One of the things we’ve seen a lot of recently is ‘calls for evidence’. In Northern Ireland this week, we saw the launch of a ‘call for evidence’ on a housing supply strategy. The UK Government has just responded to a ‘call for evidence’ on the future of the railways in Britain, and the government’s policy on Covid-status certification (vaccine passports to you and I) was informed by a ‘call for evidence’. But is there any difference between a call for evidence and a consultation?

On a functional level the answer would appear to be no. Both involve public bodies reaching out to ask for views on a particular subject matter, usually something that they are expecting to make changes on. For the UK Government and devolved administrations, they are usually published in the same place on each of their respective websites. To all intents and purposes then, they seem to be interchangeable.

One of the possible differences is in subject matter. A brief review of ‘calls for evidence’ on the UK Government’s consultation page reveals a tendency for them to be directed more at matters that require some degree of technical expertise, things that might require some degree of expert knowledge. As examples, we might cite the Independent Review of Prevent, looking at the Government’s anti-terrorism programme; the Future Telecoms Infrastructure Review, examining future investment in telecoms infrastructure; or the Variations in Sex Characteristics call for evidence.

Not all of them fall into this category though. On the very same page, there are calls for evidence on the Women’s Health Strategy, specifically listed as being open to ‘everyone aged 16 or over’; the Violence Against Women and Girls call for evidence; and the call for evidence on Light rail and other rapid transit solutions in cities and towns; all subject that, whilst you would expect some degree of expert response, might also pique the interest of general stakeholders.

Similarly, not all technical engagement processes are listed as calls for evidence. Looking down the list of consultations, there are plenty that are deeply technical policy issues that no-one would expect the average member of the public to be able to comment on. It would seem then, that there is little consistency in approach, and the Government uses the two terms more or less interchangeably.

So is it important? We would aver that it could be. Using the term ‘call for evidence’ rather than ‘consultation’ might be somewhat exclusionary, and lead to lower uptake. Which sounds more accessible to the general public? It might sound like a petty thing to be concerned about but the words we use are important particularly in consultation, where the goal (usually) should be to enable the broadest participation possible.

This sort of thing can be particularly harmful when dealing with groups outside ‘the usual suspects’, the seldom heard and other groups who are less inclined to involve themselves with public engagement processes. Especially for such people, by using the term ‘call for evidence’ there is a risk that people who may have very valid views on a subject may think “That’s clearly a call for expert evidence, not for me” and not respond.

It is also not beyond the realms of possibility that the term might sometimes used for less salubrious reasons. One of the things that we have occasionally seen, usually in the courts, is people calling their engagement process something different in the hopes of being able to subsequently claim that it was not actually a consultation, and therefore not subject to the more rigorous demands of consultation law.

Traditionally, the courts have taken a more purposive approach to this than a terminology based one. The Breckland case, about Boundary Committee decisions, back in 2009 determined that even if a statute did not refer specifically to consultation, if a public body undertook a process which was substantially similar to a consultation, the courts may rule that it was one, and therefore subject to consultation law requirements.

In short then, we believe you should be cautious with the terms you use to describe your processes- and not just because it could lead to trouble down the line with the courts. Two of the key elements of consultation are accessibility, and fairness, and we must always be aware of the likely impacts of what we say. Even if unintentionally, the language of consultation can have significant impacts on the consultation itself. Perhaps this is another place where slightly tighter definitions are needed, to ensure that consultation and engagement meets best practice standards. Were we to give an instinctual response we might suggest that ‘calls for evidence’ are restricted to those consultations where an expert eye is required. We’d very much appreciate your thoughts.