House of Lords
Health: Hydrotherapy
Baroness Thomas of Winchester
To ask Her Majesty’s Government whether they have commissioned any research into the benefits of hydrotherapy for people with progressive conditions.
Baroness Northover
The health technology assessment programme has published research on the effectiveness of hydrotherapy for lower-limb osteoarthritis and for juvenile idiopathic arthritis.
Baroness Thomas of Winchester
I thank my noble friend for that Answer, which seemed rather brief and limited in its scope. I would like the Minister's advice about how those concerned with this question could persuade the National Health Service of the benefits of ongoing hydrotherapy for people with progressive conditions who will never fulfil the criterion of a positive outcome that one might have with a broken leg. I am thinking in particular of boys with Duchenne muscular dystrophy. The sad truth is that hydrotherapy in this country is better known as a treatment for horses and dogs than for people.
Baroness Northover
Surely not. My noble friend has done a great deal herself to promote the potential psychological and physical benefits of hydrotherapy, and I am sure that she will continue to do so. Following her conversations with me over the past week or so, and at her request, I have sought for her and for other noble Lords with an interest in this area a meeting with the relevant Minister in the Department of Health, my honourable friend Anne Milton. That has been agreed and therefore I hope that the noble Baroness and others will be able to take this further forward.
Lord Walton of Detchant
My Lords, is the noble Baroness aware that the All-Party Parliamentary Group on Muscular Dystrophy last year carried out a major survey of facilities across the UK for patients with Duchenne muscular dystrophy—to which the noble Baroness referred—and discovered that boys with that very serious progressive disease who live in places like Newcastle, Oxford, London around Queen Square, and Oswestry, survive into their 30s and sometimes even their 40s, whereas in other parts of the UK they still die in their teens? There is evidence that in the rehabilitation of these patients, hydrotherapy plays an extremely important role. What efforts are the Government making to make certain that this form of treatment, which is invaluable, becomes more widely available across the United Kingdom?
Baroness Northover
My Lords, I am well aware of the report in the name of the noble Lord, Lord Walton. It is a most impressive report that had an effect on the then Government. We are doing our best to take that forward. One thing that struck me when I looked at the research in this area was its paucity. The Department of Health can do so much, but clinicians can do a lot more. It is worth bearing in mind that the use of hydrotherapy is a matter for clinical judgment. By and large, clinicians and patients must take this forward. Therefore, it is very important that clinicians undertake research with larger groups of patients than has been the case heretofore. Anything that the noble Lord can do to promote that would be extremely welcome.
Baroness Thornton
My Lords, I say to the Minister that this is also a matter of resources. Is she aware of the potential benefits of hydrotherapy for people with long-term conditions, such as stroke, Parkinson’s disease and multiple sclerosis? How will she ensure that hydrotherapy treatment is both continued and expanded for key groups when funding is transferred from PCTs to GPs, and how will the Government support GPs in the effective commissioning of these expensive rehabilitation and reablement treatments for people with these long-term and progressive conditions?
Baroness Northover
As the noble Baroness will recognise, the provision of this treatment up and down the country has been an ongoing problem. It is something that the previous Government tried to tackle, and the emphasis then, as now, was very much on local decision-making. However, the national commissioning board will be looking at the provision of specialised services and will try to ensure that, where there is this kind of need for a small group of patients, provision is catered for. At the moment, as the noble Baroness knows, the Department of Health is assessing the results of the consultation on the White Paper, which has just closed, and proposals on specialist commissioning will be brought forward. However, it is extremely important to recognise that this is not a new problem and it is not an outcome of the proposed changes.
Lord Campbell of Alloway
My Lords, perhaps I may ask a very simple question. Are no steps to be taken until we have a report from various quarters? What is the position? We have heard a lot but I cannot understand what is to be done.
Baroness Northover
I apologise if I have not been clear, and I shall try to be clearer. PCTs currently commission locally for hydrotherapy. Physiotherapists decide whether their patients need hydrotherapy and, if they or clinicians recommend that that is what the patients need—and in many cases it is not advised because there could be infection, balance or other problems, so it is not ideal for all patients—the PCT commissions the treatment locally. That will continue to be the case, as it will under GP consortia but with the umbrella protection of ensuring with the commissioning board that specialist care is not squeezed out by an emphasis on what the majority need locally.
Baroness Finlay of Llandaff
My Lords, as the Government are establishing an outcomes framework for the delivery of treatments, are they looking specifically to have a very flexible and alternative model for those with long-term conditions which takes account of the benefits in terms of both quality of life and welfare, and which also takes account of the avoidance of problems such as the earlier onset of contractures in those with neuromuscular disorders or neurological damage?
Baroness Northover
I thank the noble Baroness for that question as it enables me to point out, as she will know, that one element of the proposed NHS outcomes framework is enhancing the quality of life of people with long-term conditions. That is relevant here—it is not just a matter of seeing whether someone’s leg mends after it has been broken. I heard from my noble friend about the experience of the noble Baroness, Lady Campbell, and about the psychological benefit to her of having hydrotherapy. It is not simply a matter of physical benefit; there is also a psychological benefit.
Sport: Rugby League World Cup 2013
Lord Hoyle
To ask Her Majesty’s Government what financial contribution they will make to the Rugby Football League in respect of the Rugby League World Cup 2013.
Lord Hoyle
My Lords, I seek permission to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as president of Warrington Wolves Rugby League Club, winners of the Rugby League Cup at Wembley in 2009 and 2010.
Baroness Garden of Frognal
My Lords, the Government are committed to staging the greatest sporting events in the world and the Rugby League World Cup is among them. The coalition agreement makes clear our commitment to the success of the Rugby League World Cup and we are working with the Rugby Football League to that end. Our proposals include financial underwriting comparable to that offered to the Rugby Football Union for its 2015 World Cup.
Lord Hoyle
My Lords, I thank the Minister for that constructive reply. Will the Government underwrite the Rugby League World Cup to the extent that it was underwritten by the regional development agencies under the previous Government; namely, to the sum of at least £1.5 million?
Baroness Garden of Frognal
My Lords, I pay tribute to the noble Lord for his expertise and his longstanding support for Rugby League, as he has already demonstrated to the House. He refers to a letter from my honourable friend Hugh Robertson. In fact, the Northwest Regional Development Agency contracted with the RFL to provide £1 million to support staging the event in exchange for a specified number of games taking place in its region. Due to the abolition of the RDAs, that position is under review. The RDAs have not yet operated their break clause, so the expectation is that at least £500,000 will be honoured, and potentially the full amount. That will be in addition to the Government’s offer of support. In the interests of brevity, I shall not go into the details of that at this stage.
Lord Prescott
My Lords, what is the thinking that justifies 40 times the amount of money for a Rugby Union Cup Final as opposed to a Rugby League Cup Final and World Cup Final? The RDAs were offering £1 million, but the Government are now abolishing them. Is not the reality that the noble Baroness belongs to a department that does not have an elected northern member in it, so reflecting the north-south issue, with, once again, disadvantage to the north?
Baroness Garden of Frognal
My Lords, I thank the noble Lord. As the daughter of a Lancastrian and a Durham mother, I may possibly stand for the north, but that is perhaps a little far-fetched. The noble Lord mentions the difference between the two fees. The tournament fee for the Rugby Union World Cup was part of the commitment demanded in the bidding process, but there was no such tournament fee for the Rugby League World Cup. In the interest of fair treatment, the Government have said that the underwriting should be pro-rata, with a provision of up to £625,000 should the event not make the projected £2 million profit. That has been agreed with the Treasury and needs to be formally agreed by Parliament. The Rugby League Board is still considering the proposals made by the Government and we await its response, probably early in December.
Lord Mawhinney
My Lords, as regards world sporting events, I declare an interest as deputy chairman of England’s 28-team World Cup bid. I thank my noble friend and, through her, the coalition Government, for their willingness to support the guarantees which FIFA required and to which, in all fairness, the previous Government also signed up, to enable our bid to be made. I also thank the Prime Minister for the very active and personal support which he is giving to the bid, the decision on which will be made next week.
Baroness Garden of Frognal
My Lords, I thank my noble friend for that very constructive and helpful question. I assure him that the Government remain fully behind England’s 2018 bid and will continue to support the bid in any way possible in the build up to FIFA’s decision on 2 December.
Baroness Billingham
My Lords, perhaps I may press the Minister further on this matter. We have listened with great interest to her thoughtful replies. Is there not a moral obligation here? We have a situation in which the Rugby League organised sponsorship of £1 million from the RDA and then the RDA is swept away and it is left without support. In those circumstances, I should have thought that the Government, as perpetrator of the sweeping-away, would immediately step in and say, “We will fully underwrite it”—not half of it. I think the Minister must take this back to the DCMS and press much more firmly for fair treatment for a very important sport.
Baroness Garden of Frognal
My Lords, at the risk of incurring the wrath of noble Lords opposite, I repeat that we are not in such pleasant financial circumstances that we can honour all sorts of commitments across the board. The noble Baroness comes up again with the parity of treatment. We recognise that Rugby League and Rugby Union are two different codes of the sport. We are aware that they have some common interests and indeed they have swapped players, although not always highly successfully. The coalition agreement explicitly commits to parity to ensure that the 2013 Rugby League World Cup and the 2015 Rugby Union World Cup are successful.
Lord Addington
My Lords, does my noble friend agree that to say that it is a north-south divide is flying in the face of the work of the Rugby League, which has spent god knows how many years trying to penetrate the south to get a participation base? Should it not be encouraged to continue doing so and should not people be encouraged to get out of their laagers?
Baroness Garden of Frognal
I thank my noble friend for that—in rather more robust language than I would have used. Indeed, Rugby League has a tremendous lot to commend it as a sport. It would be ideal if it could penetrate the south of the country as much as the north. It is a parallel sport, if you like, to Rugby Union, and both codes of the sport should be equally supported and have equal merit.
Lord Brooke of Alverthorpe
Would the Minister confirm—I welcome this—that £25 million of underwriting is going into Rugby Union but that for Rugby League the amount is only £625,000, which is substantially less than the amount of money that it sought from the RDAs to put in its bid for the 2013 Rugby League World Cup? Will she say why there is such a wide variation? She used the phrase “parity of treatment”. Will she define what the parity of treatment is because, prima facie, it does not look like fair treatment, especially given that the £25 million underwriting for Rugby Union has not changed, yet that for Rugby League has?
Baroness Garden of Frognal
The noble Lord will be aware that the systems for putting in bids for Rugby Union and Rugby League are different and the government response is in proportion to the requirements for both those bids.
Lord Glentoran
Does my noble friend agree that sport across the kingdom and school sport are being seriously cut? Why are these large sums being put forward for very rich and popular sports?
Baroness Garden of Frognal
My Lords, school sport funding is a debate for a different occasion. However, I assure noble Lords that this Government are fully committed to sport in schools.
Baroness Garden of Frognal
I assure noble Lords that we are, and when the detail of the proposals that are being put forward for sport in schools comes out, I hope noble Lords will agree that there will be all sorts of opportunities for young people across the country to participate in competitive sport.
