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I turn to the issue of a trial. A Segway trial on the public highway, proposed by a member of the Sutton police force, as mentioned by my noble friend Lord Harris, was discussed at a 22 January meeting between Segway promoters, interested Members of another place, a Sutton Police representative and Department for Transport officials. Initially it was thought, as my noble friend observed, that a trial might be authorised simply by an order under Section 44 of the Road Traffic Act 1988. I regret to tell the Committee that our legal advisers found that, although Section 44 could suspend certain requirements of the Road Vehicles (Construction and Use) Regulations 1986, it could not disapply the other vital parts of the law that would be required for a trial, including requirements relating to registration and insurance, the use of cycle tracks and use in pedestrian areas.

Another concern was that while some individual police officers were keen, for reasons that have been lucidly set out by Members of the Committee, the Association of Chief Police Officers has formally stated,

On this basis, the meeting on 22 January decided against pursuing the suggestion of a trial. We will consider further the issue of a trial or trials but, as I have said, even for a trial on the public highway and cycle tracks, we would need to undertake significant legal work and make changes to the law. This is not something that we could undertake either lightly or soon. Many factors would need to be considered before we could undertake to change the law. They are all part of the wider evaluation that I have referred to, but the additional factor would be finding appropriate legal vehicles. We would need to consider that, too.

I should add that we recently approached ACPO about the specific issue of a Segway trial. ACPO advised us that:

“If the Government is minded ... to introduce any trial, that is a matter for them but we would urge caution on safety grounds and potential for misuse if use is deregulated”.

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ACPO added:

“There is no drive from ACPO for Segways to be made available for policing purposes”.

I would encourage noble Lords who wish to take this further to engage not only with my department, but with ACPO and the police to see whether they are able to persuade the police, corporately, that there are not significant safety issues at stake in allowing Segways on the public highway and cycle tracks. Taking up my noble friend’s point about the potential benefits for the police, it appears to the department that while some police officers are seized of those potential benefits, the police, corporately, are not so seized.

In conclusion, we remain aware that Segways may legally be used on roads in some other countries, and that they are sometimes employed for policing purposes, as at the Beijing Olympic Games. Nonetheless, because something is permitted in another country does not necessarily mean that it should be permitted here. We would not wish to enter into the exacting processes of introducing legislation unless we felt confident that the benefits would outweigh the disbenefits. We need to balance our aims in respect of mobility, road safety, active travel and protecting the environment, directing our resources to the areas where we can achieve the greatest benefits. We will therefore continue to evaluate information on Segway use. We will respond to the representations made to us at the 26 March meeting. I will, of course, draw the attention of my honourable friend Jim Fitzpatrick, the Minister responsible, to the Hansard report of this debate. I know that he would be happy to speak further to my noble friend Lord Harris and other noble Lords if they would like to make further representations to him.

4.58 pm

Sitting suspended.

Government: Consultation

Question for Short Debate

5 pm

Tabled By Lord Norton of Louth

Lord Norton of Louth: I very much welcome the opportunity to put this question this afternoon. I am delighted that my noble friends Lord Attlee and Lord Eccles are taking part.

The way in which government consultations are conducted may seem a technical issue but it is actually important to the health of our political system. I have variously written and spoken about the importance of the relationship between Parliament and the public. This afternoon, I am concerned with the relationship between government and the public. How can interested members of the public have an input into policy deliberations by government? Equally importantly, how

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can members of the public see what is done with that input? To what extent does it inform government policy-making?

My starting point is that it is common ground that these are important questions, and that government recognise the need for consultation with interested parties when policy is being contemplated and the need for that consultation process to be as fair and transparent as possible. To that end, government provide guidance to departments and other public bodies on how to conduct consultations. The latest Code of Practice on Consultation came into effect in November last year. All government departments have signed up to the code, and guidance on running consultations is available from the Better Regulation Executive.

My concern is not with the content of the code or the guidance provided by the Better Regulation Executive but with enforcement and co-ordination. The code of guidance is exactly what it says it is: it provides guidance. Departments are not required to comply with the guidance and, as far as I can see, there is no mechanism in place to monitor, across government, compliance with the code.

There is a public perception of central government as some highly centralised and homogenised institution, with the work of departments being directed from the centre. There is one approach to government that sees it in terms of presidential government. However, another is the baronial model of government, conceptualising government as a range of departments headed by Ministers who, in many respects, resemble medieval barons, with their own courts and little empires. I think this approach is more applicable in this case. Ministers, if they choose, can elect not to conduct a consultation or, if they do, to conduct it other than in accordance with the code.

