13 December 2012

By Sarah Glenister, IER staff

Oliver Letwin, Cabinet Office Minister responsible for coordinating government policy, tries to defend the government's new approach to consultations (that is, making them more difficult to respond to), to the Secondary Legislation and Scrutiny Committee.

Oliver Letwin, Cabinet Office Minister responsible for coordinating government policy, gave his oral evidence to the Secondary Legislation and Scrutiny Committee (SLSC) on the government's new approach to consultation on Tuesday (11 December 2012). The IER led a campaign against the recent changes to ministers' guidance for calls for evidence and invitations to comment in readiness for Tuesday's session, but if you missed our report on the government's reforms, here are the key points:

• Ministers have been advised they can allow just two weeks for consultation on some issues, instead of defaulting to the 12-week periods set out in the 2008 code of practise.
• The length of consultation periods is at the discretion of the minister, who can choose to provide 12 weeks or more if this is deemed proportionate, but may also decide to offer no longer than a fortnight.
• Ministers can decide not to consult at all on issues they feel do not need to be taken to the public forum.
• Consultation should be digital by default.
• The public was not made aware of any of these changes and the new approach to consultation was not consulted on.

After reporting on this news, the IER published a standard letter in opposition to the changes, which could be amended and sent to the SLSC as part of the body's month-long consultation on the issue by any interested party. The SLSC has reported that of the 550 responses it received, 477 of them were sent as part of this campaign.

However, despite the large opposition to the government's changes, Mr Letwin was barely challenged during his meeting with the SLSC.

For instance, the Minister highlighted that the Department for the Environment, Food and Rural Affairs' Consultation on the Code of Practice on Noise from Ice-Cream Van Chimes lasted for 12 weeks, while the Department for Communities and Local Government's consultation on changing the name of Bedfordshire and Luton Combined Fire Authority lasted just four weeks. This, he explained, was proportional because the noise from ice cream vans "is the sort of thing that affects quite a lot of people".

Astonishingly, although the IER's official response as well as the standard letter that was sent out 477 times noted the three-week long consultation into introducing a new status of worker, which would have wide-reaching implications, the Minister was not questioned on this. Not only could employees be effectively forced to give up fundamental rights like redundancy pay and the right to claim unfair dismissal under the plans, they also increase red tape, are more complex for HR departments and could open new tax avoidance opportunities for wealthy workers and employers. In addition, the employee ownership will work in a complicated manner alongside EU laws, which could cause confusion for both employers and employees when it comes to what rights they have, potentially leading to an increase in grievance procedures and employment tribunals.

To research and provide a clear and considered response to this major change to employment law, the government thought it was proportionate to allow three weeks for consultation, yet the noise from ice cream vans was consulted on for 12 weeks because that "is the sort of thing that affects quite a lot of people".

Furthermore, it appears the 12-week consultation into ice cream van chimes that Letwin referred to was not even conducted after the change in approach to consultation, which came into effect in the latter half of the year. Besides this, it seems odd to us that the Minister was allowed to talk about minor consultations such as the change in name of the fire authority and the ice cream van code of practice rather than major legislation like the employee ownership proposals and plans to abolish the Agricultural Wage Board, and along with it the Agricultural Minimum Wage. These consultations, as we are sure Letwin is aware - and the SLSC certainly are as it was clear in our consultation response - were among those drastically shortened.

Although we do not believe that Letwin was sufficiently challenged on his view of proportionality, he was at least questioned on several other points of note. One of these was his statement that departments should take into account what kind of organisations they wish to hear evidence from when deciding how a consultation should be run, for instance concentrating on bodies like the Confederation of British Industry when consulting on proposals that will affect businesses. He was rightly challenged on this by Lord Norton of Lough who said: "Who you want to hear from may not include those who may have something to contribute to the consultation."

Furthermore, the Lords were keen to extract from the Minister what the motivation for the change to approach was anyway - in what way were 12-week consultations not working? This is a valid point, that was upheld throughout the session, despite a weak explanation from Letwin that the government wanted legislation to move more quickly.

"I am not sure much damage is caused by having 12 weeks," said Baroness Morris of Yardley. "That is the trade-off. The world would not fall in [with longer consultations]."

Letwin was also questioned on why he chose not to consult the public when it came to changing the approach of the government toward consultation.

"We think that it is sensible to see what the reaction of the department is, to see how people receive the effects of the reaction and then to judge whether we need to adjust it," Letwin responded. " I do not think that, in advance, you can terribly much tell whether it will perfectly work," he claimed.

The Minister also defended the government's new approach against criticisms from the Lords regarding the inconsistency of consultation periods. Baroness Morris noted that consultations can be unexpected and unpredictable, and at least when there was a set length to consultation periods there was some degree of certainty for those who wish to respond.

"All the decisions about how the discretion should be exercised are taken by departments and not by those who are being consulted," she stated. "Is that not a problem, that it is almost a system set up for the benefit of the civil servants so they can exercise discretion? It takes away from the consultees. It might be a bit long and a bit inconvenient for the Government, but at least it is consistent and predictable."

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