Immigration: Home Office Procedures
(14 years, 1 month ago)
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Baroness Gardner of Parkes
To ask Her Majesty’s Government whether they will review the procedures and paperwork required by the Home Office from applicants for immigration or residential status.
The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, online forms containing guidance have already been introduced on the UK Border Agency website to make things easier for applicants. Next year, tier 4 student applicants, which comprise the largest category, will be able to create their own customer account to assist them to complete their online application, pay for it and view its progress. All immigration application forms will be available online by 2015, and the aim is to simplify and clarify application procedures in all categories.
Baroness Gardner of Parkes
I thank the Minister for that reply. My question relates to long-term residency in the UK, and I declare an interest in that I have had the right of abode for many years and have been here for 50 years. Why were new regulations introduced in 2006 requiring everyone to resubmit documents? In 1985 I had a letter saying that no repeat would ever be required, but in 2009 I was told that I must resubmit all originals. I am getting the same complaint from many people. Will the Minister also comment on the Canadian lady who, just this week, after 60 years in the UK, was stopped at the airport as an illegal immigrant?
Baroness Neville-Jones
My Lords, the aim of the 2006 regulations, which were brought into effect by our predecessors, appears to have been to cut down on fraudulent claims to the right of abode by ensuring that the validity of the certificate of entitlement which applicants have to have was limited to the lifetime of the passport to which it was attached. Requiring new certificates of entitlement enables a further check on the genuineness of the eligibility to take place. As regards the Canadian lady, on the basis of the press reports—and I have no other information—it would appear that this lady, who was allowed into the country, will be able to claim her right of citizenship through descent. I think that she will have no problem in doing that, and of course she will not have to pay.
Lord Avebury
My Lords, will my noble friend put copies of all the paperwork in the case of Anwar and Adjo in the Library, including the judgment of Lord Justice Sedley in which he said that “a shameful decision” had been made—the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer? Lord Justice Sedley went on to request that the misuse of the powers of one of the great offices of state should be drawn to the attention of the Home Secretary. Has that been done, and what remedies is the Home Secretary providing for this misuse of powers?
Baroness Neville-Jones
My Lords, I am afraid that I am not familiar with this case, which obviously the noble Lord is interested in, in detail. I will write to him.
Lord Pearson of Rannoch
My Lords, have the new Government amended the guidelines which the last Government gave to immigration officers instructing them to allow the second, third and fourth wives of Muslim men, together with their attendant children, to live in this country,
“even if that sets up a polygamous marriage in the United Kingdom”?
Baroness Neville-Jones
My Lords, I am afraid that I am not familiar with that provision. I understand why the noble Lord is asking the question; I fear that I will have to look into the matter and perhaps write to him.
Lord Hylton
My Lords, as regards asylum applicants—which is a part of this larger question—is the noble Baroness aware that the UK borders authority operates a dispersal programme and system? Will she encourage it by all possible means also to disperse its centralised Croydon office to the regions so that applicants do not have to travel huge distances at great inconvenience for their principal interviews?
Baroness Neville-Jones
My Lords, is this in relation to passport applications? Is that the question the noble Lord is asking?
Baroness Neville-Jones
My Lords, I will have to see what can be done. This seems rather distant from the original Question.
Lord Hunt of Kings Heath
My Lords, can the noble Baroness answer this one? She will be aware that, a few months ago, the previous Government published a draft Bill on simplifying the immigration law. Contained within it was a proposal on information, to bring together piecemeal powers to require and supply information through specific gateways. Will the Government be taking that forward?
Baroness Neville-Jones
My Lords, I am afraid that I do not know. You will have to wait and see.
Lord Phillips of Sudbury
My Lords, I express an interest as a lawyer whose firm does a lot of immigration and asylum work, and I preface my question by saying that what I have to ask has no effect on the numbers coming in. As my noble friend the Minister will know, the previous Government tried their best to simplify the procedure for those applying for immigration and asylum and to move to a points-based system. The situation now, however, is that the questionnaire that applicants have to fill in is 60 pages of technical, concentrated stuff. If they get any aspect of it wrong, they fail. Legal aid is being withdrawn for asylum. Will my noble friend at least review the questionnaire process in order to simplify and clarify it?
Baroness Neville-Jones
My Lords, we should try to make these procedures as comprehensible, simple and clear as we can, consistent with having to acquire the correct information. We will see what we can do.
Abattoirs: CCTV
(14 years, 1 month ago)
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Lord Greaves
To ask Her Majesty’s Government whether they will encourage or require the installation of closed circuit television cameras in abattoirs.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)
My Lords, we recognise that CCTV can play a role in helping slaughterhouse operators monitor welfare and we welcome recent industry-led initiatives to install CCTV on a voluntary basis. We have no powers to require CCTV installation in abattoirs.
Lord Greaves
My Lords, I thank the noble Lord for that half-helpful Answer. Has he seen the appalling CCTV images which have been put on to the internet by the charity Animal Aid, and does he agree with Tim Smith, chief executive of the Food Standards Agency, that they are,
“sickening … It doesn’t really matter how this footage was obtained or how it came into our presence”?
He went on to make it clear that what is important is that something should be done about it. Will the Minister join me in congratulating Morrisons on agreeing to install CCTV in the three abattoirs it owns and controls, including the Woodhead Bros abattoir, which is a major employer in the Lancashire town of Colne where I live.
Lord Henley
My Lords, obviously I offer my congratulations to Morrisons because we would encourage all owners of abattoirs to install CCTV if that is necessary. However, I stress to my noble friend that although I have not seen the film, we do not condone animal cruelty of any sort. We will ensure that all allegations of the ill treatment of animals are fully investigated and, where necessary, prosecutions are made.
Lord Pearson of Rannoch
My Lords, if that is so, should not those of us of the Christian culture, with our attendant laws for animal welfare, understand the practice of halal slaughter, and also be told when we may be eating that meat and therefore supporting the practice?
Lord Henley
My Lords, I believe that that is another Question, but I can say that we have no plans whatever to make the practice of halal or kosher killing illegal. However, we think that it is worth considering the appropriate labelling of all meat so that people know exactly what it is that they are eating and how the meat has been killed.
Baroness Parminter
My Lords, given that Defra recently refused to prosecute practices which seemed to be contrary to the law on the grounds that the evidence had been illegally obtained, can the Minister inform the House how, without mandatory CCTV, slaughterhouse enforcement can be improved?
Lord Henley
My Lords, there are many factors other than compulsory CCTV; it is important to have vets working in all abattoirs and for inspections to take place at an appropriate level. I can assure my noble friend that any decision on whether to prosecute will be taken by independent prosecution lawyers; Ministers have no say in it. In the case that my noble friend refers to, the independent prosecution lawyer took into account previous court decisions which make it clear that evidence which has been unlawfully obtained cannot be used and will be excluded in such cases.
Baroness Quin
My Lords, given the alarming footage referred to by the noble Lord, Lord Greaves, and the disturbing report in the Independent last Friday, can we have an assurance that despite the decision made on court proceedings, not only will Defra’s commitment to animal welfare be reinforced rather than weakened, but the cuts imposed by the Department for Communities and Local Government will not impact on the ability of local authorities to carry out their important animal welfare role in monitoring abattoirs and markets?
Lord Henley
My Lords, of course they will not affect the role of local authorities in that regard. What is important is that Defra, through the Food Standards Agency, will continue to make sure that abattoirs are operating carefully, and we will make sure that appropriate funds are available for that. We are also going to consult on whether we should look to a full costs recovery scheme for the costs of monitoring what goes on in abattoirs, but obviously that is something which has to be discussed with the industry.
Lord Palmer
My Lords, given that the coalition Government have made it quite clear that the noble Lord’s department in particular wishes to cut red tape, insisting that every abattoir has CCTV would surely go against its principles.
Lord Henley
My Lords, we have no power to insist that every abattoir should have CCTV, and that will be made even clearer when the latest EU regulation, Regulation 1099/2009, comes into effect. We will continue to encourage all abattoirs to install CCTV, but that is only one method of ensuring that appropriate monitoring takes place. There are other tools that can be used.
Lord Mackenzie of Framwellgate
My Lords, given the evidence that CCTV prevents and detects crime on the streets, can the Minister explain why the coalition intends to reduce coverage on the streets by CCTV?
Lord Henley
My Lords, that is a completely different question from the one on the Order Paper and has nothing whatever to do with slaughterhouses.
Lord Tebbit
Can my noble friend tell me whether the European Union has power to enforce CCTV in abattoirs?
Lord Henley
My Lords, my understanding is that the new regulation to which I referred—EU Regulation 1099/2009, which was agreed under the previous Government’s administration and came into force in 2009—constrains the use of national rules and would prohibit government action to require compulsory installation of CCTV in the future.
Lord Dykes
Can the Minister enlighten the House by saying how many prosecutions of abattoir operators there have been in the past five years?
Lord Henley
I cannot give a precise figure. However, I can assure my noble friend that there have been prosecutions since the current Government came into office.
Arrangement of Business
Baroness Anelay of St Johns
My Lords, immediately after the debate on the second group of amendments on the Public Bodies Bill, my noble friend Lady Neville-Jones will repeat a Statement on controlling migration.
Lord Bassam of Brighton
My Lords, in connection with the business of the day announcement which the noble Baroness, Lady Anelay, has just made on the Statement on immigration, I bring to the attention of the House what we believe to be a serious matter in relation to the Savings Accounts and Health in Pregnancy Grant Bill and the role of your Lordships’ House as a revising Chamber. We understand that an announcement is to be made shortly on this Bill, setting out that the Commons has passed the Bill and presenting it for its First Reading here in your Lordships’ House. The Companion makes clear that the First Reading of a Bill is agreed without dissent or debate, and I fully intend to stand by that provision if, as we expect, the Bill is presented for First Reading. However, we understand that the Speaker in another place has declared that the Bill is a money Bill and is therefore covered by Commons financial privilege. The net effect of this is that this House will be unable to consider and debate the Bill and propose any amendments to it in its normal role as a revising Chamber.
The three provisions that the Bill seeks to modify were fully and properly considered in primary legislation in both Houses of Parliament, and we consider it a constitutional outrage for this House to be so prevented from considering the subsequent Bill, which will cut these payments now. If such a Bill is declared a money Bill then any such legislation can be designated in this way, again thereby attacking the role of this House as a revising Chamber and an important part of the checks and balances of our constitutional arrangements. In seeking to bring this important matter to the attention of the House we give notice that we will oppose this Bill at Second Reading and its declaration as a money Bill. Again, I believe that the Government are not conducting legislation in an entirely proper way.
Baroness Anelay of St Johns
My Lords, I hope the noble Lord, Lord Bassam, will consider and reflect carefully on the latter part of his choice of words.
I remind the House of the guidance in the Companion. Paragraph 8.196 states:
“A money bill is a bill endorsed with a signed certificate of the Speaker of the House of Commons that it is a money bill because in the Speaker’s opinion it contains only provisions dealing with national, but not local, taxation, public money or loans or their management. The certificate of the Speaker is conclusive for all purposes”.