Let me identify what I see as the problems with the current arrangements. One is the fact that there is no whole-of-government view of consultation. When I put down a Question asking what steps were taken to ensure that departments complied with the code, I was told,

“There are several systems in place to aid compliance with the code of practice on consultation”.—[Official Report, 24/11/08; col. WA 241.]

There is a difference between ensuring compliance and aiding compliance, and the several systems appeared to number two. One was consultation co-ordinators in departments working with policy officials as well as with officials in the Better Regulation Executive. The other was transparency, in that consultation documents cite the criteria of the code and give the contact details of the departmental consultation co-ordinator, and departments are required in the better regulation chapter of their annual reports to describe their consultation activity over the year and compliance of their consultation activities with the code. In other words, it is transparent but a form of self-assessment.

My concern about the utility of such transparency is that it does not have much effect on government. It appears there is no one at the centre, be it in the Department for Business, Enterprise and Regulatory Reform or in the Cabinet Office, who reads the reports and co-ordinates the data on consultation. In another

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Question last year, I asked how many consultation exercises had been undertaken by government departments since October 2007 and how many of them lasted, or were due to last, for the recommended period of at least 12 weeks. The Answer began:

“The Government no longer collate data on this”.—[Official Report, 24/11/08; col. WA 242.]

It then went on to point out that the information is put in the public domain through the departmental annual reports. The material may be put in the public domain, but I am querying what is then done with that material. As far as the Government go, it appears to be the end of a process rather than part of a central process to monitor compliance and ensure that the code is being followed.

By leaving it to individual departments to follow the code, there is the danger of some departments not following it as rigorously as others. Some are innovative, others are not. The guidance provided by the Better Regulation Executive includes a section headed “Reaching beyond the ‘usual suspects’”. That is extremely important in conducting consultations. However, not all departments are energetic in seeking to consult beyond the usual suspects. When the Judicial Appointments Order 2008 was being considered by the House last October, I noticed that the Ministry of Justice had been assiduous in consulting the bodies that one would expect to be consulted regularly on matters affecting the judiciary. However, the Explanatory Notes recorded:

“The level of public interest in the policy has been minimal”.

As I pointed out, this could be because the order had been placed on the departmental website, and that appeared to be the extent of it. There was no attempt to be pro-active in going beyond the usual suspects.

Contrast this with the Department for Innovation, Universities and Skills, which lives up to its name by making consultation papers available to third parties in machine-readable form, thus enabling different bodies to identify when a consultation is taking place and then disseminate that fact to interested parties.

It is extremely important for the popular legitimacy of government that departments comply with the code. I would stress the need in particular for widespread dissemination of the fact that a consultation is taking place, following the practice of the Department for Innovation, Universities and Skills; for the 12-week consultation period to be met, other than in the most exceptional of circumstances; and for departments to be rigorous in collating and making available the results of the consultation, and explaining how those results have fed into the policy deliberations. At the moment, I fear, there is some concern that consultations constitute going through the motions and that the Government have already decided the issues in advance. It is essential that there is monitoring and co-ordination within government in order to ensure that departments comply with the code. I therefore ask the Minister what is being done to ensure compliance—not aid compliance but ensure compliance—with the code of practice and, as part of this, what is being done to monitor performance. As the Answer to one of my Questions suggested, the Government appear to have moved backwards, not forwards, on this.

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A starting point to monitoring consultations is to draw together a list of consultations being undertaken. The Cabinet Office used to have a webpage listing all open consultations being conducted by departments. I was told, in answer to another Question, that it had removed the webpage because the service was not picking up all consultations, the cost of the service had increased and the site was receiving a low number of hits. It would be interesting to know why the system was not picking up all consultations; presumably it was because departments were not supplying the relevant information. However, the Answer to my PQ on the subject went on:

“However, the recent review of government consultation practices and policy, which led to a new code of practice on consultation coming into force on 1 November 2008, found that a comprehensive service of live consultations would be welcomed by stakeholders. The Better Regulation Executive in BERR is working with the Directgov team of the Central Office of Information to deliver such a service in the future. This would automatically pick up all consultation exercises published by central government”.—[Official Report, 24/11/08; col. WA 232.]

