14 March 2013

By Sarah Glenister, IER staff

The government's new approach to consultation, which the Institute of Employment Rights has criticised as an ideologically driven attempt to limit oppositional voices, was debated in the Lords on Monday (March 11th), revealing what appears to be a foundation of deception, trickery and deliberate avoidance of public opinion from the Tory-led Coalition.

In July 2011, the government introduced new guidance for ministers on how public calls for evidence and invitations for comment should be conducted. The new recommendations included limiting consultations to just two weeks in cases where ministers felt this was appropriate, removing consultation altogether from issues that are considered by the minister to be technical amendments, and moving to a "digital by default" model for the delivery of consultation responses.

Each of these guidelines have been strongly criticised not only by the Institute of Employment Rights, but by the 477 people who were encouraged by our critique to write into the Secondary Legislation Scrutiny Committee (SLSC) about the situation, other voluntary and charitable organisations, and even business associations including the Confederation of British Industry (CBI).

The SLSC's call for evidence was held in November and attracted 550 responses altogether, reflecting the wealth of opinions and advice the government may have received if had been bothered to consult the public on its new guidelines before they were introduced.

In December, Cabinet Office Minister Oliver Letwin appeared before the SLSC to give evidence on behalf of the government and appeared to concede that many of the ways ministers currently conduct consultations is not up to scratch, including the widely-used practice of launching calls for evidence on or near public holidays when fewer interested organisations will have the time, resources and staff required to submit a clear and considered response.

The SLSC reported its recommendations to the government in January and called for an immediate, independent review, but Oliver Letwin's recent response to the Committee showed many of the issues identified will only be considered during the review, which itself will be conducted internally by the Cabinet Office (with help from a small external advisory board), and will not be immediate.

Following this response, which the SLSC described as "disappointing", the Lords had prepared long and critical speeches to vent their frustrations on the issue.

Lord Goodland, SLSC Chair, began the debate by reporting the Committee's recommendations (which have been duly ignored by the Coalition so far) to the House. These include:

• An immediate, independent review (called for in January), that should report by Easter
• This review must reflect the "widely expressed preference" for 12-week consultations
• The government must acknowledge that a period of six weeks is the minimum feasible for consultations "except in exceptional circumstances"
• Consultations must not coincide with public holidays or "peak periods of activity for the target group of consultees"
• Key groups must be alerted to policy prior to consultation "so as to reach agreement with those groups on the broad outlines"
• The government must recognise that a "digital by default" strategy may exclude interested parties
• A single website with all consultations listed on it, to make them easily accessible, must be developed
• "Timely responses" from the government to consultations must be published
• Stakeholders must be give details of what redress will be available to them if the government do not act in accordance with published principles

Underlining the great importance of proper consultation with the public, Lord Goodland said: "Our recent history is littered with examples of government action where successful consultation could have averted enormous wastes of parliamentary time, government time and money, the time and money of other people, embarrassing government climbdowns, reversion to the drawing board and so on."

Indeed, Baroness Smith of Basildon highlighted the case of the Health and Social Care Act, of which the government has been forced to revoke a key order. "Adequate scrutiny could have avoided that taking place," she said.

It was also noted that where consultation does take place, the government often appears to ignore the criticisms and advice it has received and in many cases it appears ministers have already come to a decision on policy before their ideas are exposed to public scrutiny. In the Institute of Employment Rights' response to the SLSC's consultation on the matter, we highlighted the case of the consultation on Implementing Employee Owner Status. The call for evidence attracted 209 responses from a wide range of parties representing both employees and employers and only a handful had anything positive to say about the proposals. However, the government ignored the warnings of the public and pushed ahead with the controversial policy, quickly writing it into the Growth and Infrastructure Bill.

Lord Beecham noted a similar example in the case of the recent Public Bodies Bill, which proposed the closure of Regional Development Agencies, and thus widespread public sector redundancies. "It was quite clear that decisions had in fact been made and that the consultation, to the extent that it did occur, was something of a sham," he argued.

"I recall particularly the noble Lord, Lord Taylor of Holbeach - I do not blame him personally for this - giving constant assurances that there would be consultation in connection with the regional development agencies, and that each would be considered on its merits. In the event, there was no consultation at all and they all went," Lord Beecham added.

Aside from helping to prevent mistakes entering policy or proposals that could severely affect individual groups, several member of the Lords stressed that consultation is a strong part of ensuring the public continues to be represented by parliament when the government make decisions.

"It forms part of a healthy participatory democracy; its presence strengthens confidence in government and its absence weakens democracy itself," Lord Hart of Chilton, also a member of the SLSC, stated.

Lord Bichard added to this argument, saying:"[The new approach to consultation] has suggested that the Government's commitment to the big society and listening to the voice of civil society is more about rhetoric than a genuine desire to listen to the views of interested parties - especially, I am sad to say, if their views are inconvenient."

It seems the government's idea of democracy discounts a significant proportion of public views, as its Digital by Default policy on consultation was found to exempt almost a quarter of people from submitting evidence. Baroness Smith noted that the SLSC's report discovered 23% of the population does not have internet access. She recounted the following story of a person who has been locked out of the debate due to problems with the Digital by Default policy:

"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."

Additionally, Lord Bichard revealed his scepticism about the Coalition's reasons for changing the guidelines on consultation. They do not seem to improve public engagement. "Oddly, since it was about consultation, it was not felt necessary to consult those affected. Nor was it felt necessary to prohibit commencing consultations at the start of holiday periods ... Surely no one would do that deliberately. However, it has happened rather a lot to be a coincidence. It was not even felt necessary to require departments to publish a response to consultations so that respondees could at least see that their views had been considered rather than peremptorily ignored," he said.

If the change to the guidelines is to reduce the time spent attending to bureaucracy, the government has also suffered an ironic failure, Lord Bichard noted, seeing as the debate over the new guidelines has "provoked widespread opposition and criticism", four debates and meetings within the SLSC, the establishment of a review and an advisory board, and a likely future of further debates and talks.

Baroness Smith also questioned the need for new guidelines, as there is evidence to show that the previous code of conduct was working well. What's more, she highlighted a recent case in which the Prime Minister appeared to lie about previous consultation procedure, telling the CBI in November 2012 that "there had to be a three-month consultation on everything and I mean everything, no matter how big or how small".

In fact, the SLSC conducted an investigation of consultations conducted between November 2010 and November 2012, in which it was found that only 25% were 12 weeks long.

She demanded a response from Lord Wallace of Saltaire, representing the government, as to why the changes to the consultation process were ever needed - what problem did they intend to fix? His response was vague and refused to meet any of the questions head-on.

"As we move towards greater interaction between government and citizen through digital means, the characteristics of consultation will change," he stated.

"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," Lord Wallace concluded.

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