In addition, the Companion is clear that criticism of rulings of the Commons Speaker is out of order. Paragraph 4.44 states:
“Criticism of proceedings in the House of Commons or of Commons Speaker’s rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons”.
That debate is better had at Second Reading within that context.
Lord Bassam of Brighton
My Lords, I am sure that that is entirely right. We will of course abide by those provisions and raise these matters at Second Reading, but, I repeat, all three of these issues were properly and fully considered by this House at all stages of those pieces of legislation. That is a record of which we should be proud.
Savings Accounts and Health in Pregnancy Grant Bill
Apportionment of Money in the National Lottery Distribution Fund Order 2010
Baroness Garden of Frognal
That the draft order laid before the House on 14 October be approved.
Relevant document: 4th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 November.
Official Statistics Order 2010
Lord Taylor of Holbeach
That the draft order laid before the House on 13 October be approved.
Relevant document: 4th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 17 November.
Public Bodies Bill [HL]
17:21 - Division on Amendment 1 - Ayes: 235 / Noes: 201 - Amendment 1 agreed.
Lord Lester of Herne Hill
Lord Lester of Herne Hill
My Lords, the amendment stands in my name and that of the noble Lord, Lord Pannick. I shall speak also to some other amendments in my name and that of others that are in this group.
In his reply to the Second Reading debate on 9 November, the Minister responded positively to the serious concerns raised across the House and undertook to meet them by devising a parliamentary procedure that would,
“ensure proper public consultation and enhanced parliamentary scrutiny … We will also seek to amend the Bill to include safeguards to give independence to public bodies against unnecessary ministerial interference when performing technical functions, and when their activities require political impartiality and the need to act independently to establish facts”.
The Minister also undertook to see whether some of the bodies needed to be removed entirely from Schedule 7, and to address concerns,
“about bodies that deal with matters relating to the judiciary or otherwise to the administration of justice”.—[Official Report, 9/11/10; Col. 184.]
The Minister explained that the detailed and expert scrutiny by the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights, as well as the Constitution Committee, would all need to be taken into account. The Joint Committee on Human Rights, on which I serve, has just met. It is awaiting a human rights memorandum from the Cabinet Office and hopes to report before Report.
The Minister’s positive response was welcome. He and his advisers have been generous in meeting noble Lords for further discussions. The Delegated Powers and Regulatory Reform Committee published its report on the Bill three days later on 12 November.
Amendment 1 is important because it would pave the way for the proposed new clause to place restrictions on the powers conferred by the Act to act by way of delegated rather than primary legislation whenever Ministers intend to abolish or interfere with the constitutional arrangements, funding or management of the many disparate public bodies within the Bill’s reach. It is more than just a paving amendment since it is linked with the proposed new clause in Amendment 175, which would set clear limits on the exercise of the wide powers delegated to Ministers by the Bill. Taken together, Amendments 1 and 175 would perform the essential purpose of making Ministers accountable to the courts for breaches of well-known standards of public administration. I hope that the Minister will accept Amendment 1, or its effect, thereby leaving himself time before Amendment 175 is reached to modify his position on the further safeguards and restrictions that are needed. Amendment 1 would leave the door ajar, but it is the key that opens the door.
Our amendments, which have support from all sides of the House, need to be viewed in the context of the other amendments on public consultation and parliamentary scrutiny and approval that will together create an appropriate framework for the exercise of these wide powers. They seek to make the Bill accord with constitutional standards and good practice, respecting the different institutional competence and separation of powers between the Executive and Parliament, and between those branches of government and the independent judiciary. Taken as a whole, they seek to secure democratic accountability to Parliament and the citizen, as well as to the courts in accordance with the rule of law. Like the Delegated Powers and Regulatory Reform Committee, I believe that consultation should include public consultation.
If the House can agree on such a framework at an early stage in our debates, full arguments about whether particular orders should be made for this or that public body will be able to be made at the proper time by those affected and by each House of Parliament as and when a Minister finds it expedient to invoke the powers conferred by the Bill. The chilling effect on the independence and proper functioning of the bodies that need to operate independently of unnecessary ministerial interference will be greatly reduced, because Ministers will not be able to use the powers conferred by the Bill in the manner of Henry VIII and Thomas Cromwell. Parliament will require them to be accountable to the courts, to the public and to each House before they may do so. That is the necessary price they must pay for seeking powers of this magnitude.
There are four restrictions in Amendment 175. They seek to protect judicial independence, respect for human rights, a sense of proportion, and the independence and impartiality of bodies whose activities require them to act independently and impartially without unreasonable ministerial interference or direction.
Subsection (1)(a) of the new clause that would be inserted by Amendment 175 would protect the independence and impartiality of the judiciary and other public bodies or officeholders who perform judicial functions. The proposed provision embodies the principles of the rule of law and judicial independence that are set out in the Constitutional Reform Act 2005, but it goes further by referring, as does the Equality Act 2010, to those who perform judicial functions even though they are not courts or tribunals. That also accords with the Minister’s assurance at Second Reading that he would address concerns,
“about bodies that deal with matters relating to the judiciary or otherwise to the administration of justice”.—[Official Report, 9/11/10; col. 184.]
I hope and expect that no Minister would wish to do otherwise.
Government Amendment 112 is narrower than Amendment 175, as it refers only to the independence of the judiciary. I hope the Minister will accept that, in principle, what he said at Second Reading needs to be reflected in the Bill on Report.
The activities of several public bodies within the Bill’s reach have been designed to promote or protect human rights. Those bodies include the Equality and Human Rights Commission, the Children’s Commissioner, Her Majesty’s Chief Inspector of Prisons, the Criminal Cases Review Commission, the BBC, Channel Four Television Corporation, the Human Fertilisation and Embryology Authority, the Independent Police Complaints Commission, the Legal Services Board, the Parole Board, the Sentencing Council for England and Wales and others. If Ministers were to act in a way that undermined the capacity of such bodies to promote or protect human rights, they would not, as the Explanatory Notes to the Bill explain, directly engage the convention rights but they would undoubtedly engage the convention rights indirectly. Many of those bodies have a strong case for being removed from Schedule 7 altogether, as some of the bodies have to act judicially even though they are not courts in the classic sense.
I accept that it would not normally be necessary to make express provision to compel Ministers to act in a way that is in accordance with the convention rights because that is done in Section 6 of the Human Rights Act 1998, but subsection (1)(b) of the new clause that would be inserted by Amendment 175 includes such a provision for the avoidance of doubt. The proposed provision would include the rights protected,
“by common law or equity”,
lest it be thought that such rights were abridged or reduced by the general powers conferred by the Bill. We look forward to the Minister’s response on that issue.
The formula used in Clauses 8(2)(a) and 8(2)(b) is taken from Section 3 of the Legislative and Regulatory Reform Act 2006, so it provides that Ministers may not,
“remove any necessary protection, and … prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise”.
Those provisions are vague, and the Explanatory Notes on the Bill are, if I may say so, opaque and much less illuminating than the Explanatory Notes that were provided for the 2006 Act. Therefore, I ask the Minister to confirm that the notion of “necessary protection” includes, as is the case in Section 3(2)(d) of the 2006 Act according to the Explanatory Notes on that provision, matters such as,
“economic protection, health and safety protection, and the protection of civil liberties, the environment and national heritage”.
I also ask the Minister to confirm that Clause 8(2)(b) is intended to include both convention and common law rights, including legitimate expectations.
The third restriction, in subsection (1)(c) of the new clause that would be inserted by Amendment 175, would require the use of,
“proportionate means to attain the objectives prescribed by section 8(1)”.
Paragraph 20 of the Delegated Powers and Regulatory Reform Committee’s report draws attention to the fact that the Bill as it stands draws on the language of Section 3(2) of the 2006 Act, but that,
“significantly, the Bill does not import the other tests in section 3(2) of the 2006 Act: that the effect of the order is proportionate to the policy objective; that it strikes a fair balance; and that it is not constitutionally significant”.
The need to strike a fair balance is, I am sure the Minister will confirm, already included in the concept of proportionality, so there is no need to mention that in Amendment 175. It is also doubtful that there is any need to include a reference to what is or is not constitutionally significant, since the central purpose of Amendment 175 is to delineate the constitutional contours in the Bill. However, it is essential to include the requirement for the looser of the powers conferred to be proportionate to the legitimate aims prescribed by Clause 8(1).
The concept of proportionality is as English as apple pie, or as Scottish as haggis. The decision-maker must not use a sledgehammer to crack a nut and must not use lawful powers excessively or in a way that results in overkill. That is the basic principle used by both European courts and our own courts in giving effect to EU and convention law, and in applying the common law whereby the courts have said there is little difference between rationality and proportionality. In any assessment of proportionality, the courts leave a proper margin of discretion to the decision-maker, but it is essential to make it clear in the Bill that the powers that are delegated must be applied with a sense of proportion.
In his letter to my noble friend Lady Thomas of Winchester of 19 November, in response to her committee’s report, the Minister accepted that considerations of proportionality are clearly an aspect of Ministers’ considerations when having regard to the objective of securing increased efficiency, effectiveness and economy in the exercise of public functions, but he did not explain why the Bill should be weaker in that respect than the 2006 Act. The subject matter of the two measures is different, but the principle of proportionality should surely apply to the exercise of Ministers’ powers under both measures as a matter of legal obligation.
The Minister’s letter to the noble Baroness, Lady Jay, in response to the report from her Constitution Committee, also seeks to justify the Government’s reluctance to include the requirement of proportionality in the Bill, as the previous Government did in the 2006 Act and in other legislation, including the Equality Act 2010, as the noble Baroness, Lady Royall, will recall. Yet the Minister acknowledges that:
“A decision which was not proportionate, or was irrational, could of course be challenged in the Courts in the normal way”.
Quite apart from the fact that the principle of proportionality has yet to be fully recognised by our courts as a general principle of administrative law, there is no justification in that letter—or, I submit, otherwise—for failing to include the same protection against the excessive use of Ministers’ powers in this Bill as in the 2006 Act. I know that the noble Lord, Lord Pannick, who can be said to be a rather greater authority than I could ever be in administrative law, will want to explain further the importance of the principle of proportionality in the context of this Bill.
Our Amendment 175 also requires:
“Where the nature and activities of a public body or office require the establishing of facts or the giving of expert advice independently and impartially, the powers conferred by the Act must be exercised in a way which ensures that the public body or office remains able to act in accordance with those requirements”.
The Delegated Powers and Regulatory Reform Committee refers to this important issue in paragraph 38 of its first report. The Government’s amendment to Clause 8 is better expressed than our amendment, but it leaves the matter to relevant consideration by the Minister and is therefore weaker.
Amendment 106 is included to ensure that the matters to be considered in Clause 8(1) apply to the exercise of the powers conferred by Clause 11 to amend Schedules 1 to 6. Amendment 109 is designed to make the protection in Clause 8(2) objective rather than subject to the Minister’s discretion. Amendment 110 would make it necessary for the Minister to act reasonably, but those amendments will probably be unnecessary if, as we hope, the principle of proportionality is included in the Bill as an objective requirement. I beg to move.
