Will the Government rethink its approach to consultation?

This project led by the Democratic Society on open policy making has been focusing on how to improve the mechanisms we use for consultation. While it might not have made (m)any headlines, a recent House of Lords report strongly challenged the Government’s new guidance on consultations and has confirmed the concerns of many organisations which have been following these developments closely. Consultation might not be sexy at the best of times, and has certainly been much maligned, but this debate matters for a (hopefully) functioning democracy.

On 1oth January 2013 the House of Lords Secondary Legislation Scrutiny Committee issued a report which sharply criticised the Government and called on it to hold an immediate review of the new consultation principles it had introduced in July 2012. As the report stated: “The new Principles may allow the Government to make legislation more quickly, but there is a risk that the resulting statute will be less robust because rushed consultation processes make it too difficult for external interests to provide expert critique at the right time.”

What has caused this concern? Under the guidance published by the previous government in 2008, the normal duration for consultations was 12 weeks. The new approach announced in July 2012 dropped this ‘norm’. To be fair to the Government, it tried to put forward what it regards as a more flexible ‘proportional approach’ to consultation, particularly where extensive engagement has occurred before. But in its criticisms of the new principles, the Committee was reflecting the evidence it received from a wide range of organisations calling for greater consistency and transparency in the Government’s approach. Lord Goodlad, Chairman of the committee, said: “We have been struck by the volume of evidence we received and by the extent of concern over the Government’s July 2012 Consultation Principles.” Evidence from over 70 organisations and individuals, including the TUC and the CBI, suggested that the Government need to do more to ensure consultations are effective and provide a real opportunity for engagement for stakeholders. “In the light of the evidence, we call on the Government to recognise that the July 2012 Principles are failing to provide the consistency and transparency that others look for in consultation exercises.”

Is there any evidence that the new guidance has changed what departments actually do? As the Committee’s report notes, between January and July 2012, 56.5% of the 253 government consultations held lasted more than 12 weeks, but between July and December 2012 only 26% of the 207 consultations did so. A number of respondents to the Committee’s call for evidence voiced concerns that the shorter duration made it harder for interested parties to provide evidence-based responses. The Committee in particular recommended that the Government show a clearer commitment to engaging with vulnerable and hard-to-reach groups in their consultations.

They also urged the Government to recognise that a “digital by default” approach may exclude vulnerable and other groups, and may constrain comments from those who do respond. Government departments should demonstrate more clearly that the commitment to wider engagement with vulnerable and hard-to-reach groups is being delivered in practice, and the Government should reinforce the commitment to wider engagement in any revision of the Principles. The Committee also called for greater transparency, such as a single website listing all open consultations. Perhaps most significantly, and as an indication of the seriousness of the Committee’s concerns: “…we recommend that, before placing any new deregulatory Bill before Parliament, the Government should carry out an effective process of public consultation, in the spirit of the Minister’s assurances to us.”

As part of its work the Committee took oral evidence from Oliver Letwin, MP, Minister for Government Policy (the transcript can be found here). Letwin told the Committee that the Government (always?) intended to review matters after a year and would take account of the views of individuals and groups concerned. Letwin called the guidance “work in progress” (certainly the impression from those inside government was that it was written very quickly). The 2008 code was the subject of extensive consultation; the new principles were not. In an obvious irony, the House of Lords Committee’s criticisms of the new consultation principles stem from the Government’s failure to consult properly. It seems now as if there is the opportunity for ‘consultation in reverse’.

To ensure that consultation processes are improved, the Committee recommends that the review of the principles should be carried out by an independent external body, and that the review report should be published by Easter this year. In a sense, the House of Lords report has offered the Government a second chance in its approach to consultation. Will the Government take it – and what should they do? It would be fitting if the new new guidance was developed and drafted in the spirit of the Government’s commitment to open policy making, by drawing in a diverse range of external expertise, and by doing it in public – much in the manner of this discussion space on open policymaking and consultation.