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

Earl of Lytton Excerpts

Monday 11th March 2013 Grand Committee

[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.