Lord Campbell of Alloway
I support the noble Lord’s Amendments 1 and 175. What he said was wholly consistent with the acknowledged function of this House to protect the constitution and to amend the Bill as it goes through, to delay it and afford the other place an opportunity to reconsider or, indeed, to compromise. What the noble Lord said is wholly consistent with that. What the Opposition will say in a moment is not, so I am not speaking about the Opposition. This is a sound approach for the reasons that I have given and it was very well presented.
Lord Pannick
I have added my name to the amendments tabled by the noble Lord, Lord Lester of Herne Hill, for a simple reason: this is a bad Bill. It confers excessive power on the Executive. It is of fundamental importance to include in the Bill as many protective provisions as possible.
Amendment 1, read with Amendment 175, has a simple purpose. It would restrict ministerial powers so that they can be exercised only in a way that is compatible with judicial independence and human rights and freedoms; is used proportionately; and does not prevent a public body performing its functions to establish facts or to give expert advice independently and impartially. I cannot imagine that the Minister could possibly disagree with any of those well established principles. I suspect he might say that he is doubtful that such principles need to be expressed in the Bill. However, he does then need to explain to the Committee why such principles were expressly included in the 2006 Act. He also needs not merely to explain this question of precedent but to address the question of principle.
Given the breadth of the powers that the Minister seeks in the context of the Bill; given the concerns that were expressed about the scope of those powers by your Lordships’ Committee on the Constitution, of which I am a member, and by your Lordships’ Delegated Powers and Regulatory Reform Committee; and given the concerns expressed by many of your Lordships at Second Reading, it is of vital importance to identify in the Bill important constraints on the exercise of these powers. It is important for two reasons. It is important to ensure that future Ministers are as careful in their use of the powers as I am sure the Minister will be. It is also important to reassure public bodies and members of the public that we in Parliament have not lightly conferred such powers on Ministers, but rather that we have been anxious to emphasise in the Bill that there are important limits on what Parliament is willing to authorise Ministers to do.
The importance of Amendment 1, read with Amendment 175, is confirmed by the much weaker protection that the Minister is inviting the Committee to add to the Bill in his amendments. The Government’s amendments, although a welcome improvement on the original Bill, are insufficient. They simply require the Minister to consider defined matters before exercising powers. They do not—as they should—prevent the Minister making an order if and to the extent that it would interfere with the independence of the judiciary, or concern functions which require to be exercised independently of Ministers as they involve giving impartial advice or the scrutiny of Ministers’ actions. For example, government Amendment 108, which we are considering in this group, will require the Minister to consider only the extent to which the functions affected by the order need to be exercised independently of Ministers. If the functions do indeed relate to such matters, primary legislation should be required to ensure proper parliamentary scrutiny. Amendment 109, in the name of the noble Lord, Lord Lester of Herne Hill, would remove from Clause 8(2) “the Minister considers that” in relation to necessary protections.
It should not be simply a matter of the Minister forming an opinion on these matters; the Bill must provide that he or she cannot make an order if it would remove necessary protections, such as interfering with the independence of the judiciary. That would ensure—
Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way. I am entirely sympathetic to what he and my noble friend Lord Lester are saying but I hope that he can help me and, I think, the House by answering the following question. I think he said that the provisions in paragraphs (a), (b) and (c) in the proposed new subsection (1) in Amendment 175 are implied by law and therefore do not need to be expressed in the statute. My noble friend Lord Lester wonders about proportionality, but by inserting existing powers in this Bill, are we in danger of shackling future legislation where those provisions are not inserted in the relevant Bill, and perhaps therefore getting into an argument that, as they are not there, they are not considered part of the Bill? I hope that I have expressed myself clearly.
Lord Pannick
I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional—it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.
I was dealing with the Minister’s amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,
“must uphold the continued independence of the judiciary”.
It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.
As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders—a matter to which I am sure that we will return later in Committee—it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.
I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.
Lord Clinton-Davis
If the Government were to prevail so far as the amendment was concerned, could the issue be raised again in the courts? I think it could.
Lord Pannick
I am sure that there would be ample room for argument in the courts. I am concerned that we do not leave matters of this importance, in relation to a Bill that confers such exceptional powers on the Executive, to legal argument for the future. It is our task and our responsibility to ensure that these matters are clearly stated in the legislation that we are considering.
Baroness Hayter of Kentish Town
My Lords, I endorse the words of both noble Lords, Lord Lester of Herne Hill and Lord Pannick. I urge the Minister and the Committee to do the same.
Amendments 14 and 107 seek to ensure that, in any move to abolish, merge or alter the various organisations listed in the various schedules, the Minister must have regard to the original powers or objectives laid down in law for those bodies. It would therefore not be enough to say simply, “We can save money by these changes”, although I always agree with saving money. The amendments would make it necessary to consider more than just the need for specialist and technical expertise, much though I also support that; and more than simply independence from government, as has been spoken of, much as I also concur with that.
Parliament needs to be satisfied that the raison d'être of each body—its objective, as set down in statute—will be protected and continued under whichever body takes over from the abolished, reformed or merged organisation. I would like to give four brief examples listed in the schedules where legislation has been passed, including through this House, to give powers or duties to those organisations. We need assurance that, in any change to their status, the very purpose and duties for which they were set up should be retained, even if carried out in a more resource-efficient way.
I start with the Legal Services Board; I declare an interest as chair of the Legal Services Consumer Panel, which is funded by the Legal Services Board. The Legal Services Act 2007 requires the establishment of the board, and says that it,
“must … act in a way … compatible with the”,
Act’s “regulatory objectives”, which are about,
“protecting and promoting the public interest … supporting the constitutional principle of the rule of law … improving access to justice … promoting competition in the provision of services”,
and,
“encouraging an independent, strong, diverse and effective legal profession”.
The Act also demands that the board promotes adherence to the professional principles of lawyers, which are to,
“act with independence and integrity … act in the best interests of their clients”,
and,
“comply with their duty to the court to act with independence in the interests of justice”.
This goes further than judicial independence—important though that is; those objectives would need to be retained. My amendment would ensure that those objectives were still met if there were any alteration to the board’s set-up. They are absolutely central to the administration of justice.
Lord Lester of Herne Hill
The noble Baroness makes a powerful case, but can she help me? The powers in the Bill are wide enough to deal with bodies that have outlived their useful life or are in need of substantial and radical reform. My idea is that it would be a sensible way forward to hedge the powers with sufficient safeguards. What about the noble Baroness’s approach? What happens if Ministers rationally and proportionately decide that body X has outlived its useful purpose or needs radical reform? Would not her Amendment 107 produce a situation of fossilisation?
Baroness Hayter of Kentish Town
The idea is that they should have regard to those objectives. If the objectives are no longer required, or if they could be dealt with in a different way by a different body, that would be one thing. My concern is that if we look only at the issue of independence—which I spoke about, and stressed the importance of, at Second Reading—this will not be sufficient if the power given by the Bill to a body to make sure something happens is still needed. There is nothing else in the Bill as it stands—and even with the other amendments—to make sure that those duties, for example to look after the interests of consumers in rural areas, or of vulnerable consumers, are still carried out. They must have regard to those interests, but my concern is that the purpose for which primary legislation set up these bodies, and the duties which it gave them, should be considered by the Minister before he exercises his power. In passing the Bill, Parliament must be confident that where the functions are still needed, they will still exist under the new body, which will have the same strength to safeguard whichever group of users or vulnerable people or pension members whose interests are covered by the 150 groups listed in Schedule 7. Therefore, the amendments in this group seek to ensure not only that the new bodies are independent, but that the purposes for which Parliament set up the old bodies, if they are still needed, will be retained by the new bodies, which will have the relevant powers.
Lord Lloyd of Berwick
My Lords, I am sorry to invite the Committee to listen to another lawyer quite so soon. I regret very much that, as I was abroad, I could not be present for Second Reading. However, I express my complete and respectful agreement with the speeches of the noble and learned Lords, Lord Woolf and Lord Mayhew, the noble Baroness, Lady Andrews, and indeed many others. As a result of Second Reading, we now have before us very elaborate amendments covering the question of proper consultation and procedure. The amendments were pioneered by the noble Lords, Lord Lester and Lord Pannick, who were followed by Her Majesty's loyal Opposition and then by the Government. I will certainly vote for one of the amendments, and all three if necessary.
However, welcome though the amendments are, they do not hide the remaining glaring deformities of the Bill. In particular, I will concentrate on government Amendment 108 in this group, which has been referred to already by the noble Lord, Lord Pannick. Clause 8 establishes the two main objectives of the Bill: to bring about greater efficiency and accountability. The clause is said to be the great safeguard in the Bill. However, the moment I read about greater accountability to Ministers, I hear a warning signal. We should read carefully Amendment 108 to Clause 8. It states:
“For the purposes of the objective referred to in subsection (1)(b)”—
that is the accountability objective—
“the Minister must consider the extent to which functions affected by the order need to be exercised independently of Ministers—(a) because they require the exercise of professional or specialist expertise, or the making of decisions or giving of advice, by a person who is impartial as respects Ministers’ policy”.
I shall leave for the moment proposed new paragraph (b).
The moment I read that amendment to Clause 8, I began to feel that we were verging on a contradiction in terms. The whole objective, it is said, is to lead to greater accountability, yet at the same time it is said that the Minister is to take into account matters which emphasise the bodies’ independence of Ministers. I find it very difficult to see how these two apparently contradictory objectives can be reconciled. Exactly the same applies—perhaps even more so—to paragraph (b) in Amendment 108, which says,
“because they involve establishing facts in relation to, or oversight or scrutiny of, Ministers’ actions”.
It seems to me that, once the facts in relation to that are established regarding any of the bodies in Schedules 1 to 6, it must no longer be a matter for the Minister’s consideration—a point made effectively by the noble Lord, Lord Pannick. Once it is established that that is the purpose of the body in question, then surely it is not a matter for the Minister’s consideration; at that point, the body must be taken out of Schedules 1 to 6 altogether and left to primary legislation.
Either this amendment means nothing at all or, if it means anything, it is contradictory to the main objective and is therefore likely to lead to a great deal of litigation in the future, which one can easily envisage. In the mean time, however, if the relevant facts in relation to any particular body are established, then the only solution, with great respect, is to take that body out of Schedules 1 to 6 altogether.
Lord Soley
We have just heard four very powerful speeches, which I hope will influence the Government. I shall try not to repeat the various points that have been made but I agree with them. My noble friend Lady Hayter made a very good point when she talked about the Legal Services Board and the Legal Services Commission, because these bodies need to be seen to be independent.
I am disappointed by the Government’s amendments for two reasons. First, I think that there is very wide agreement, both in this House and indeed in the House of Commons, with what the Government want to achieve. There is no argument about the need to find new and better ways of ending, changing or winding up quangos, and there is a wonderful opportunity here for all-party agreement in both Houses about improving the way in which we set up these bodies and change them.
