No Consultation on Consultations?

On 17 July, the Minister of State, Cabinet Office (Oliver Letwin), and the Minister of State, Department for Business, Innovation and Skills with responsibility for business and enterprise, (Mark Prisk), informed the House that the current Code of Practice on Consultations which had been in place since 2008 had been replaced by new Guidance on Consultation Principles under ‘a new approach to Government consultations’.  This forms part of the Civil Service Reform Plan and is intended ‘to improv[e] policy making and implementation with a greater focus on robust evidence, transparency and engaging with key groups earlier in the process’.

The Cabinet Office identifies the key Consultation Principles as:

–    Permitting departments to employ a range of timescales rather than the current ‘default’ 12-week period, particularly where extensive engagement has occurred before;

–    More thought being given as to how Departments engage- and consult with those affected;

–    Making consultations ‘digital by default’, but using other media where these are needed to reach the groups affected by a policy; and

–    Continuing to respect the principles of ‘the Compact between government and the voluntary and community sector’.

These new principles are being promoted within Whitehall, ‘and the public will begin to see the new guidance take effect in early autumn 2012’.

Changes Introduced

The 2008 Code of Practice is a 16-page document which sets out seven criteria which must be applied in the conduct of consultations, criteria and should be reproduced in consultation documents.

When to consult; Duration of consultation exercises; Clarity of scope and impact; Accessibility of consultation exercises; The burden of consultation; Responsiveness of consultation exercises; and Capacity to consult. 

However, it retains a degree of flexibility in that: Ministers retained their existing discretion not to conduct formal consultation exercises under the terms of the Code; other forms of engagement were not discouraged, and the Code did not create a commitment or duty to consult; it accepted that deviation from the Code would, at times, be unavoidable when running a formal, written, public consultation.

In contrast, the Guidance on Consultation Principles is a 3-page document covering:

Subjects of consultation; Timing of consultation; Making information useful and accessible; Transparency and feedback; and Practical considerations. 

Comment

Although there is to be no formal consultation on these changes which are currently being implemented, the Minister informed the House that ‘[i]n line with the principles of open policy making we welcome views on how the new approach should operate in practice’.  The new Guidance is non-statutory and as such does not affect the requirement relating to consultation process defined within the legislation.

Whilst an increased openness and efficiency is to be welcomed, the examples of the reorganization of the National Health Service and the introduction of same-sex marriage demonstrate the fundamental importance of consulting on the principles of new policy initiatives before they are adopted rather than restricting comment to the manner of their implementation.  Although the Guidance states:

‘[p]olicy makers should bear in mind the Civil Service Reform principles of open policy making throughout the process and not just at set points of consultation’,

the issue would appear to rest with government rather than the Civil Service.

There may also be concern at the statement

‘[t]here may be circumstances where consultation is not appropriate, for example, for minor or technical amendments to regulation or existing policy frameworks, where the measure is necessary to deal with a court judgment or where adequate consultation has taken place at an earlier stage’

and how it is applied in practice, such as the implementation of the judgement in Commissioners for Her Majesty’s Revenue and Customs v Waste Recycling Group Limited which was subject to detailed consultation and discussion, and described here.

On the practical side, some representative bodies require time to consult their members and collate their responses, and the option of a two-week consultation period would probably be insufficient. However, the negotiations with Defra, DECC and their consultants during the formulation of the technical procedures associated with UK and EU climate change legislation demonstrated that complex issues can be addressed within very tight timescales.  Nevertheless, there are finite limits to such responses, and this can be problematic in cases where there are a number of consultations, Select Committee inquiries &c, all with similar deadlines.

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