I want to lead this Week in Parliament with the Scottish Parliament, which this week debated the Cabinet Secretary for the Constitution, Europe and External Affairs’ report on the Coronavirus Acts. Amongst the general report on the current status of the statutory framework, the point was raised that submissions to the Scottish Parliament’s Justice Cub-Committee on Policing by the Police Federation had highlighted that they were of the opinion that there had been too little consultation on the new regulations. The member in question, James Kelly, suggested that there should be more effective efforts to consult as the Scottish Government moved through the roadmap.

Responding, the Cabinet secretary highlighted that in emergency situations the Government is not capable of undertaking the full consultation that might be hoped for. To quote: “One just has to accept that the process is truncated.” The Minister acknowledged that members would no doubt have been hearing from their constituents, making suggestions as to how the regulations may develop, describing this as part of the consultation process. Regrettably, we did not get any more firm answers on how the Scottish Government intended to take forward further consultation on the lifting of lockdown, save for a general statement that officials were still talking to organisations about how to progress.

Although there is little to contest in the Minister’s statement (though we might have some tentative qualms about conflating consultation processes and the relationships between MPs and their constituents), it does highlight a problem which we are seeing across the board. Although ministers from all jurisdictions are frequently talking about the importance of involving stakeholders as we move through the lockdown process, these efforts seem to be largely going on outside of the usual processes, in more opaque consultations between officials and groups that do not truly open for contributions from other stakeholders, not part of those groups.

So is the scope of these consultations being limited, and what impact will this have on stakeholders? Two questions with very simple answers. By only consulting with selected groups the scope of the consultations is being grossly limited, and though a Union or a trade association or somesuch can be said to speak for its members, the shortened timescales of the consultation mandated by circumstance mean that it is likely that the union will not manage to gather ‘views from the frontlines’ as effectively as it might in normal circumstances. As for the second question, this is perhaps more difficult to comprehensively examine at the moment, however, we have seen an example this week of an English policy change being u-turned on that may well have been avoidable had a wider range of stakeholders been consulted.

When the Education Secretary announced that schools would be opening for certain year-groups the response was mixed to say the least. Some were concerned that the policy seemed rushed, and there was little evidence that schools could be made a safe environment for children. Others were glad that after months of hiatus, education services could resume. It didn’t take long after the policy came into force that the Education Secretary was forced into the Commons to make an embarrassing climbdown to admit that perhaps the decision had been made before the time was strictly germane. In retrospect, it should have been obvious. To enforce the required social distancing, if such a thing could ever have been reliably done with children would have required classes to split, and an effective doubling of the numbers of both teachers and classrooms. There was also the matter of parents. When schools reopened, only 50% of all eligible children returned. Had the government reached out effectively to parents it may well have been easily able to discover that significant numbers of them did not feel safe sending their young ones back into the classroom.

Although full consultation may well not be possible at the moment, the issue is not a binary choice between full consultation or limited scope backroom consultations. In our Briefing Paper 38, we outlined a consultation procedure which could be used to gather a broad range of opinions on a much shorter timescale than usual, whilst still obeying all the relevant legal principles and practices. Whether the Government chooses to use this system or not, it is rapidly becoming clear that they need some improved system in place to ensure that changes, when they are made, are robust, practical and above all, catering to the needs of the stakeholders impacted by them.

As always, if you have any questions please do drop me a line at StephenH@consultationinstitute.org