The second reason I am disappointed is that at Second Reading I listened very carefully to the noble Lord, Lord Taylor of Holbeach, who I thought—indeed, I said it to many people—made a very powerful and thoughtful speech. He seemed to have grasped the acute anxiety felt across this House about the extent of the power being given to Ministers over Parliament. That is what triggers so much of the concern and it follows on from the amendment of the noble Lord, Lord Lester, which focuses very much on the critical issue of the judiciary.
The Government still do not understand that this is a question of how much power a Minister has to override Parliament—that is what it boils down to and I say it deliberately and distinctly. As has already been stated, government Amendments 167, 168 and 108, which I am sure the noble Lord will speak to in due course, require the Minister to consider. That is a very small step forward but it does not address the fact that, once the Minister has considered, he can still go ahead and carry out the actions that he was thinking of taking with or without any changes, regardless of what Parliament may have said or done. Parliament cannot make amendments, as was originally the case when the primary legislation went through.
Lord Renton of Mount Harry
Like the noble Lord, Lord Pannick, I served on the Constitution Committee that produced the first report on the Public Bodies Bill. As the noble Lord will remember, I shared his horror—that is perhaps the appropriate word—when we first read this Bill and studied it. Listening to what has been said, particularly by the noble Lord, Lord Soley, I feel a great need to hear what the Minister has to say to us before taking a final decision. I have talked to the Minister, as have others, in recent days and in talking to us he was very well aware of the need to bring in procedures that would involve public consultation, parliamentary consultation and, indeed, the ability of Parliament to say no, if it wants to.
Listening is very important, but one also has to consider not just the law on this but the situation that the Government found, which they wish to tidy up. There are, I think, something like 500 public bodies mentioned in the Bill. Some of them have never worked at all, some duplicate the work of others and some would run better twinned with others. That, one knows, was the basis for bringing in the Bill in the first place, along with the Government’s wish to try to reduce the cost of quangos as one step in reducing the amount of public money spent in this country. I approach it from that angle, rather than from the legal angle.
I expect that we all know bodies on this list that we have worked with. Sometimes we have got frustrated, and other times we have been very satisfied. I declare a particular interest in the national parks, because I have been involved in the South Downs for a long time. We are about to become part of the new national park, and I am very interested to know just how the laws, the custom, of the national parks are going to affect inhabitants of Lewes and Sussex, such as myself. However, I realise that even with as big a body as the national parks, we all have to look at the possibility of pruning and streamlining and spending less public money. For me, that is the spirit behind the Bill.
In other amendments—for example, Amendments 114 and 118—your Lordships will see the very definite wish of the Government, through my noble friend Lord Taylor, to have procedures and consultation that are widespread but much more effective. That is the positive side of what is being looked at today, and it is for that reason that I will in the end, I hope, vote with the Government because this tidying up is very much needed and we are taking a step in the right direction.
Lord Woolf
My Lords, if what we were embarked on in this Bill was tidying up and that was the exercise to which we were limited, I would have no trouble with this Bill. However, it is my belief that the Bill goes miles beyond such an exercise. As a result, notwithstanding the fact that I agree with virtually everything that has been said about amendments to this Bill, I need add virtually nothing.
If I should add something, it would be to this effect. I admire the ingenuity and the skill with which the noble Lords, Lord Lester and Lord Pannick, have found ways to curtail the extraordinarily wide powers that this Bill gives. But, even with those provisions, which are very welcome, the fact remains that things are being done by this Bill which are just inappropriate. That is why I am troubling to take up your Lordships’ time.
The bodies referred to in Schedule 7 are not the sort of bodies which, because of their very nature and their importance, should be abolished, amended or modified in accordance with the scheme of this Bill. It is almost an insult to the constitutional principles involved in dealing with bodies of that nature, which should be shown care and respect, to treat them in this cavalier way. Each of the bodies in Schedule 7 can say, “We are the sort of bodies that if we are going to be changed have to be changed by primary legislation so that we cannot only consider what will happen if we are moved to another schedule, but what will be put in our place if we no longer perform the functions which Parliament has in most cases entrusted to us? We would refer those responsible for the administration of justice to the manner in which we can protect the improper interests of the administration of justice”.
While that is true and self-evident in the case of Schedule 7 bodies, it is also, to a substantial extent, true in the case of some of the bodies—I emphasise the word “some”—in Schedule 1. I draw attention especially to the first and the last bodies mentioned in Schedule 1. However, I know that these matters will be dealt with later, particularly by the noble Lord, Lord Borrie, as regards the Administrative Justice and Tribunals Council. It used to be called the Council of Tribunals, which played a significant part in the development of administrative principles of good practice in this country. The bodies subject to the supervision and guidance of the council are bodies which provide for the great bulk of the citizens in this country the only way in which they can obtain justice in regard to matters that may, in the scale of some of the matters that come before the courts, seem modest, but which are very important to the individual citizen.
If you are seeking a benefit or you say, “I have been deprived of a benefit to which I am entitled”, you go to one of the tribunals supervised by this body. If you are complaining about your tax, you go to the tribunals dealing with revenue issues. These bodies affect, from time to time, most citizens in this country. They need the watchdog which the council provided. The watchdog was there, not to protect the rights of the tribunal or the Executive, but to act on behalf of the public as their watchdog to ensure that the bodies are meeting the standards that are required of bodies of the nature to which I have referred. You cannot remove the dangers created in this Bill by putting such bodies in Schedule 1. The council to which I have just referred can be removed by order in circumstances where there will be no proper consideration of how the body operates as a whole.
I turn to the Youth Justice Board for England and Wales, which is the last of the bodies referred to in Schedule 1. There may be controversy as to the role the board has played in assisting the way in which we deal with the very significant problem of misbehaviour and crimes committed by the young, but if we take the Youth Justice Board away, as Schedule 1 presupposes, we have to think about what should be put in its place. This Bill is not the proper machinery in which to consider an issue of that sort. It can be considered properly only in the context of an examination of how we approach the criminal conduct of youths subject to the board. I should tell the Minister that a great many of those intimately involved in the criminal justice system think that the Youth Justice Board has been a positive move and that in certain periods during its life it has improved the manner in which we handle the difficult problem of how to treat youngsters involved in these unfortunate matters.
I was impressed by the open-mindedness with which the noble Lord, Lord Taylor, considered what was submitted to him in the debate on Second Reading. I hope that he will also consider what has been said in the course of this debate because it is important and deals with principles of long standing.
Lord Lester of Herne Hill
My Lords, may I respectfully ask the noble and learned Lord a question? By implication, I think he is suggesting that I am slightly too moderate, which may be the case. But if one takes as an example the Judicial Appointments Commission and assumes that some minor but necessary changes need to be made to its structure or administration, one has the ironclad and objective safeguards of independence as well as the other safeguard written in of objective standards. One has also the safeguards of public consultation and the need for the Minister to come before each House to justify the order on the facts, with reasons given. Is the position of the noble and learned Lord that, even with all those safeguards, nothing can be done in relation to that body except by primary legislation? If that is his position, with great respect, it seems disproportionate.
Lord Woolf
My Lords, as always the noble Lord, Lord Lester, has made a good point. But the fact of the matter is this: is the procedure set out in this Bill the appropriate way of dealing with the minor amendments to which he has referred? He has taken as an example the body which, ironically, was designed to achieve the independence of the judiciary from the Executive by ensuring that the way in which judges are appointed is separated from the Executive. What the Bill will do is say that if we want to amend or abolish that body, we will go through a two-stage process. First, we will move it to another schedule, and possibly discuss that in this House. We will then go through another process to achieve the desired amendment. If it is wrong in principle, as I submit it is, to treat a body of this sort by placing it in Schedule 7, then the fact that one day some minor amendment might need to be made to that body does not justify the treatment being proposed. The Judicial Appointments Commission justifies proper consideration because even minor amendments can affect such a body in ways that caused this House to look so carefully, in the Constitutional Reform Act 2005, at how in the future we would appoint our judges.
Baroness Butler-Sloss
My Lords, I hope the Committee will forgive me for not being present throughout the debate on this first amendment but I have been at a Select Committee.
I rise for two reasons: first, respectfully to agree with everything that the noble and learned Lord, Lord Woolf, has said; and, secondly, to point out four particular examples in Schedule 7 which are subject to the power to add to other schedules. I cannot see how the examples I am going to give could be added to other schedules. First, where would the Royal Botanic Gardens go to? Secondly, the Children and Family Court Advisory and Support Service had a very unhappy gestation but has now become relatively effective; to interfere with it would be a disaster for children in this country. I know something about the third example, the Family Procedure Rule Committee, because I used to be its chairman. Where do you put that? My last example is the Gangmasters Licensing Authority. The Committee will remember the Chinese cockle pickers and why we established the Gangmasters Licensing Authority. How on earth can it be added to another schedule?
Lord Newton of Braintree
My Lords, I rise, first, because I want to get a word in edgeways as a non-lawyer; and, secondly, because it seems appropriate that I should follow part of what the noble and learned Lord, Lord Woolf, said—prefacing it by declaring a now historic interest as the person who chaired the Council on Tribunals and its successor body, the Administrative Justice and Tribunals Council, for no fewer than 10 years from 1999 until last year. My name is not attached to the amendment of the noble Lord, Lord Borrie, and I shall speak to the AJTC later, but I appreciate and agree with what the noble and learned Lord, Lord Woolf, has said.
As I was not able to be here for Second Reading, I shall not make the Second Reading speech I might have made, deeply unhelpful as the Government would have regarded it. However, I wish to make three points. First, I welcome, as did the noble and learned Lord, Lord Woolf, the spirit in which my noble friend Lord Taylor of Holbeach has responded to the criticisms at Second Reading. Whether or not it goes far enough we shall discover in the course of our debates, but it has been a remarkable exercise in rewriting the Bill as it goes along. It must have taken him quite a lot of work to persuade his colleagues to make such changes. I congratulate him and I do not want to make his life any more difficult.
Secondly, albeit as a non-lawyer and without going over all the speeches, I could not find a word uttered by the original proponent, the noble Lord, Lord Lester, or his seconder, as it were, the noble Lord, Lord Pannick, with which I disagree, and there are probably quite a few noble Lords on this side of the Committee who share that view.
Thirdly, I say to my noble friend—as I am happy to call him—Lord Phillips, a former constituent, and to the Minister that I spent five years as Leader of the House of Commons—I was more or less in charge of the Government’s programme in those days—listening to Ministers trying to say that you did not need to put stuff in a Bill because it was implicit and impaling themselves on a ludicrous argument that something that did not make any difference was worth dying in a ditch over. I hope the Minister is not going to do it again.
Baroness Andrews
My Lords, it is a great honour to follow the noble and learned Lord, Lord Woolf. I shall refer to inappropriate use of delegated legislation. I should declare an interest as a member of the Delegated Powers and Regulatory Reform Committee. It may be helpful to Members who have not had an opportunity to see our sixth report to tell them in brief what it says.
In its fifth report, the committee strongly expressed the view that the Bill provided Ministers with unacceptable discretion to rewrite the statute book with inadequate parliamentary scrutiny and control of the process. It found that the Bill was almost “wholly enabling” and granted Ministers enormous discretion to use delegated powers to abolish or restructure a large number of public bodies and offices. I echo what has already been said around the House about the response of the Minister in trying to address some of the fundamental issues that were raised at Second Reading, and we are grateful for that, but the committee concluded in its report, published this morning, that the concerns had not been resolved and that,
“the powers themselves are not … appropriate delegations of legislative power”.
