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

Lord Scott of Foscote Excerpts

Monday 11th March 2013 Grand Committee

[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.