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

Baroness Smith of Basildon Excerpts

Monday 11th March 2013 Grand Committee

[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.

--- Later in debate ---

[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.