A consultation is a draft statement
If the consultation is the first you hear of it, you are already too late.
“What are we going to do to stop it?”
When the Queen’s Speech promised an Investigatory Powers Bill, I did what a regulatory person is supposed to do. I spent the best part of the next eighteen months on it: briefing internal stakeholders, drafting position papers, and coordinating our responses to the consultations as they came. Then, on 29 November 2016, the day the Bill received Royal Assent and became the Investigatory Powers Act, a senior colleague, one who had been conspicuously aloof throughout the previous eighteen months of internal engagement, turned to me and asked, in complete earnest, “So, what are we going to do to stop it?”
I have never regretted giving up smoking quite so keenly as I did in that moment.
The honest answer was: nothing. It was law. The moment to influence it had closed long before, arguably before I had written a single word.
I tell that story not to embarrass anyone, because the instinct behind the question is entirely human, but because it captures the single most expensive misunderstanding in regulation. People experience a new rule as a sudden event. It almost never is.
Regulation is written years before it lands
The thing that feels like an ambush is usually the tail end of a process that began half a decade earlier. The collapse in fixed termination rates that reshaped operator economics, when the UK moved to a pure long-run incremental cost model, traces back to a European decision in 2009 and only came into force for UK operators around 2013. The same lag runs through the European Electronic Communications Code and through every General Condition that has followed. By the time a rule is news to the business it lands on, it is old history to the people who wrote it.
That is the quiet frustration of the work, and I have said it more than once: the regulation arriving on your desk today is the product of green papers, reviews, and consultations from years ago that almost nobody in your building read at the time.
The consultation is not the opportunity. It is the receipt.
Years ago, green and behind the ears in my first sales job, a mentor gave me a piece of advice that has never left me: never respond to a tender you have not helped to shape. If the first you hear of a deal is the invitation to tender, the specification has already been written around someone else’s product, and you are there to make up the numbers and provide a competitive quote for the file. A consultation is the very same thing under a Regulator’s letterhead.
So here is the part that makes me unpopular on the conference circuit. I have lost count of the number of law firms and consultancies who stand up and urge everyone to “respond to the consultation,” as though that is where influence lives. I have said this to Ofcom directly, and I will say it here: a consultation is, to all intents and purposes, a draft statement. The thinking has been done. The direction is set. The evidence has been gathered, the framing chosen, and the preferred option all but decided. What you are handed is a near-final document wearing the costume of an open question.
That does not make responding worthless. A sharp, well-evidenced response can still move a detail, close a loophole, or occasionally embarrass a Regulator into a genuine rethink. But if the consultation is the first time you engage, you are not shaping the policy. You are marking someone else’s homework, after the deadline that actually mattered. Selling that exercise as “influence” is, at best, selling a comfort blanket.
And silence has a cost that outlasts the consultation itself. No judge is going to thank you for appealing a decision you never bothered to respond to in the first instance. It does not fetter your right to bring the challenge, but your Barrister is going to have to work very hard indeed to keep a straight face while explaining why the point you now consider so vital did not merit a single line when the Regulator actually asked.
Where the leverage actually is
The real work happens upstream, and it is far less glamorous than a consultation response with your logo on the front. It lives in the call for inputs, the discussion paper, the review of the last review, the select committee evidence session, and yes, that single line in the Queen’s or King’s Speech that tells you what is coming eighteen months out. It lives in being a known and credible voice before there is any draft to argue about, so that when the framing is being settled, your evidence is already in the room.
None of this is about cosiness, and it is emphatically not about capture. Regulatory capture, where a Regulator quietly starts serving the interests of the firms it oversees rather than the public it protects, is a corruption of the whole exercise and bad for everyone, incumbents included. What I am describing is the opposite: a regular, open, and frankly rather boring dialogue between the Regulator and the regulated, on the record and grounded in evidence. The Regulator who only ever hears from you when you are objecting has little reason to weight your objection. The one who has heard your evidence, tested it, and disagreed with you a dozen times before is a Regulator who will at least read your next submission properly.
For a scaling business, that comes down to a few unglamorous habits:
Watch the pipeline, not the postbox. The speeches, reviews, calls for input, and originating decisions abroad that will wash up here later tell you far more than the consultation list.
Engage before there is draft text. Once wording exists, positions have hardened and you are negotiating against sunk cost.
Build the evidence early. Regulators move on evidence, and the operator who holds the data before the consultation opens has leverage the one scrambling to respond simply does not.
Treat “we will deal with it when it is law” as the tell that the argument is already lost.
The uncomfortable bit
By the time most people notice a regulation, the cheapest and highest-leverage moment to influence it has already gone. You cannot retrofit eighteen months of engagement into a consultation response, however elegantly drafted. The firms that stay ahead are rarely the ones with the best objections. They are the ones who were reading the pipeline while everyone else was busy running the business, and who understood that “what are we going to do to stop it?” is a question you have to ask years before anyone else thinks to.