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The reference in the cover notes that had been put out to going to the Department for Communities and Local Government is also somewhat confusing. Why should that particular department be the source of information across government? In fact, it is not entirely clear, as the noble Lord, Lord Norton, pointed out, that that department is in possession of all the information that is relevant and ought to be available.

In conclusion, I raise an issue that may be very easily answered by the Minister, on the extent to which these rules of the code are enforceable. The document itself—that is, the introduction to the code of practice, setting out the status—expresses the view that the code does not have legal force. Of course, in one obvious sense, that is clear. However, I read with some interest the text of the broadcast by a Mr Paul Greening, who is described as a public participation expert, in an interview that he gave with Radio Free Europe as long ago as 4 March 2003. The interest of this is that apparently he was the member of the Cabinet Office who was invited in 1998, as deputy head of consultation, to be responsible for drawing up the original code in 2000. At the end of his very interesting statement about how the different interests had been weighed up within government, he said:

“There is a public expectation that ministries will follow the Code of Practice. If they do not, according to UK law ... consultations can be subject to judicial review, which means the ministry could be taken to court”.

I wonder if that is the case. Someone dissatisfied might be tempted to try it out, but I should like to hear the Minister’s view on that possibility.

5.30 pm

Lord De Mauley: I join other noble Lords in thanking my noble friend Lord Norton of Louth for drawing our attention to this important area of the legislative process. Consultation is vital to public confidence in our legislative system; indeed, it is a word that we hear often in your Lordships’ House. We on these Benches frequently call for more public consultation in order, as my noble friend said, to increase transparency, to enhance scrutiny and, above all, to allow for legislation to be developed with the confidence that the nation will concur with it because its citizens have been thoroughly involved in its preparation. Therefore, I am sure that your Lordships will applaud the work that has gone into many of these consultations, and that you will approve of the amount of interaction that this allows and the opportunity it theoretically provides for fine-tuning legislation. Indeed, we welcome such improvements as the Government have brought to the process of consultation.

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In 2000, the Code of Practice on Consultation was introduced and, since then, I think that there have been no less than three updated versions. The code seeks to improve the,

Given that there are, I believe, currently more than 30 consultations running in different government departments, it is clearly vital that the process should be under constant scrutiny and subject to continuing improvement.

A number of important matters have been raised in today’s debate but, in view of the hour, I hope that your Lordships will forgive me if I do not refer to all of them. I propose to pick up on three main areas of concern. The first is the over-arching one of the flexibility allowed to government departments under the code. There is no mechanism that I can detect—my noble friend Lord Norton dwelt on this—for ensuring compliance, and no mechanism for checking and co-ordinating what government departments are doing. The noble Lord, Lord Maclennan, said that my noble friend Lord Norton had been assiduous in raising questions on this subject. Indeed, in one such Written Question my noble friend asked:

“How many consultation exercises have been undertaken by government departments since October 2007; and how many of them lasted or are due to last for the recommended period of at least 12 weeks”.

The noble Lord, Lord Carter of Barnes, said in response—indeed, my noble friend has referred to this—that:

“The Government no longer collate data on this. However, the information is put into the public domain each year, as departments are required, in the better regulation chapter of their annual reports, to describe their consultation activity over the year and the compliance of their consultation activities with the code”.—[Official Report, 24/11/08; col. WA242.]

They no longer collate the data. So there we have it. There is no mechanism for checking and co-ordinating and for comparing performance between departments. It is all very well departments describing their own consultation activity once a year but, as my noble friend asked, what independent verification of their claims is made? Perhaps the Minister will be able to address that.

My noble friend’s Written Question also asked how many consultation exercises lasted or were due to last for the recommended period of at least 12 weeks. The response from the noble Lord, Lord Carter, did not directly answer that query. It is that lack of an answer which suggests that a considerable number of consultations might not last for the recommended period. Indeed, the noble Lord, Lord Maclennan, referred to having first-hand experience of direct complaints about this. I, too have had such an experience and so this might be a further example of there being too much flexibility in the system.

My second area of concern is the appearance that the Government are merely going through the motions; that they undertake consultation half-heartedly because they have already decided what they will do; and that consultation is often, effectively, less than genuine. My noble friend Lord Attlee’s experience sounds like a graphic example of this. I strongly suspect that his is not the only example. As a general point, I suggest

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that the emphasis should be towards consultation on the issue rather than on the legislation. By definition, this happens earlier in the process and can genuinely influence the development of legislation before firm positions are taken by the government department on the exact direction that it should take. The Australians have taken some interesting steps in this direction which are worth looking at.

