Considering Consultations

Craig Dalzell

I hope, given the increasingly impressive contributions of my colleagues, that my absence from last week’s newsletter was not a notable one and that I’ll be forgiven for it. I think that’s the first time since we started this weekly publication that I’ve missed a deadline for reasons that weren’t illness or being on holiday (and sometimes even they weren’t an excuse!). Last week though, I became a little overwhelmed with an important part of my role as Head of Policy where I feed into Scottish Government (and, very occasionally, UK Government) public consultations – distilling our policy papers and principles and attempting to shape Government legislation directly.

The number of consultations coming out of the Scottish Government has been increasing in recent years – not just as part of the normal statutory duty that every piece of legislation is open to public scrutiny but there’s also been a conscious decision by the Government to publish more “calls for evidence”, “calls for views” and other forms of consultation. Last week on the Scottish Government’s Citizen Space consultation board there were 17 open consultations of various kinds – at least eight of which were directly pertinent to Common Weal’s interest areas and four of which we managed to respond to. As of the time of writing, ten consultations are open. This does not include other consultations such as those created whenever an Opposition or other MSP pushes a Members’ Bill (such as the several successful recent Bills on pushing for a Rent Freeze, on increasing building standards or, as I shall get to later in this article, on Freedom of Information).

Now, you may ask, why should we be concerned with this kind of overwhelm? Shouldn’t we just “stick to our lane”, respond to the consultations we’re interested in and not bother about the rest?

Well, given that Common Weal is not merely a think tank that looks at one issue like “housing”, “energy”, or “care” but applies our All of Us First philosophy to all of these areas and more, our lane is as broad as it is deep. But more importantly, if consultations are supposed to be exercises in public engagement, then we must expect the public to be able to engage with them – not just professional policy wonks like myself. The danger of being overwhelmed is that many consultations slip through the net and end up being captured by lobbyists of another kind. I remember well one instance in 2017 where a consultation on cutting airport taxes was responded to overwhelmingly by the airport industry. In fact, the only organisational responses to that consultation that weren’t linked to airport or airlines were Common Weal and RSPB.

As it stands, even we can’t keep up with the flood of consultations with the resources we have. If our supporters decided to fund us to hire someone whose sole job was to respond to consultations (poor sod) then I doubt they could keep up either. Anyway, I can think of far more exciting campaigns we could mount with that money so if you’d like to see us do that instead, help us make it happen!

We are where we are for now though and I did manage to submit our responses to several important consultations last week. We’ve published all of them over on our policy library but now is a good time to introduce each of them and show you precisely how we’ve been trying to influence government.

Freedom of Information

This is actually two consultations. Last year, Labour MSP Katy Clark launched a campaign and a Members’ Bill to extend FOI legislation so that it covers private companies who use public money. The idea being that if a public body is providing an “in-house” service that can be scrutinised by FOI then they shouldn’t be able to dodge that scrutiny by privatising it. One illustration being to imagine a Local Authority care home that operates under FOI legislation compared to a private care home whose sole client is the same Local Authority. The latter is currently immune to FOI requests.

The result of the campaign was that it became very clear that if the Scottish Government opposed the Members’ Bill, then they’d – rightly – be accused of trying to hide behind secrecy but there was a calculatedly political move that said that the SNP couldn’t be seen to be led by the “mere” opposition so instead of supporting the Bill, they’ve launched their own that does the job instead. Both Bills were opened to consultation and we’ve responded to them calling for the same thing. For FOI to be extended as described, for there to be a statutory duty to publish FOI requests in a central database and, longer term, to move to a “Glass Wall” principle whereby we no longer need to rely on folk asking the correct question to ensure transparency – all information that could conceivably be open to FOI should instead be proactively placed in the public domain.

Ending the Sale of Peat

I’ll be honest, this is just about the most no-brainer consultation I’ve responded to yet. Just from a political point of view, England and Wales have already signalled intention to ban the sale of peat compost and other products so for Scotland to not follow would be illogical and more trouble than it’s worth. It’s a no brainer from an ecological standpoint either and even august stalwarts of the gardening world like Monty Don have reversed their previous support for peat products. My one concern with the proposed legislation here is that it seems to be that it is coming from a narrow and ad hoc position rather than a more fundamental framing of sustainability. All products in Scotland must be transitioned from a linear to a Circular Economy and it’s quite clear that a non-renewable (on a human timescale), increasingly scarce resource like peat that cannot be extracted without massive environmental harm has no place in said Circular Economy. It should be banned for that reason.

The Draft Energy Strategy and Just Transition Plan

This was a monster of a consultation but I really wish it was better than it was. We’re four years to the week since the Scottish Government declared a climate emergency and we’re now just one or two Parliamentary elections away from reaching the deadlines set by the IPCC to have started making substantial, meaningful and permanent changes to our society to avert and prevent catastrophic climate change. This energy strategy therefore represents perhaps the last chance to do a systematic review of current policies, find the shortcomings and build a plan to make up the gap and actually meet our climate obligations.

Unfortunately, it mostly just does the first thing. Very little is truly new in the plan and the policies themselves are presented in an ad hoc manner with little strategic thinking drawing them together – particularly in the linkages between them (for instance. What impact will home insulation targets have on Scotland’s future energy demand, thus how much extra spending will failing to meet those targets create for energy generators and associated infrastructure?)

