress” (SLSC Report)

Lord Goodlad Excerpts

Monday 11th March 2013 Grand Committee

Moved By

[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.

--- Later in debate ---

[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.

Motion agreed.