07 March 2013

By Sarah Glenister, IER staff

The government has refused to consult the public on measures that could severely limit oppositional voices.

Following criticism from the Secondary Legislation Scrutiny Committee (SLSC) on the government's new guidelines on calls for evidence and invitations to comment - which lean significantly in the favour of ministers, rather than interested parties attempting to contribute evidence to influence policy - the Cabinet Office has agreed to a review of its newly introduced changes to the consultation process. However, it has rejected the Committee's recommendations for an independent review and refuses to open up the issue to public comment.

The government's 'New Approach to Consultation' includes reducing the length of time provided to respond to calls for evidence and invitations to comment to just two weeks in some cases, and refusing to consult at all in others - such as when 'technical amendments' are introduced. This puts oppositional voices to the government's plans at a severe disadvantage. While the Coalition can take all the time in the world to put together its proposals; trade unions, individuals, charities and other interested parties are forced to scramble to pull together a clear and considered response - which may include obtaining detailed legal advice - in just a fortnight.

The guidelines state that "timeframes for consultation should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response", with a longer period allowed for proposals that contain very new or complex ideas. However, it is evident that where ministers have been given an inch, they have taken a mile. The consultation on Implementing Employee Owner Status, for instance, was just three weeks long, despite proposing to create an entirely new status of worker, with wide-ranging implications on many different groups of people as well as the way UK and EU law work with each other.

Elsewhere, an amendment to the Enterprise and Regulatory Reform Bill was added at report stage without public consultation. The change, which would overturn employers' 114-year-old liability for their workers' health and safety in the workplace, could be defined by the Coalition as a 'technical amendment', on which, according to the new guidelines, no consultation need take place. However, this so-called technical amendment will severely limit the ability of workers to access justice if they are injured in the workplace.

In November, the Institute of Employment Rights provided expert critique on the government's new approach to consultation and its implications, successfully encouraging 477 individuals to participate to the SLSC's call for evidence on the Coalition's actions. Altogether, the Committee received 502 responses and, following an oral evidence session with Cabinet Office Minister Oliver Letwin, criticised the consultation guidelines and called for an immediate independent review.

However, in his response published on February 7th, Letwin said the government would only go so far as setting up an external advisory panel and the review itself will be conducted by the Cabinet Office. Astonishingly, considering the subject matter of the review, he also refused to hold a public consultation on the matter unless the Committee pressed him to do so.

"Our natural inclination is to provide an opportunity for other interested parties to comment on the review by holding a short call for evidence. However, we are way of 'consulting on consultations'," Mr Letwin said.

The Minister also announced the review would not be immediate, as the Committee had recommended, but would be held back until April 5th.

The SLSC said it was "disappointed" with Mr Letwin's response, adding: "The Committee ... felt that he had not taken seriously the concerns the Report expressed. Proposals on which he seemed quite positive when he gave oral evidence to us in December 2012 are now swept into the review for consideration on whether they should happen. Proposals that are entirely within his control and capable of rapid resolution – like a single website for publicising government consultations – are similarly deferred to the end of the year by inclusion in the review. If, as he suggests in his response, the Minister does not propose to consult further but only to use the written evidence the Committee has already obtained, then there is no apparent reason why the review could not commence more quickly."

"The written evidence we received clearly showed that the fact that the Government had launched the new Consultation Principles without any prior consultation was regarded with suspicion and further delay in responding to their reasonable concerns can only underline our witnesses’ doubts that consultation will become a mere public relations exercise rather than a genuine means of influencing policy. We recommended an early review as a way of limiting the damage being done," the Committee added.

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