That would certainly be a major step in the right direction. The website, run by the Department for Communities and Local Government, is very valuable in identifying consultations, but I am not sure how comprehensive that is. Perhaps the Minister could tell us what progress has been made in creating a comprehensive service of live consultations. If he is the bearer of good news, I shall be delighted, and if the Government are able to move in that direction, it will be a significant step forward. It will not be the end of the process but it will facilitate BERR or the Cabinet Office monitoring compliance with the code and ensuring that consultations take the form they should. That can only be to the benefit of our political system. Poor consultation, or no consultation, can undermine confidence in the process of government. As I say, this is much more than a technical matter; it is extremely important to the legitimacy of the political system.

5.10 pm

Viscount Eccles: I am very grateful to my noble friend Lord Norton for introducing this debate. I come at it as a member of the Merits Committee and therefore as a recipient of the outcome of a great many consultations. We regularly look at 30 instruments a week, and one of the very first things that we do is to look at the paragraphs on consultation.

I should like to take as a theme the Cabinet Office paper of 2007, which concerns a consultation about consultation. It is called Effective Consultation and on the front of the paper are the words:

“Asking the right questions, asking the right people, listening to the answers”.

As is very common with government documents, they do not help you to decide how to ask the right questions and they do not help with a definition of who might be the right people to ask. As to listening to the answers, I shall come back to that later, but I suppose it is a question of what weight you give the answers.

Therefore, when members of the Merits Committee look at the results of consultations, they are caught up in a series of judgments. They know that it is not

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enough to be assured that guidelines are being followed—indeed, I think that there has been plenty of evidence in recent days that just following the rules will not do—but that you also have to exercise some judgment. That is the difficulty, because in the Civil Service—the servants of the Government of the day—the process is often more important than the outcome in the sense that, if you can say that you have followed the process, then what happens is not necessarily the most important matter.

I suppose that in a democracy we are talking about the people, but in Effective Consultation we come across something called a “stakeholder”, and I know that my noble friend comes across that term too. Does that mean someone who has an assessable interest, and is that a financial interest? What is the assessable interest? We are looking for people’s opinions—perhaps people within institutions or people who are grouped together in free association—but why do we have to call them people who hold a stake? That does not seem to be a very good way of starting if you are looking to make a judgment, and in particular a judgment in relation to the level of consultation that is taking place. If there is consultation on assisted suicide or 42 days’ detention, that is at a different level. The ways and means of trying to find out what people think are many and various, and indeed they are employed in many and various ways. Votes may depend on that consultation.

However, it is not like that in the Merits Committee. The committee is in the area of secondary legislation, where the policy is set out in an Explanatory Memorandum and is, in a sense, a given. The questions asked in the consultation concern the implementation of that policy and do not necessarily question the policy itself. Indeed, it is not part of the Merits Committee’s terms of reference to question the policy but only to try to arrive at a recommendation for the House as to whether the instrument will carry out the policy. Then of course there are some technical, low-level consultations, such as about the closure of a street.

Our present system of guidelines and of commenting on consultations does not attempt to give any feel of how significant the consultation was. How likely was it that there would be controversy? How much did the department in question know that there was indeed controversy on the subject? It is carried out in a way which does not give the feel of the questions to which the department would like to have answers; it is carried out in a way in which the questions are set to cover the ground but not to look for trouble. There is some reason to think—I shall give one example—that we should look for why we did not get an answer to a question, or why a question was not raised by anyone in whatever was put forward.

The weight of evidence is often presented in the outcome in a very bland way—70 per cent said this, 30 per cent said that—and little guidance is given about what to think about the 70 per cent and the 30 per cent. This brings me to the example I wish to give. We recently had an order bringing seven designated types of psychologists under statutory control. Before the consultation started on the implementation of the order, the Government had persuaded the British

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Psychological Society that it should agree to statutory control. That was a big judgmental move on the part of the British Psychological Society. It would have come under considerable pressure to make that move because the state system, again as mentioned by my noble friend, is very large, powerful and centralised. It would be a brave council of the British Psychological Society that stood out for self-regulation and common law if the Government wanted it to come under statutory control and the NHS was responsible for giving its members much of their work.

