The British constitution is a curious thing. A collection of key statutes (the Acts of Union, Magna Carta etc.), constitutional principles (the rule of law, parliamentary sovereignty, international law etc.) and constitutional conventions (the PM is the leader of the party with the most seats in the House of Commons, treaty ratification and so on), it’s often the source of great controversy over whether or not efforts should be made to properly codify it. One of its key parts for many years has been the concept of human rights.

Mostly when we think about human rights, we think of the Human Rights Act 1999, the legislation that gave effect to the European Convention on Human Rights and opened a new era of respect for the basic dignities and liberties of humanity in the UK. The HRA was not however the first legislation to attempt to elucidate these rights in British legal Jurisdictions. The Bill of Rights 1689 in England and Wales, and the Claim of Rights Act 1689 in Scotland brought in some limited civil liberties, and even the famous (and oft misinterpreted) Magna Carta touched upon issues which we might now characterise as in the category of human rights.

The last thirty years or so however, though they may have been a halcyon era for human rights in the UK have not been entirely plain sailing. Successive governments of all stripes have found various endeavours being troubled by human rights considerations, and in some political sectors there has been a growth in “you couldn’t make it up!” stories about human rights interfering with decisions, which more often than not fall apart on even the most casual of examinations.

One of the leading proponents of reform has been the current Lord Chancellor and Deputy Prime Minister Dominic Raab, so it was of little surprise when the Government announced it would be undertaking a review of human rights law in the UK. Publishing over 700 pages on the subject in mid-December last year, the Government announced a consultation period, which was supposed to have closed yesterday, on proposals to replace the HRA with a new bill of rights. Amongst other things, they planned to scrap the requirement for UK Courts to have regard to the decisions of the European Court of Human Rights, something which ultimately is impossible without withdrawing from the European Convention of Human Rights entirely.

Whatever the merits of the Government’s arguments, or the possibility and practicalities of implementing them, the consultation itself has been something of a disaster. The document itself is far from neutral, and makes few attempts to present an unbiased balanced view of the issues, preferring to emphasise the perceived faults, and providing what Liberty have described as a “slanted understanding of the operation of human rights in the UK”. It makes what might be charitably called a ‘light touch’ approach to the Independent Human Rights Act Review, commissioned to review the operation of the HRA, largely ignoring it and ploughing on with the Government’s proposals regardless.

Sound familiar? It’s more or less the same approach that was taken to the Independent Review of Administrative Law and the proposed reforms to Judicial Review. Lord Faulks’ review returned a report which proposed a few relatively minor and technical changes to the functioning of administrative law. The Government then consulted on these changes, and many of the changes that the Faulks’ review had rejected. In that case, the consultation returned an overwhelming opposition to the Government’s proposals, and they eventually proceeded with mostly minor changes of the sort that the review had originally proposed.

This… innovative… approach to consultation is not the only thing wrong with the human rights consultation. Despite starting back in mid-December, the Government only published an accessible version of the consultation document on the 24^th February, just twelve days before the consultation was due to end. Subsequent to that, easy read and audio versions were uploaded on 7^th March, just six days before the end date. Given that people likely to require such things are likely to be especially vulnerable to any changes made, not to publish them simultaneously is truly shocking. Pressure from civil society groups has now forced the Government to extend the consultation (but only for those who need the easy read or audio versions) until 19^th April (and then only if a special request is made).

So, even with this belated extension, those who require an easy read or audio version are going to get almost six weeks shorter time to respond than everyone else. See the problem? All this leads us to ask: what the hell is going on with Government consultations? It’s simply not acceptable, and defensive sputterings about supply issues (which seems to be the chosen deflection tactic here- did they run out of voices, paper, or computer power?) do little more than add insult to injury, and do not help those who want to respond to an important consultation.

We should make it clear. We do not go out of our way to criticise consultations. We’re not looking to hammer consultations for minor problems that are easily rectified. But when the Government is releasing consultations that are this shambolic and shameful, we’re quite happy to go in with both barrels. We’ve been highly critical recently of the Home Office and some of their consultations, and equally critical of the Government’s apparent propensity to casually decline to consult on fundamental issues of public interest that are likely to cause controversy. Now it seems that even when they do consult on controversial issues and policies, they won’t do so properly. A dangerous pattern is emerging of a Government that doesn’t want to hear the voices of the population when they think they might say no. It is, to put it bluntly, not on.

For the Government, we have several recommendations. Firstly, it should remind itself, and all civil servants involved in consultation and engagement why we consult. It’s not a tickbox, or a formulaic process that just has to be got over before you can take action. Even if you’re a cynic, and think it’s just a way for campaigners to be disruptive remember that it can be very useful to you, both to ensure that your policy actually works in practice, and politically. Nothing will change unless there is a change in culture and attitudes for both politicians and civil servants.

Secondly, review your processes. There’s very clearly something wrong with them when this sort of catastrophe is recurring. It shouldn’t happen once, let alone multiple times. A structural review of consultation and engagement in all relevant departments could highlight where there are issues, and help to identify strategies to correct them. It won’t be an easy process, and it will require honesty and willingness to self-criticise, but without it no change will be sustainable.

Thirdly, start cultivating relationships with broader society. The last few years have been replete with stories of donor’s access to ministers, and secret business advisory groups, and unrecorded meetings between sympathetic individuals and ministers. The Government should remember that it doesn’t only govern for its friends. It has to govern for everyone, even people who are not naturally going to default to support. If, instead of when the Government needed to make a decision it speaks only to its friends and donors, it spoke to a broader cross-section of society (which might well include some of its friends and donors), they’d be less likely to keep making missteps that land them in courts, either of law, or public opinion.

For other politicians too, there is a need to become more familiar with the principles of good consultation and engagement to be better able to criticise the Government. As we’ve seen demonstrated multiple times recently, particularly on matters likely to lead to primary legislation, there’s a huge gap in consultation, and MPs and Peers often stand as the only bulwark. The Government have to be held to account when their consultations go wrong, especially when the courts can’t. We’re always happy to talk to or brief politicians on consultation and engagement issues.

On human rights, the proof of this particularly singed pudding will be in the eating. Will we see a repeat of the JR consultation where the Government backs off in the face of what looks likely to be pretty overwhelming opposition, or will they proceed with dramatic changes on the basis of spurious and biased arguments, knowing that they probably can’t be legally challenged on it? It remains to be seen, but given the developing pattern we’ll be watching like hawks. And if they get it wrong, we’ll be looking to take strong action.