If a Minister promises a ‘consultation’, is it okay just to launch a ‘call for evidence’?

This is Blog no 68

During the passage of the Energy Bill through Parliament in 2023, Ministers came under pressure to identify and overcome perceived barriers to the further development of  community energy. They promised a consultation on the subject.

Pressure mounted as experienced Peers in the Lords knew how tenuous such undertakings could be. They proposed an amendment to oblige the Department for Energy Security and Net Zero (DESNZ) to go about its consultation sooner rather than later, and to promise to act on the output. Lord Callanan (pictured) rejected this but did confirm in unequivocal terms that “The House can be reassured that we are committed to the consultation and keen to see the community energy sector go forward.”

Scroll forward to April 2024 and the Department publishes. Except it is not a ‘consultation’

It is in fact a ‘call for evidence’.  That is what is said on this particular ‘tin’

In reality, DESNZ itself seems a little confused. It asserts that “This consultation is seeking responses on the barriers to community energy projects in England only.”  It also says “We have co-designed this consultation with the Sector through the Community Energy Contact Group.” This is not strictly accurate as co-design implies the parties both being content with the outcome. I’m not sure the Contact Group was ever happy with the proposed questions.

What is clear is that the authors of this document assume that consultation and ‘call for evidence’ are effectively the same thing. They are not.

Parliamentary Select Committees have used the term ‘call for evidence’ for many years, and it was traditionally used, in part to help its members decide who it might be worth inviting to appear before them and give oral evidence. As such they were usually low-profile and circulated mostly among academics, subject experts and known stakeholders. More recently, they have been used by civil servants at the early stages of policy-making, before any specific proposals have been formulated. The ‘open mind’ phase, maybe.

The trouble with this is that there are comparatively few occasions when there are genuinely open minds. In the political world, few Ministers actually say to their departments. “Do you know what, I really have no views on this subject; why don’t you gather all the relevant evidence, and let’s look at it” A cynic might point out that we are more likely to hear “This is what I think; can you gather as much evidence as you can to support this position?”

When used properly a ‘call for evidence’ can be really useful. Unlike consultation, one can afford to be less precise about its scope and allow coverage of a lot of peripheral issues. It may reach those who might not respond to a consultation and permit submission of immense quantities of genuine research – though that then raises the question of who is there to assess it.

The fundamental difference between the two processes is that consultation provides a range of protections for consultees. If you contribute to a ‘call for evidence’, there are no comparable safeguards.

Unlike consultation, in a ‘call for evidence’:-

• Any or everything may have been pre-determined – and the exercise could be no more than tokenistic window-dressing – designed to give the impression of being evidence-based when maybe it isn’t. (ie Gunning One)
• There is no requirement to provide sufficient (or even accurate) information (i.e. Gunning Two)
• The exercise can last for as long or as short as those calling for evidence determine, and there is no requirement to provide anyone with an opportunity to respond. (i.e. Gunning Three)
• There is no obligation to consider anything that is submitted. Indeed, it is perfectly possible to launch a ‘call for evidence’, to abandon the exercise without telling anyone, and to ignore everything that’s submitted …let alone give them ‘conscientious consideration’ (i.e. Gunning Four)

What gives consultation its unique influence is that it comes with the cluster of rights and obligations – designed to ensure that the process has proper integrity. When you respond to a formal consultation, you know that you are not wasting your time, and that someone, somewhere (and the more precisely defined the better) will read and try to understand what you say. And consider it.

Its other virtue is that it obliges policy-makers to work out their options in detail, to describe them honestly and to prepare defensible impact assessments. When consultation does not materialise, you have to wonder whether this essential homework just has not been done.

And so to community energy.

In a strange way, the downgrading of this particular listening exercise may not matter much in the end. These were not enthusiastic Ministers straining at the leash, desperate to enlist the support and commitment of stakeholders and keen to consider fresh ideas. Rather this was a defensive Government department trying to meet the Minister’s commitment, but anxious not to breach its latest electoral pitch to go-slow on net-zero!

To call it half-hearted would be to exaggerate its dynamism.

Fortunately, the net-zero lobby has long accepted that it is a case of treading water until the General Election and is using its powers of persuasion to ensure a more positive framework for community energy from a fresh administration later this year. In the meantime the ‘call for evidence’ presents Community Energy England and its champions with the opportunity to place its concerns firmly on the agenda of every local authority in the land, and to challenge Councillors and officers to serve their localities with real leadership.

Ultimately, all the various forms of public engagement from ‘calls for evidence’, through Consultation, Citizens Assemblies and all else are but processes – and the better they function the stronger is a democracy. It would just be better if Ministers, Government departments and politicians knew more about the differences between them and were better able to choose what to use and when.

Rhion H Jones LL.B