The regulatory impact assessment states that the order was brought in as a matter of modernisation of the regulation of healthcare, to ensure patient safety, to set standards of competence and to maintain and improve public confidence. In the consultation, no questions were asked about modernisation; it was a given. That is to say, statutory control equalled modernisation, in effect. No questions were asked of the people practising about their experience of patient safety, nor about what they thought about public confidence. All the questions they were asked were tailored around the given that this statutory regulation was going to be brought in—after all, the society had agreed to it—and therefore there was no need, I suppose, to seek evidence as to whether what was said in the regulatory impact assessment as the reason for the order was in fact an issue. We all agree that patient safety is an issue, but we need to tie the issue of lesser or greater patient safety to the question of whether it would be achieved by statutory control, or whether it is being achieved perfectly satisfactorily without statutory control.

I sum up by saying that I do not think that making a consultation into a well worked out process is sufficient; there needs to be judgment at every stage.

5.20 pm

Earl Attlee: I, too, am grateful to my noble friend Lord Norton for introducing this Question for Short Debate. I do not often get involved in these issues, but I have a simple question for the Minister. The advantage of Grand Committee is that the Minister has ready access to his officials, who, I am sure, can easily provide inspiration for the Minister’s answer.

A while ago, a Member of another place was asked by the Prime Minister of the time to undertake an inquiry into a matter of public policy of which I had a little experience. The honourable Member wrote to me, asking for my views. I replied in detail, a couple of sides, but it may not quite have been what the honourable Member expected. Some might think that it was unhelpful. It was, indeed, carefully drafted.

The honourable Member misunderstood me and, in a letter to me, suggested that I did not want to make a contribution. I replied, and this is the important bit: “Nevertheless, my letter of”—the date—

I heard nothing more from the honourable Member.

The question is: am I a consultee to that inquiry or not? In other words, should my name have been included in the list of consultees?

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5.21 pm

Lord Maclennan of Rogart: I also wish to express my grateful appreciation to the noble Lord, Lord Norton, for introducing this important debate. However, I also extend my appreciation to the work that he has done prior to this debate to seek to elicit the facts. For he has, through most persistent questioning, raised a number of issues that I hope the Minister will have time to address. I also register my appreciation of how he has himself engaged in consultation on this subject on his blog. I have read with interest some of the letters that he received, which are available, from, among others, M J Ray, James Clark, Dave Briggs and a number of others, all of which express the public interest in what we are talking about.

Although it may appear to be an arcane subject, it seems to be of great importance to the public; not only to those who are specifically targeted by departments for consultation but, more generally, those who are affected, even if not centrally but peripherally. Many are anxious to access the policy-making process and, by participating and indicating their interests, to help to shape our democratic response to policy making.

At a time when Parliament is under something of a cloud for reasons unconnected to the subject that we are debating today, it behoves us all to think carefully about how we can strengthen the sense of public involvement in our processes. I very much welcome the debate on that account.

However, it is not only a matter of importance to the public. It is also a matter of high importance to Parliament, in its legislative process, to know what is happening and why, and how those affected, even indirectly, might feel. With the best will in the world, it is not possible, even for specialists, to rake up all the implications of legislation pouring forth from Whitehall, as it does, at an ever-increasing rate.

I have also noticed with great interest the remarks of the noble Viscount, Lord Eccles, about the work of the Merits of Statutory Instruments Committee. I observed in particular one review, which the committee had conducted, of an order that seemed to speak eloquently of its wider experience and to underline the importance to Parliament of consultation. I refer to the Rent Officers (Housing Benefit Functions) Amendment (No. 2). Order 2008; the review summarised with the concluding sentence:

“We note with concern the very short consultation period on this proposal and the fact that a significant degree of disagreement with the policy remains”.

It is interesting that that particular report follows the committee’s report on the Draft Freedom of Information (Parliament) Order 2009, in which it drew attention to the shortness of time that the Government had allowed it to consider why the order was necessary, what its policy objective was, and what the explanation was for the exceptional hurry that had limited the normal scrutiny process. That order related to the publication of expenses claimed by or paid to Members of either House. The well known rubric, “Legislate in haste and repent at leisure”, is underlined very clearly by these two examples. The Government must take extremely seriously the issue of consultation.

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I add my inquiry to the Minister about the overarching arrangements for ensuring that the code published in November 2008 and which became operative then are available to the public and understood, and that the public are told where to go. It is not at all clear to members of the public where to look for subjects in which they may be very interested; with the constant changing of names of departments, who remembers the particular department responsible for this at the moment is BERR? Many people still think of it as the DTI and would be astonished to discover that there was responsibility within that department.

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