My third area of concern is the complaint that I hear increasingly from the people on the front line, who really have something to contribute to a consultation but are not being made aware that such a process is even taking place. Again, my noble friend Lord Norton spoke of this, as did my noble friend Lord Eccles, who, among other things, took issue—as do I—with the vagueness of the term “stakeholder”. It is true that some good use is being made of technology and details of consultations are indeed being put on official websites. However, this assumes that all people with something important to say in the consultation will know which website to look at and when to do so. Given the huge amount of bureaucracy in which we are all now engulfed, and to which the noble Lord, Lord Maclennan, referred, it is unsurprising that key people miss such consultations. For example, when the consultation on the future of tobacco control was held, not enough was done to increase retailer awareness of it. Retailers were left to find it online, or to request a hard copy from the Department of Health, despite the fact that the provisions were to affect them directly.

That consultation is a very recent example of a pre-legislative inquiry by the Government. It does not meet best practice. We must not allow ourselves to become complacent. The word “consultation” is often bandied about, but we must ensure that we always remember that the word itself is not enough. It is vital that there is substance behind it. Consultation done poorly can do more damage than none at all. The results can, at best, be inappropriate and, at worst, misleading, providing a false sense of security that the legislation has been both widely approved and, indeed, improved. It would be very helpful if the Minister could reassure your Lordships that all future consultations will be conducted with more care and with reference to the Government’s own code of practice on consultation. That code states that,

That is the theory of consultation, but it can only be achieved if the highest standards are maintained. Your Lordships have clearly shown today that you are concerned that those standards are not being maintained. The code of practice also states:

I hope the Minister will take all our comments today in the constructive way in which they are intended and will explain to us how he hopes to improve matters.

5.38 pm

The Minister of State, Department for Business, Enterprise and Regulatory Reform & Foreign and Commonwealth Office (Lord Davies of Abersoch): This has been an excellent debate, which has been greatly

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enriched by the knowledge and expertise that your Lordships have in this area. In preparation, I read the bio of the noble Lord, Lord Norton; I was obviously aware that he was a subject matter expert. I apologise that I have not read his blog. I thank him for tabling the Question for debate. Let me be clear: the Government are committed to effective public consultation that is targeted at and easily accessible to those with a clear interest in the policy in question. This is fundamental to a working democracy. I believe that, later, I will be able to give the noble Lord some good news.

I am delighted to report that our consultation code places the UK in a very small group of countries that are instituting rigorous requirements of this kind. In fact, the OECD praises us on our approach to consultation. We hope that the results—to be published soon—will show that the UK continues to be ranked as one of the best-performing OECD member countries on better regulation.

Your Lordships’ House plays a vital role in influencing and determining legislation as it proceeds in this House and in the other place, and through our Committee work. However, it is also essential that the Government provide their stakeholders with the opportunity to comment both on the direction and the implementation of new policies. We listen carefully to stakeholder views.

What is a stakeholder? It is anyone with a stake in the policy and could include businesses and citizens. On a personal basis, I would define it as those with an interest in the subject matter. We listen to stakeholder views on policy proposals and have a commitment to respond to consultation findings. That, after all, is an essential part of government. We have to be open to the views of stakeholders and be prepared to be held to account by others. Providing citizens, businesses and others with the opportunity to influence policy before it is enshrined in law is more than an academic exercise; it helps us design and deliver better policy outcomes.

In 2007, the Government actually used a stakeholder consultation process to review the code of practice on consultation itself and considered various interest groups and stakeholder views from those who regularly respond to government. We refined and updated the process, publishing this new code of practice last July, but there has to be a sense of continuous improvement. This document needs to be alive and changing. It needs to continuously improve.

There are important principles of the code are that all public consultations should adhere to. It must be timely, clear, accessible and well publicised. Consultations must be introduced early in the policy development process and last at least 12 weeks. Our best practice also includes providing a summary of responses received before or alongside any further action. The code does not, and should not, dictate that Ministers should conduct full, formal public consultations in absolutely every case. It is important to exercise judgment in deciding whether a formal consultation will add value to the policy development.