That brings me to the speech just made by my noble friend Lord Soley. While the Minister has tried in his Amendment 108 and those that follow to address some of the concerns through a form of affirmative procedure, it is simply not adequate to deal with the fundamental problems identified with such eloquence by the noble and learned Lord, Lord Woolf, and other Members of this House.
I have some problems with the amendment put forward by the noble Lord, Lord Lester, in the context of the comparison rightly made between this Bill and the Legislative and Regulatory Reform Act 2006. The Government introduce in Amendment 118 a new procedure for orders. It is a form of super-affirmative order. Unfortunately, the Government’s argument as to why it is sufficient is disingenuous.
The Minister argued in his letter to the Delegated Powers and Regulatory Reform Committee that the Bill is narrower than the Legislative and Regulatory Reform Act 2006 because that Act applied to policies at large and that the range of protections in it was therefore not appropriate for this Bill. The fact is that this Bill is wider than the Legislative and Regulatory Reform Act 2006. Although the 2006 Act is wider in scope, in the sense that it can involve any public policy or legislation, its effect is narrower, because it is strictly limited to making processes more transparent, accountable, proportionate and consistent. Those are very specific requirements. This Bill is narrow only in the sense that it deals with public bodies, but the powers that it has taken, described by the noble and learned Lord, Lord Woolf, are enormous. What is more, in Schedule 7, we do not know even what those powers will be or what they will be used for. That is what exercises this Committee and it should exercise the Government.
Even more important, Section 2 of the 2006 Act cannot be used to abolish or confer any new regulatory functions, but Clauses 1, 2 and 5 of this Bill expressly provide for the abolition and the creation of regulatory functions. If the Minister were to take my point and say that he would come forward with an amendment which imported all the relevant procedures of the 2006 Act into this Bill, the House would have this additional capacity: it would take only a recommendation, not a resolution, of a committee of either House to require the Government to have regard to representations, resolutions and recommendations.
Lord Ramsbotham
My Lords, I make a very brief point to support my noble and learned friend Lord Woolf in his support for the general principle behind the Bill and also in his concerns. I refer to one document that has not so far been mentioned—the impact assessment. We have heard enough already around this House to realise that there is something wrong in an impact assessment that can say that the Bill has no direct impact on human rights or the justice system. It suggests to me that those who drew up that impact assessment cannot have thought through what they were actually including in this Bill. I hope very much that the Minister will be able to repudiate that impact assessment.
Lord Elystan-Morgan
My Lords, may I mention two matters very briefly? The first is the matter that was dealt with so magnificently by my noble and learned friend Lord Woolf. It seems to me that only an insensitive Government would even contemplate putting in any one of those schedules quasi-judicial bodies that are so central in their very existence and purpose to the administration of justice. There is no justification whatever for allowing them to remain in that particular jeopardy; they should be inviolate; they should be free from any prospect of ministerial diktat.
The second matter is the wider point of the issue that is before the Committee. Many people will say that they think the issue is whether Ministers should have the right and power to deal in such a savagely surgical way with 481 public bodies. No, that is not the issue. The issue is not the question of the conflict between Ministers and those bodies but that between the Executive and the sovereignty of Parliament. The question is whether those Ministers should have the power to strike down all those masses of legislative developments that have led to the very creation of those bodies in the first place. That is the issue. If I may make a biblical reference, I would say that the proposal is almost an Armageddon issue.
Henry VIII clauses are nothing new. About 80 years ago, Sir Gordon Hewart, a former Attorney-General who later became Lord Chief Justice, wrote a book called The New Despotism, whose title refers to the use of such clauses. Over the past 80 years, there has been a massive growth in the use of Henry VIII clauses such that we have now reached the point at which Parliament must either say no and call a halt to their use or allow the situation to develop ever further and thereby corrupt even the existence of Parliament.
Lord Clinton-Davis
I would like to say a few words, so I propose to speak for about two minutes.
I think that the indictment that the noble Lords, Lord Lester and Lord Pannick, have mounted today is worthy not only of the agreement of the noble Lord, Lord Taylor, to their amendments but of his agreement to the withdrawal of the Bill. We have been especially fortunate to hear the noble and learned Lord, Lord Woolf, give a devastating denunciation of the Bill today that ought to be heard by those on the government Benches.
We all have a great affection for the noble Lord, Lord Taylor, who has done an enormous amount to try to improve the unimprovable. The Minister has made some gallant efforts, but the best thing that he could do, in my view, is to withdraw the Bill and enable the House to consider afresh what ought to be done.
I simply want to underline my concerns as a solicitor. Amendment 175 interprets some crucial and important points that the Government have neglected. To confer upon Ministers the powers that the Government currently contemplate in the Bill is unworthy. The limitations that are provided for in the amendment are really crucial, so I hope that the Government will take those into account properly in their consideration of what has been said.
Baroness O'Loan
My Lords, I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, although I speak not for the committee but in a personal capacity.
There is no doubt that it is sensible to review the activities of public bodies—the House is agreed on that—but there are already processes within most pieces of legislation to provide for that. Quinquennial and other reviews, which are a factor of the corporate life of most public bodies, provide regular opportunities for consideration of all the issues such as functions, powers and budgets that are referred to in the Bill. The use of such reviews could provide a starting point from which there could be a coherent review of individual bodies that might, or might not, lead to the need for primary legislation.
Given the importance—indeed, the essential nature—of the work of some of the bodies included in the Bill that the noble and learned Lord, Lord Woolf, and other noble Peers have highlighted, I wish to address whether the Bill includes adequate provision to ensure proper parliamentary control. The problem of course, as noble Lords have all agreed, is that the Bill itself is fundamentally flawed. It is the prerogative of Parliament to make laws, and that prerogative has been exercised on numerous occasions to enable the creation of many of the bodies that are referred to in the Bill, although others were created by royal charter. On each occasion, the passing of the legislation was designed to address a lacuna in current provision and, in many cases, to provide protection in accordance with such fundamentals as the principles of natural justice and human rights. The noble Lord, Lord Ramsbotham, has already referred to the peculiar nature of the impact assessment that has been produced for the Bill.
The Bill seeks to delegate powers to Ministers to abolish, merge or modify the bodies listed in the schedules to the Bill. Noble Lords have already pointed to the significance of the individual statutory duty on many of those bodies. The Constitution Committee has declared that, in the cases that it examined, the question was whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards. The committee stated:
“In our view, the Public Bodies Bill … fails both tests”.
As the noble Baroness, Lady Andrews, says, the Delegated Powers and Regulatory Reform Committee, which is representative of all parties, unanimously agreed that,
“the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
There has been no change to the essential nature of Clauses 1 to 5 and Clause 11 in the amendments presented by the noble Lord, Lord Taylor. As the noble Lords, Lord Pannick and Lord Lester, have said, when there is a delegation of a legislative power, it must be accompanied by adequate powers of parliamentary control and scrutiny. Where delegation itself is inappropriate and unconstitutional to the extent that the delegation proposed in this Bill has been declared to be, there can be no adequate powers of parliamentary control and scrutiny to redress the mischief clearly contained in the Bill.
The Government have argued that there are time pressures which mean that the legislation must be presented in this form rather than through primary legislation. I suggest—and, indeed, submit—that the effect of this legislation, if passed, would be to lead to very extensive and expensive litigation, some of which would probably end up in the highest courts, both here and in Europe. Even if this Bill were passed, it would become necessary to engage in a long and exhaustive process of consultation for each body. While in some cases the outcome might be simple, in others it clearly would not be the case. Huge concern has been articulated in the public domain.
This Bill, which places in peril the ongoing existence and functions of fundamentally important bodies such as the Office of the Director of Public Prosecutions, the Equality and Human Rights Commission, the Criminal Cases Review Commission, the Independent Police Complaints Commission and the Chief Coroner's Office, cannot be subjected to sufficient parliamentary control by virtue of the provisions for control of the delegated legislative powers tabled by the noble Lord, Lord Taylor. I support the noble Baroness, Lady Andrews, in this respect. The impact of this legislation and the extent to which attempts have been made in the House to control the exercise of legislative powers do not address the issue.
Lord Phillips of Sudbury
Did the committee of which the noble Baroness is a member conclude that the powers in this Bill are unprecedented in terms of delegation?
Baroness O'Loan
I would not wish to speak of the committee without referring back to the report, but we did conclude that the delegation of these powers was inappropriate. We also concluded that, unless there were changes to the legislation, Clause 11 and Schedule 7 should be removed from the Bill.
Lord Hunt of Kings Heath
I shall speak to my Amendment 175 and support the amendments in the names of the noble Lords, Lord Lester and Lord Pannick, and my noble friend Lady Hayter. At Second Reading we made it clear that our concerns with the Bill were not with the principle of a regular review of public bodies or—I say this to the noble Lord, Lord Renton—with the tidying-up process. Our overriding concern is with the draconian powers that could be available to Ministers. I am the first to acknowledge that the noble Lord, Lord Taylor, has introduced a series of amendments and I am grateful to him for so doing, but I simply do not think that they go far enough. The Government have underestimated the concerns of noble Lords. My noble friend Lord Soley was surely right that the amendments are surprising in view of the trenchant criticism made of the Bill by two committees of your Lordships' House. The Constitution Committee said that the Bill,
“strikes at the very heart of our constitutional system”,
while the Delegated Powers and Regulatory Reform Committee said that it considered,
“the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
That is the context in which we consider this group of amendments. The noble Lord, Lord Elystan-Morgan, said that it is not really about the 450 bodies listed in the Bill; it is about the relationship between the Executive and Parliament. He is absolutely right.
Lord Taylor of Holbeach
My Lords, I rise to speak to the Government’s amendments in this grouping. I am delighted to have the chance to debate these amendments which, as my noble friend Lord Lester has pointed out, are crucial to maintaining Parliament’s confidence that these powers will be used effectively and appropriately. I am encouraged by the level of consensus on the objectives of these amendments, along with those in subsequent groups that have been tabled with the aim of strengthening the framework in which these powers will operate.
I am determined to knock this Bill into shape. We have heard a number of contributions that could be considered to be Second Reading speeches, and we have had to go over ground covered at Second Reading. I do not hesitate to revisit this matter because it is important to reassure the Committee that one cannot sit in this House without being aware of the need to get the balance right between Parliament and government.
I thank my noble friend Lord Renton of Mount Harry for his contribution. He recognised that the Government needed to tackle this problem of public bodies efficiently and effectively because the public expect that of Parliament. However, I understand that Parliament itself, having set up bodies by primary legislation, feels that it needs its say in the process of reorganising public bodies, in specifics and in general.
My noble friend Lord Newton asked that I recognised the difference between explicit and implicit wording in the legislation. I understand that; it is a valuable point and I am grateful to him for making it.
