Govt gives opposition just two weeks to respond to consultations

15 November 2012 By Sarah Glenister The government's reform of its approach to public consultations could leave sections of society without a voice.

Commentary icon15 Nov 2012|Comment

Sarah Glenister

National Development Officer, Institute of Employment Rights

15 November 2012

By Sarah Glenister

The government’s reform of its approach to public consultations could leave sections of society without a voice.

We recently highlighted that being provided with just three weeks to respond to the government’s proposals on trading employment rights for shares was unusually short, with consultation periods normally lasting 12 weeks. The Institute of Employment Rights was forced to move very quickly to gather the requisite evidence in order to submit a strong and fact-based response, and we recognise other organisations also struggled to meet this extraordinarily tight deadline. Indeed, Unite recently urged the Prime Minister to extend another three-week consultation – on plans to scrap the Agricultural Wages Board and with it the agricultural minimum wage – in order to ensure the union’s lawyers had sufficient time to prove the proposal could be illegal. Unite’s protestations were ignored.

Despite the clear problems short consultation periods are causing, it seems the government not only thinks three weeks is enough time to provide a clear and evidence-based response, but that just two weeks should suffice.

The sudden shortening of consultation periods over the last few months is the result of new guidelines covering calls for evidence and invitations to comment. This overhaul of the government’s approach to consultation was not widely promoted and has passed by many people’s notice, but its implications are serious and far-reaching. Minister are now allowed to provide just two weeks in some instances for interested parties to submit evidence. These new procedures came into effect in autumn 2012.

According to the new guidance, “timeframes for consultation should be proportionate and realistic to allow stakeholders sufficient time to provide a considered response”, but astonishingly it goes on to advise that this “might typically vary between two and 12 weeks”, potentially giving interested groups nowhere near enough time to gather evidence and write a clear argument.

The guidance also seems to suggest that the amount of time chosen for a consultation should depend on how new the ideas being put forward are and the capability of interested parties to submit evidence quickly. However, when it came to an extremely complex proposal like implementing a new employee owner status of worker, ministers jumped at the chance to provide just three weeks to respond. The proposals throw up a large number of issues, such as which rights will continue to be protected under EU law, how shares will be valued and whether employees will be given a real choice over their status as a worker. The implications of introducing an employee owner status are also severe and wide ranging, as workers would be giving up fundamental rights, like the right to claim unfair dismissal. Would this open the door for mass sackings as the employer sees fit?

With such critical issues at stake, we would certainly expect more than three weeks for our network of experts to draw up an evidence-based argument that is strong enough to make our voice heard. Obviously, the Department for Business, Innovation and Skills disagreed, but was this because they were unaware of the wide-ranging implications of their proposals, or because they anticipated strong opposition to employee owner status and wished to put the public at a disadvantage in order to push through their employer-centric policies?

What’s more, the guidance advises Ministers that “in some cases, there will be no requirement for consultation at all”. Pushing policy through without a public consultation has been allowed in cases where “interested groups have already been engaged in the policy making process” and for “minor or technical amendments to regulation or existing policy frameworks, where the measure is necessary to deal with a court judgment or where adequate consultation has taken place at an earlier stage”.

This may seem sensible at face value, but we have recently seen how such a “technical amendment” can have far-reaching implications in the case of the change to Section 47 of the Health and Safety at Work Act 1974, which removes employers’ strict liability for their workers health and safety while at their jobs. The amendment was introduced to the Enterprise and Regulatory Reform Bill at the eleventh hour, just before it went to the House of Lords, so no member of the public was allowed to air their opposition to the policy.

We vote to be represented and to have our voices heard, but it seems the Coalition is interested in neither of these democratic values.

The Lords Select Committee has now issued a call for evidence on the new approach to consultations to inform an 11th December meeting at which Minister for Government Policy Oliver Letwin will be providing oral evidence. The IER will strive to provide a submission to the Lords Select Committee by the deadline of November 30th.

Help support us in our fight against this policy by writing to the Secondary Legislation Scrutiny Committee registering your opposition to the new approach to consultations BEFORE THE DEADLINE OF 30 NOVEMBER 2012 by following the instructions below.

  1. Click here to open an email to the Committee

  2. Copy and paste the below text into the body.

  3. IMPORTANT: Remember to sign the letter with your name, profession and organisation and feel free to amend any of the text you wish.

For the attention of the Secondary Legislation Scrutiny Committee

I am writing to indicate my opposition to the government’s new approach to consultation, in which new guidance states consultations may run for just two weeks instead of the usual 12.

This drastic shortening of consultations makes it prohibitively difficult for organisations and interested parties to gather evidence and submit a clear and considered response to proposals. As such, the new approach to consultation effectively leaves some sections of the public without a voice.

This has been recently evidenced in the cases of two consultation periods that were reduced to three weeks. Responses to the Department for Business, Innovation and Skills’ consultation on “Implementing Employee Owner Status” required a large amount of research due to the far-reaching implications of creating a new status of worker. Three weeks was insufficient for organisations to gather strong evidence of the repercussions to workers, employers, tribunal procedures and any complications with EU law.

Elsewhere, the Department for Environment, Food and Rural Affairs’ “The future of the Agricultural Wages Board for England and Wales, and Agricultural Wages Committees and Agricultural Dwelling House Advisory Committees in England” consultation did not provide enough time for Unite the Union to complete its legal analysis of the proposals, which it was suggested may have been illegal. Where major organisations like Unite are struggling to meet such tight deadlines, smaller bodies with fewer resources are effectively locked out of the consultation altogether.

I believe every consultation period should be 12 weeks long in order to ensure all interested parties, regardless of their wealth or size, are able to provide evidence.

I also do not agree that any previously held public consultations have been unnecessary and thus oppose any change in guidance to ministers that suggests some policies can be legislated on without public consultation. Even where a change to legislation may be described by some as a “technical amendment”, there can be far-reaching implications to UK law.

This has recently been evidenced by the case of the amendment to (s)47 of the Health and Safety at Work Act 1974 that was added to the Enterprise and Regulatory Reform Bill without consultation. This amendment is not simply a technicality but in fact overturns employers’ 114-year-old strict liability for the health and safety of their employees, causing major changes to people’s real-life experience of employment law. The government should have consulted the public before making this amendment.

Finally, I oppose any attempt to restrict responses to digital only. I believe such a move would disempower those without access to technology. I also believe on-line responses allow less flexibility in the way respondents answer the questions.

I urge the Secondary Legislation Scrutiny Committee to rescind the government’s new approach to consultation to ensure the voice of the public continues to be heard in Whitehall.


Sarah Glenister

Sarah Glenister Sarah Glenister Sarah Glenister is the Institute of Employment Rights' IT Development and Communications Assistant.