I assure your Lordships, particularly the noble Lord, Lord Norton, that the Government have strong processes in place to make sure that consultations are carried

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out in accordance with the code of practice. Each department has a consultation co-ordinator to ensure that consultations are run in line with the code, and officials from the Better Regulation Executive in my department monitor and challenge other departments on their compliance with the code as policies develop. I hope that that reassures the noble Lord, Lord Norton. I agree with the noble Lord that consistency on disclosure is required. The BRE engages where necessary during that whole exercise through the Cabinet clearance process to make sure that there is challenge. BERR is responsible for cross-Whitehall better regulation.

The Government are also committed to make the consultation process transparent to public scrutiny. Consultations are published on departmental websites and publicised to all interested stakeholders. I am glad to say that I am the bearer of good news: by the end of this year, it will be possible to search for all central government consultations. The Cabinet Office central index did not pick up all new consultations because it relied on all departments marking up their electronic documents in the same way. The BRE, with the Directgov team, is now simplifying the process. The Government are confident that by the end of 2009, all consultations will be available and searchable on Directgov. I am still coming to terms with Directgov.

Government responses must be published before or alongside the next significant step in policy development. Consultations must cite the seven criteria of good consultation. They must include contact details for the departmental consultation co-ordinator. Departments must describe their consultation activity over the year and the compliance of their consultation activities with the code in the better-regulation chapter of their annual reports. Good consultation is embedded within my own department where we look very carefully at how policy choices, at all stages of their development, will affect business and the economy. I am proud to say that BERR’s 2007-08 annual report showed that 44 out of 45 consultations held by the department were fully compliant with best practise.

There is strong evidence across government that we are following best practice in consultation. I can give two examples. Earlier this year, the Government were setting out proposals making it compulsory for farmers to keep set-aside land, a former EU requirement. Working with key stakeholders, even prior to the publication of the consultation document, the Government recognised that a voluntary approach to the regulation would achieve the same outcome. The National Farmers’ Union preferred a voluntary solution, as a more regulatory option would impose policy costs of between £61 million and £135 million. The NFU predicted that the voluntary solution it proposed would cost farming businesses only £250,000. The Government therefore modified their approach in response to the NFU’s view.

In the interests of time, I shall not mention the other examples, but we believe that the Government have effectively consulted and listened to our stakeholders on a wide range of issues.

Lord Maclennan of Rogart: The department to which he referred, Defra, was one of those with the least good record of compliance. There were no fewer

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than 13 cases out of a total of 81 in which they did not allow the minimum amount of time of 12 weeks. In one case it allowed two weeks, in several it allowed four weeks and in others eight weeks. I do not think that is a particularly strong example of the Government’s success in promoting the code.

Lord Davies of Abersoch: I do not have time to consult, so I shall reply in writing. In any consultation it is important—there have been a couple of questions on this—to reflect on the weight of the evidence. Should we list all the individuals? It is not possible to provide departments with guidance on the weighting of responses. How does one compare a response from a citizen with a response from the CBI, from a huge lobby group or indeed from Greenpeace?

Consultations are not votes; they are exercises in gathering evidence on which to base decisions. The new code does not require departments to list consultees, but it is important that all of them, including the letter of the noble Viscount, Lord Eccles, are considered. That is absolutely part of the code.

The British Psychological Society was mentioned and the specific consultation. We shall need to respond to that later in writing. I hope that everyone is reassured that the Government take consultation very seriously. I hope that I have covered most of the points made during this interesting debate. Due to the limited time available, I shall reply in writing to any issues or comments which I have not covered.

Earl Attlee: Mine was a very simple question. I hope that the Minister will find time to answer it.

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Lord Davies of Abersoch: If the simple question is whether we would list every name, the answer is no: we would not. Clearly, all the evidence that we receive has to be considered and analysed and it has to be put forward as part of the consultation. As I said, we do not list everyone who has written in or responded, as that could be many hundreds of thousands of people.

Earl Attlee: I was talking about the specific circumstances where an MP wrote directly to me—“Dear John, I have been tasked by the Prime Minister to look into this matter”—and the circumstances were exactly as I have described. Should I or should I not have been on the list of consultees?

Lord Davies of Abersoch: I will look at this particular case and write to the noble Viscount.

Earl Attlee: Earl.

Lord Davies of Abersoch: Noble Earl. The Room is full of Viscounts and Earls, as my predecessor in the previous debate said.

It is important that we take account of all consultations and of everyone who has written in. I have no idea what happened in the noble Earl’s case and I shall respond in writing to him.

Finally, I thank the noble Lord, Lord Norton, for bringing forward this matter for discussion.

Committee adjourned at 5.50 pm.

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