I cannot go all the way suggested by the noble Lord, Lord Clinton-Davis, who asked me to withdraw the Bill. That is a big ask, if I might say so, and I hope that he will understand that I might not be able to meet it. I have to be honest; I do not think that I will be able to meet all the views expressed in this debate. The noble Baroness, Lady O’Loan—she is not in her place at the moment, unfortunately—took a fundamentalist view of the use of legislation of this type to try to deal with this matter. However, from the contributions of the noble Baroness, Lady Andrews, and the noble Lord, Lord Soley, I felt that they wanted some success out of the Bill. It would be wrong of me not to say that I listened to their contributions with great interest, as I did at Second Reading. I noted, too, the contribution of the noble and learned Lord, Lord Lloyd of Berwick. I will refer to the contribution made by the noble and learned Lord, Lord Woolf, and to other contributions on particular aspects of the subject where I am grateful for the elucidation that we received.
I said at Second Reading that I would seek to amend the Bill to safeguard the independence of public bodies in exercising certain functions. Government Amendment 108 does just that by amending Clause 8 to ensure that Ministers consider the need for functions to be exercised independently because they require professional or specialist expertise or impartial advice in respect of Ministers’ policy, or because they involve establishing facts in relation to scrutiny of Ministers’ actions. That set of amendments goes back to the Statement that I repeated in this House—if I remember correctly, it was 14 October—made by my right honourable friend Mr Francis Maude, as to the tests applied to public bodies. That must be placed on the face of the Bill, so that it is clear what test the Government apply in determining the validity of the independence of public bodies because of their functions.
The Delegated Powers and Regulatory Reform Committee’s report on the Government’s amendments states that the additional safeguards in Amendment 108 are still too limited. We take the report seriously and thank the committee again for its continued contribution to the debate on the Bill. On the important subject of safeguards, our amendments represent a proportionate response to the committee’s original concerns. We will of course consider further the detailed points raised in the committee’s second report and work with Peers to meet their concerns. On regulatory functions, the Government have already made it clear that they will not use the powers conferred by the Bill to make changes to network regulatory functions, and that such an exclusion is not necessary in the Bill.
In response to concerns raised on Second Reading, I have also tabled government amendments to make it clear that the necessary protections which the Minister must consider to be satisfied include the independence of the judiciary. I would like to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. However, given the concerns raised, I have included a specific reference to that principle.
Lord Lester of Herne Hill
My Lords, this has been a remarkable debate, with more than 20 speeches that will be read long after we are all dead, because the importance of this constitutional issue transcends anything that we are considering today. I am grateful to all noble Lords and to the Minister for their contributions. I will make no attempt to summarise or reply to the more than 20 speeches, although I will say that I find myself agreeing with almost everything in all of them.
Before I explain what I think is the right approach, I will respond to what the Minister has just said by noting the gains that we have made and those that we still need to make. I think that that is the most practical way of proceeding and I shall, I hope, do it quickly.
The Minister’s first point was that he wants, through government Amendment 108, to amend the Bill to safeguard the independence of public bodies in exercising certain functions by amending Clause 8 to ensure that Ministers consider, and so on. The problem with that amendment, as several noble Lords have said, is that it relies on the subjective consideration of the Minister, and that, I think, is something to which we shall have to return.
The report of the Delegated Powers and Regulatory Reform Committee says that the additional safeguards in Amendment 108 are still too limited. The Minister helpfully explained that the Government take the report very seriously and that they are going to consider it and further detailed points, which is most welcome. He then made clear the necessary protections which the Minister must consider to be satisfied, including the independence of the judiciary. He explained that he wants to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. That, of course, is the reassurance that one would hope for.
The Minister then dealt with my amendment which says that the powers must be exercised in a way that is compatible with judicial independence and the exercise of judicial functions. He indicated that he will take away my concerns and think about whether that can be reflected in the Bill. That is most welcome and I am grateful.
He then said that, given the concern expressed by noble Lords, he will look again at the inclusion of bodies with a judicial function in Schedule 7. He reassured us that he will bring forward amendments in relation to those bodies for a debate on the schedule later in Committee. Again, I think that the Committee will find that most welcome.
The Minister then mentioned human rights, pointing out that there is no need to refer to the convention rights in the Bill. However, that does not deal with the problem of rights going beyond the convention in common law and equity. That may be something that one needs to think about hereafter.
He then turned to the notion of necessary protection in the Bill, confirming that it extends to economic protection, health and safety, and the protection of civil liberties and the environment. That, again, is welcomed. He then turned to the important question of proportionality and said that he is still inclined to think that a specific reference to it is not needed in the Bill. I strongly disagree with that—a view that I think was expressed by several noble Lords.
The Minister dealt with the orders under Clause 11 and said that he would look again at whether there was any benefit in extending Clause 8 to apply to the powers in Clause 11. I think that most noble Lords hope that that will be done.
He then dealt again with the phrase “if the Minister considers”. However, most noble Lords have indicated that that is not good enough. The Minister said that he thought the Government’s amendment strengthening the requirements in Clause 8(2) struck the right balance, whereas he believed that the regulatory reform committee’s suggestion that it should be for Parliament would not strike the right balance. That is clearly a matter for future debate.
The Minister then turned to the interesting points made by the noble Baroness, Lady Hayter, concerning her amendments. I think that the Minister may have misunderstood the noble Baroness’s point. It is not about independence at all. She submitted that one needs to make sure that Ministers understand the core functions and raisons d’être of a particular organisation before they even think of exercising ministerial powers. That is something that the Minister may therefore want to consider.
I come to what is called the courage of my convictions. I do not need any instruction on the courage of my convictions, but I am a practical fellow and trying to think about what is the most sensible way forward. We all know that it is the practice of this House not to make amendments in Committee unless there is an extremely good reason for doing so. In this case, I want to leave breathing space between now and further proceedings in Committee—not between now and Report—to give the Government the opportunity to do the sort of things that the Minister has indicated today and which noble Lords around the Committee have also indicated. Having heard noble Lords speak, I do not think that Amendment 175 goes far enough. If I divide the Committee, I will probably win on Amendment 1, but it will serve no practical purpose unless a clear series of safeguards follows.
Lord Pannick
After a two-hour debate on matters of fundamental importance, does the noble Lord accept that it would be of value for the Committee’s opinion to be tested so that the Minister—whose open attitude is much admired by all noble Lords—and the Government generally are left in no doubt of the Committee’s views on the need for further essential safeguards to be written into the Bill?
Lord Lester of Herne Hill
I am grateful to the noble Lord for asking a question which I am trying to answer as I speak. The Minister will have heard everyone around the Committee. I am sure that some of us recall what was once said by Archbishop William Temple in a famous lecture: “Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”. The Minister has heard the voice of a united Committee, and I am going to be pusillanimous and much criticised for my moderation in not dividing it. However, I do so as a friend and supporter of the coalition. Unless we get the amendments that have been asked for on all sides of the Committee, this Committee will act as the ticket collector rather than myself. If we are trying to achieve a constitutional Bill that we can pass, the right way to do that is not by flexing our muscles on Amendment 1 and proceeding on that basis.
Baroness Hayter of Kentish Town
Can the noble Lord explain the difference between the strength of feeling at Second Reading—which we agreed was very strong and very united, but not tested because of the protocols of this House—and the strength of feeling today? If I understand him, he feels that he has not yet been heard properly by the Government. Why does he think that the strength of feeling today is different from that on the previous occasion and, therefore, that it will be heeded on this occasion?
Lord Lester of Herne Hill
I do not think that it is different. If anything, it is stronger; but it is certainly as strong as it was on Second Reading. I am trying to consider how best to persuade the coalition Government, whom I support, to make these changes. I believe that we will have more influence by not dividing the Committee. Having said what I have said, I hope that noble Lords, except those who are dying to win a vote, will hold off for now so that we can come back quite strongly—
The Countess of Mar
Does the noble Lord appreciate that he might withdraw his amendment, but that the Committee might not agree that the amendment can be withdrawn when it is called?
Lord Lester of Herne Hill
I appreciate that. I ask noble Lords to consider that, if there were a vote, I would not be able to support it; and on that basis, I think it would be quite likely that, if my noble friends agreed with me, the vote would be lost. That would be a misfortune. I think it is much better that we stay united and that the Government listen to the Committee as a whole rather than that we play games at this time in the afternoon.
Lord Soley
I understand the noble Lord’s dilemma as we have discussed it before. If I were asked whether the Minister will try to help the Committee, I would answer yes, because I think that he really wants to. However, I do not think that that is the problem. I think the problem is that the Government have got themselves locked into a position where this Bill in its present form is necessary to them. I would like to lend strength to the argument of the noble Lord, Lord Taylor, and winning a vote would do that.
Lord Lester of Herne Hill
I am grateful to the noble Lord, but in the end I have to form a judgment about how we as creditors, coming to the aid of the Government who need our support, can best produce a stabilisation grant that will enable them to do so at a time where there is this great difficulty. My judgment is that by being moderate today, we will have more credit for the future. If I am mistaken, I promise Members of the Committee that I shall not be able to be as loyal as I am today to the discipline imposed on us. Having said all that—and it is not a threat, simply a promise—I beg leave to withdraw the amendment.
Baroness Royall of Blaisdon
In moving Amendment 2, I shall speak also to Amendment 181. These amendments would introduce a sunset clause to the Act, which would mean that it will automatically expire five years after coming into force. As a natural consequence, the powers of Ministers to make orders abolishing or fundamentally changing these bodies will also expire at this time. It was the Second Reading speeches of the noble Lords, Lord Norton of Louth and Lord Kirkwood of Kirkhope, and of the noble Viscount, Lord Eccles, that made me reflect further on the wisdom of a sunset clause for the Bill, as did the first report of the Delegated Powers and Regulatory Reform Committee. The effect of a sunset clause is to set a deadline for the end of this legislation in the event that Parliament decides to enact it into law. It is a prudent step in relation to this Bill.
My reasons for tabling the amendments are twofold. First, like noble Lords on all sides of the Chamber, we agree that many arm’s-length bodies play an important part in our public governance and public life. However, they must be effective and efficient and they must not be set in aspic. We must be able to improve and streamline them, as the noble Lord, Lord Renton of Mount Harry, said in our earlier debate. There needs to be a sensible alternative to the status quo, which is what the Labour Government were developing in our March White Paper. When we were in office we managed to cut the bodies which had come to the end of their usefulness—to which my noble friend Lord Warner can give testament—and we recognise that there must be a means by which this can be done. We do not agree with the Bill in its present form, but if we are able to amend it in an acceptable way, then, like the noble Lord, Lord Norton, and others, we believe that it would be appropriate to consider a Public Bodies Bill in each Parliament to enable tangible proposals to be put forward and properly scrutinised by both Houses. In this way, we will continue to recognise the importance of bodies being accountable not to the Government or the Minister of the day but to Parliament.
Secondly, I reiterate the sentiments of my noble friend Lady Andrews which she expressed so cogently during the debate on Second Reading. She said:
“We have a Bill that brings with it a threat of future changes that are as yet unknown either to the institutions identified or to the Ministers in place”.—[Official Report, 9/11/10; col. 86.]
