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

Lord Wallace of Saltaire Excerpts

Monday 11th March 2013 Grand Committee

[Lord Wallace of Saltaire]

My Lords, I am tempted to speak at double speed in the hope that we may finish before we have the next Division. This is for me also the second debate in two weeks on machinery issues, as it were—how we go about things. I started on both thinking, “This is very dry”, but I think that this shows the House of Lords very much at its best—looking at, in the previous instance, how we handle secondary legislation and, in this instance, how we handle consultations.

I intend to answer this not by defending the current Government, because I am aware that these are structural problems of government and of the way in which the Executive deal with the legislature and vice versa. I am conscious, as I think back, that I first used to worry about Henry VIII clauses when I was in opposition many years ago. In reading back to the 2007-08 consultations, I come across phrases like “consultation fatigue” and “the struggles of the Better Regulation Executive”. Indeed, I have a dim memory that my wife was on the Better Regulation Advisory Council at the time, and would come home very frustrated with some of the problems that it was facing about all the different contradictions in attempting to improve regulation and consult with the widest number of parties but nevertheless to reach an end to it.

The noble Lord, Lord Hart, rightly said that speed is not the universal hallmark of good government, but of course delay over extended periods is not the universal hallmark of good government either. If one looks back at some of the other areas in which successive Governments consulted most—airports policy in south-east England, for example—one could not say that one ever cut short consultation on that process. Over the past 30 years, the occasional decision by a Government, whichever Government it was, to override one or two of those consulted parties might have been a good idea. Consultation does not necessarily lead to consensus. I have been involved in consultations over House of Lords reform over the past 20 years, and we have not quite reached consensus on it yet through each successive process of consultation.

One of the starting points for the current Government on consultation is to say to departments, “The earlier that consultation is engaged in, the better”. A process in which you more or less decide what it is you want to do and then, when you have decided, you carry out a 12-week consultation process in which you ask everyone what they think about what you have decided is actually a very bad thing. It would be much better and more constructive—this is part of what the Cabinet Office has been saying to departments—to engage with your stakeholders as early as possible, before things have hardened into a consensus within Whitehall, so that you learn where the obstacles are likely to be and you can actually have a worthwhile exchange of views. That of course means that the Government are likely to consult first with the visible stakeholders and that there is always the problem of those who might be excluded or those who want to be involved. A later-stage consultation in which you allow others who you might not have thought of in the first instance to come in nevertheless is there to be added at the later point. Late consultation risks being a formal allowance for objections to be made; the earlier it is, therefore, the better.

My noble friend Lady Hamwee rightly talked about the burden of consultation on both sides. That came back in some of the evidence submitted to the committee —the number of occasions on which the Government are asking for consultations.

Looking back into some of this, I was struck when I came across the phrase, “the consultation and engagement community”; the professionals who were out there doing their best to catch each consultation as it came through. I am conscious of how far this industry—in a sense, this community—has grown. Coming back on the train—

[The Deputy Speaker (Viscount Simon)]

My Lords, a Division has been called in the House. We will adjourn until 6.56 pm.

--- 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.