Consultation by carpet-bomb: the government’s new consultation principles

Victoria Phillips is head of employment rights at Thompsons Solicitors

The weekly Thompsons Solicitors blog.


Another week, another government consultation paper. The latest is from the DWP and is about occupational pension schemes and TUPE transfers. Our LELR weekly has the detail. There’s just five weeks to respond.


When the Cabinet Office issued new consultation principles last July the cynics among us suggested that Oliver Letwin may as well scrap consultations altogether.


The announcement that the government was “improving the way it consults by adopting a more proportionate and targeted approach” was greeted with derision.


But now our scepticism has been vindicated by a House of Lords committee. A report by the Secondary Legislation Scrutiny Committee, The Government’s new approach to consultation – “Work in Progress, has called on the government “to launch an independent, external review of their new approach to consultation without delay, and to publish the outcome by Easter 2013”.


Letwin claimed that the changes were in order to provide greater flexibility than the 2008 guidance allowed and to ensure that “the type and scale of engagement is proportional to the potential impacts of the proposal”, with an emphasis on “understanding the effects of a proposal and focussing on real engagement with key groups rather than following a set process”. 


This grand endeavour essentially boiled down to scrapping the minimum 12-week consultation period and only publishing consultation papers online. As the Lords’ committee observes, the new approach “has indeed changed Government practice, but without bringing benefits that are recognised by those being consulted”.


The committee urges the government to recognise that six weeks is regarded as the minimum feasible consultation period, though 12 weeks was the widely expressed preference by those providing evidence to it.


Thompsons has had over 20 BIS, MoJ and DWP consultations since July. It’s felt a little like being carpet-bombed, especially when several have been published together. How long they’ve run, or are running for, appears random. We had three weeks to pull together a response to George Osborne’s shares for rights gimmick. And it was three weeks for the BIS ACAS early conciliation consultation. Some have opened or closed on a weekend, others at Christmas.  Five close during the school Easter holidays.


That’s another of the Lords’ committee’s beefs. It recommends the government ensures that consultation periods do not clash with holidays or peak periods of activity for the target group.


The committee also asks the government to recognise that the digital by default approach may exclude vulnerable and other groups, and may constrain comments from those who do respond.


You don’t need to be a member of a vulnerable group to be floored by the way some departments have buried the consultation sections of their websites where the sun doesn’t shine.


The Lords observed that 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”.


For this government, the right time is after the policy decision has been taken. It seems that three week consultations are for when a change is already on, or almost on, the statute book. Three months is a luxury reserved for when ministers are just going through the motions, the decision is already made, there’s no great hurry to announce it so the plebs can have their say.


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