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

Baroness Hamwee Excerpts

Monday 11th March 2013 Grand Committee

[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.

--- Later in debate ---

[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.