It is particularly disappointing to see that the “Just Transition” part of the plan is relegated to an annex at the end of an already lengthy consultation. This is both a topic worthy of consultation in and of itself and one that should be so fundamental to energy strategy that it is woven throughout it, not considered an afterthought. If the Scottish Government continues to treat workers the same way that their employers do, the transition will be anything but Just.

Freeports and Devolved Tax Cuts

The final consultation on this list is one that I’m sure may have slid under the radar of many but will be of great interest. If you’re reading this, you’ll probably know that Common Weal have been keeping a close eye on the development of Freeports in Scotland. This scheme – spearheaded by the UK Government but supported north of the border by the Scottish Government – will, if they operate anything like any other Freeport that has ever been tried, erode workers’ rights, suppress wages and undermine the Scottish economy without providing much in the way of benefit that couldn’t be achieved in another way. This model in particular will create huge administrative and customs burdens – far more complex than experienced in Northern Ireland due to Brexit – or will cause untaxed and unregulated goods to leak into the domestic Scottish economy with no way of stopping them.

It would be one thing if the Scottish Government was opposing these tax havens even if the UK Government imposed them against our will but they seem instead to be actively supporting them and this consultation is the first of several proposing which tax cuts the Scottish Government should offer to these zones. They are proposing to offer full or partial relief to Land and Building Transaction Tax for properties purchased for Freeport activities. I discuss the impact of the Freeports in this week’s Policy Podcast via a rebroadcast of a talk I gave to Global Justice Now on the topic.

There’s a trap in this particular consultation though. It’s not actually asking the public if we support these tax cuts (for the record, we don’t – the Scottish Government should consider increasing devolved taxes on Freeport business to compensate for the UK Government’s push for more tax avoidance and the damage it’ll cause to the economy and to public services). Instead, it is presenting the legislation as written and asking us if we think they will result in the tax cuts they’ve proposed. That’s not our job. This is a job for the drafting clerks in the Parliament – not for the general public to check to make sure there are no inadvertent loopholes in a tax cut that the Government as already plainly decided that they’re going ahead with without our consultation.

This had better not become a pattern for the Scottish Government. It is our job to tell Government what to do, not merely to check their spelling in legislation to make sure that they do it. If Government really wants members of the public to do that, then it should support our campaign for a Citizens’ Assembly to act as a formal Upper House and Revising Chamber for the Scottish Parliament.

Let me know what you think of our work to scrutinise and lobby the Government through consultations. Even if you think we’ll just be ignored, should we keep submitting these responses so that when we lobby in other ways, we don’t get shrugged off for not engaging? Do you think the Government should offer more support for members of the public to understand consultations and get their views?

I’d also like to end by commending the sterling efforts of Simon Jones and the consultation club he founded for our activists to teach them how to respond to consultations and to encourage them to do so. The club is on hiatus for now, but sincere thanks to him from all of us for the work he put into it.

5 thoughts on “Considering Consultations”

  1. Bill johnston

    This is an important issue for democracy and needs analysis to tease out any hidden agendas as well as the stated purposes of specific consultations.

    Like you I keep an eye on the listings and occasionaly respond. If any body takes any notice I couldn’t say. Teasing out the impact of contributions would be difficult but perhaps SG could provide a few worked examples of their processes? Perhaps highlighting what it is about contributions that make a difference beyond simple quantification of kinds of response. Maybe show how any criteria are deduced and applied? Is there any bias in favour of sympathetic contributions?

    I’ve also noted that consultation seems to be key aspect of governance for SG and I think you are correct that it has been a growth industry, which may lead to scepticism about motivation. It should also lead to a positive move to analyse the methods and nature of the effort.

    On another tack I wonder what are the relationships between public consultation exercise and the efforts of professional lobbyists and other interested parties? My starting assumption is that the organised influencers start with an advantage but I might be proved wrong.

    So. In addition to following up particular consultations I think there is scope to create an analytical overview of the territory of consultation, lobbying potential policy capture and other dimensions of this important aspect of Scottish democracy.

    Any friendly academics out there who might have insights to share?

    All the best,


  2. Frances Corr

    Yes I think the SG should do a lot more to publicise it’s consultations, whenever I mention them to anyone nobody’s aware they exist. Also having so many at once is impossible to keep up with. Both of these things make you wonder if the SG are that bothered. Citizen’s Assemblies would be a great development in addition to properly run consultations. In the meantime you’re doing a grand job and yes I think it’s worth continuing, certainly for the most appropriate ones if possible.

  3. Has the Scottish government ever abandoned a proposal as a result of an overwhelming negative response to a consultation? Thought not.

  4. Mary MacCallum Sullivan

    There’s a trap in all this tsunami of consultation. For some years, I tried to engage in good faith with these SG consultations, but soon found it took massive amounts of time to understand the thrust of the questions, which so often, as you say, Craig, ‘is presenting the legislation as written’ and asking us to mark their efforts, rather than allow for constructive feedback that will be listened to; that doesn’t seem to be happening, across a range of SG legislation.

    So it is already a pattern for the Scottish Government. ‘If Government really wants members of the public to [be active participants in the work of legislation], then it should support our campaign for a Citizens’ Assembly to act as a formal Upper House and Revising Chamber for the Scottish Parliament’. This must become a rising demand; it is clear that a second chamber is urgently required to create more robust legislation, and this is the second chamber we should be demanding.

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