The noble Baroness, Lady O’Loan, observed earlier that this Bill places many organisations in peril. It is not appropriate to continue an indefinite threat to the bodies listed in any of the schedules to the Bill, and Clause 11 and Schedule 7 are particularly insidious. They are a feature of the Bill that noble Lords have quite appropriately labelled as “pernicious”, a “zombie list” and a “death row for quangos”. The noble and learned Lord, Lord Woolf, made another powerful speech today, as did the noble and learned Baroness, Lady Butler-Sloss. How can a body such as the Gangmasters Licensing Authority be on Schedule 7?
The Minister was asked repeatedly during the Second Reading debate what bodies were included in Schedule 7, what the rationale was and what the Government’s criteria were for establishing that status. The Minister did not answer the points during the debate but, understandably, he promised to come back at the Committee stage with amendments to address the concerns expressed. He has indeed tabled amendments, but none of them addresses the underlying concerns about why bodies are included in Schedule 7, or why they, their staff and the people they serve are made to live with constant insecurity. If the Minister was serious about the concerns—as I believe he was—he would have recognised more fully that the only way of addressing them is to table an amendment to delete Clause 11 and Schedule 7. He has not done this and the safest way to proceed is with a sunset clause, even if, as I hope, later in the proceedings the Minister either accepts the amendments to Clause 11 and Schedule 7 or the clause and the schedule are defeated.
It is not right and proper that the powers granted by the other schedules are left unchecked for Parliament after Parliament. The noble Viscount, Lord Eccles, said at Second Reading that a sunset clause would hold the Government’s feet to the fire and ensure that they acted. I am sure that this is correct. It would also ensure that in each Parliament specific organisations are considered. I would hope that this would follow consultation and would not be out of the blue, but there would be an opportunity in that case for proper parliamentary scrutiny and debate, something which we are denied by this Bill.
I also wonder what consideration is being given to the many new quangos which have already been announced by the coalition Government. It may be that this Government or some future Government would wish to consider their viability in the long term, and it may be that a Public Bodies Bill in each Parliament would enable Parliament to address the viability of the bodies which are now being created.
I learned the value of sunset clauses from the Constitution Committee of your Lordships’ House in discussions before, during and after publication of its excellent report, Fast-track Legislation: Constitutional Implications and Safeguards. It took me a while, but I got there in the end and fully accepted what the Constitution Committee was wisely telling us. One of the reasons for a sunset clause in expedited legislation is that such legislation is, by necessity, hastily drafted. There is no necessity here for hasty drafting. The Government have given no clear reason why we are being asked to consider a Bill that has been so hastily drafted. Indeed, the Minister seems to have tabled an almost unprecedented number of stand-part interventions to oppose clauses of his own Bill. We all agree that a great deal of change needs to be made to the Bill and we shall be testing the strength and coherence of those amendments during the course of the debate, as we shall with our amendments and those of other noble Lords.
As has been said repeatedly today, the Bill fundamentally alters the balance of power between the Executive and Parliament with its “misconceived delegated powers”. It is sidelining Parliament by legislation. I recommend Amendments 2 and 181 as both reasonable and necessary so that we strike the right balance between accountability to Parliament and an ongoing public bodies review regime. I think the vast majority of noble Lords believe that it is right and proper to keep these bodies under review. I beg to move.
Lord Taylor of Holbeach
My Lords, these amendments of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt, would have the effect of time-limiting the Bill for a period of five years following Royal Assent. After this time the Bill would expire and Ministers would no longer be able to make use of the order-making powers within it to make changes to public bodies. I recognise, as the noble Baroness did when presenting them to the Committee, that these amendments have their origins in the Second Reading debate and the contributions of a number of my noble friends explaining why they thought that a sunset clause might be a good idea. The Constitution Committee also suggested that in its report, as well as suggesting that the Bill’s order-making powers are broad and not balanced by appropriate safeguards and parliamentary scrutiny. That was its position.
The government amendments address these concerns. They protect the independent exercise of important public functions and give Parliament an enhanced role in scrutinising orders made using the Bill. In doing so, they provide great reassurance that both this and future Governments will use the Bill’s powers in the responsible and considered manner that I know your Lordships would expect.
By sunsetting the Bill as the amendments propose, Parliament would be denying the opportunity to use the Bill to make changes to public bodies following the five-year period. This seems to me a disproportionate response. I recognise noble Lords’ concerns about the Bill—and we have acted to address those concerns—but I also recognise the wide support for the policy intent not only in Parliament and among the general public but, indeed, on the Benches opposite, as the noble Baroness, Lady Royall, said in her remarks about the need to review public bodies.
The Government’s preferred approach is to pass a Bill which allows the flexibility to make changes to public bodies quickly when it is in the public interest, but which also ensures the protection of important public functions and allows for full consultation and parliamentary scrutiny. However, there is a strength of feeling in the Committee that the Bill and the powers in relation to the relevant schedules should not be open-ended, and I must take account of that.
We could sunset in relation to the bodies in Schedules 1 to 6 at five years, as these relate to agreed proposals which will be implemented within that timeframe or, in the majority of cases, much sooner. However we accept that that is not noble Lords’ main concern, and that we therefore have to look again at the powers in Clause 11, which relate to Schedule 7. If it is not possible to provide the reassurances needed, we will have to look to the possibility of further primary legislation in five years’ time to effect any future reforms—and I am sure that noble Lords would look forward to the prospect of another Public Bodies Bill with great anticipation. I therefore ask the noble Baroness to withdraw her amendment so that we can consider my suggestions.
Lord Soley
The Minister now understands clearly—and probably has done from the beginning—that there is acute concern about the Bill. He also understands, which perhaps other people do not immediately understand, that there is a great deal of support for some structure or agreement on how we can reform these bodies. Is it not possible to perhaps come back to the House on the sunset clause and, in the mean time, talks could take place between the parties and the Cross-Benches on what would be a good model to bring before the House in five years’ time? We could end up with better legislation, even if it takes five years to get it.
Lord Taylor of Holbeach
I thank the noble Lord, Lord Soley, for that suggestion. It is well intentioned and reflects a course of action which is open to the Government. At the moment, I believe there are ways of sunsetting within the Bill as it currently stands which might be used positively to enable the Bill to be used to better effect. I should like to use the time between now and Report to be able to discuss that, which is why I am asking the noble Baroness to withdraw her amendment. This matter has been raised in our discussions outside the Chamber.
Lord Adonis
Did I understand the Minister to say that the further conversations he would undertake with my noble friend would concern the possible sunsetting of the entire Bill? He elided his comments about some sections of the Bill with a comment that he would be prepared to discuss the sunsetting of Clause 11. I think that my noble friend’s concern goes considerably wider than Clause 11. Could he clarify what he is prepared to consider sunsetting?
Lord Taylor of Holbeach
I am prepared to consider everything. I do not rule anything out, because that is the wrong way to approach discussions. I gave an indication, however, of the implications of different sunsetting. Sunsetting the whole Bill would mean that we would need another Bill in five years, if it was determined that that was necessary. Sunsetting clauses of the Bill is a different approach. I have also made it clear in my response to the amendment that the Government are looking at the interaction of Clause 11 and Schedule 7, and at whether sunsetting might help relieve some of the anxieties, well expressed across the Chamber, about those sections. I hope that I have been pretty open about where we are looking at sunsetting. I assure the noble Baroness that, should she withdraw her amendment, we would enjoy discussing this matter with her and other Members of the House who have expressed an interest.
Baroness Royall of Blaisdon
My Lords, I am grateful to the Minister for his response to my amendments. I think that he has said that he is willing to consider sunsetting the whole Bill as well as specific clauses within it. He is nodding his head, so I take it that that is so. I shall therefore not press my amendments. I look forward to discussions with the Minister and the Bill team. My noble friend Lord Soley suggested that we might try to do this on a whole-House basis. I realise that one does not have representatives from the Cross-Benches, but if we can ensure that someone from those Benches who is particularly concerned about this aspect of the Bill is present, together with somebody from the Liberal Democrats and the Conservatives—because they would perhaps have different views—I shall willingly withdraw my amendment.
Controlling Migration
(14 years, 1 month ago)
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The Minister of State, Home Office (Baroness Neville-Jones)
My Lords, with the leave of the House, I should like to repeat a Statement made in the other place.
“With permission, Mr Speaker, I would like to make a Statement on immigration.
Controlled migration has benefited the UK economically, socially and culturally, but when immigration gets out of control, it places great pressure on our society, economy and public services. In the 1990s, net migration to Britain was consistently in the tens of thousands each year, but, under Labour, it was close to 200,000 per year for most years since 2000. As a result, during Labour’s time in office, net migration totalled more than 2.2 million people, which is more than double the population of Birmingham. We can’t go on like this.
It is our aim to reduce net migration from the hundreds of thousands back down to the tens of thousands. To achieve this, we have to take action across all routes to entry— work visas, student visas, family visas—and to break the link between temporary routes and permanent settlement.
On the work routes, all the evidence shows that it is possible to reduce numbers while promoting growth and underlining the message that Britain is open for business. After consulting widely with business and with the Migration Advisory Committee, I have decided to reduce economic migration through tiers 1 and 2 from 28,000 to 21,700. This would mean a fall of more than a fifth compared with last year in the number of economic migrants coming through tiers 1 and 2, excluding intra-company transfers.
Business groups have told us that skilled migrants with job offers, tier 2, should have priority over those admitted without a job offer, tier 1. I have therefore set the tier 1 limit at 1,000, a reduction of more than 13,000 on last year’s number. Such a sharp reduction has enabled me to set the tier 2 limit at 20,700, an increase of nearly 7,000 on last year’s number.
The old tier 1, which was supposedly the route for the best and the brightest, has not attracted highly skilled workers. At least 30 per cent of tier 1 migrants work in low-skilled occupations such as stacking shelves, driving taxis or working as security guards, and some do not have a job at all. So we will close the tier 1 general route.
Instead, I want to use tier 1 to attract more investors, entrepreneurs and people of exceptional talent. Last year, investors and entrepreneurs accounted for fewer than 300 people. That is not enough. So I will make the application process quicker and more user-friendly, and I will not limit the number of those wealth creators who can come to Britain.
There are also some truly exceptional people who should not need sponsorship from an employer and whom we would welcome to Britain. I will therefore introduce a new route within tier 1 for people of exceptional talent—the scientists, academics and artists—who have achieved international recognition or are likely to do so. The number will be limited to 1,000 per year.
Tier 2 has also been abused and misused. Last year, more than 1,600 certificates were issued for care assistants to come to the UK. At the same time, more than 33,000 care assistants who are already here were claiming jobseeker’s allowance. I shall restrict tier 2 to graduate-level jobs.
On intra-company transfers, we have listened to business and will therefore keep those transfers outside the limit. However, we will set a new salary threshold of £40,000 for any intra-company transfers of longer than 12 months—recent figures show that 50 per cent of intra-company transfers meet those criteria. This measure will ensure that those coming are only the senior managers and key specialists that international companies need to move within their organisations.
I thank the Migration Advisory Committee for its advice and recommendations. Next year, I will ask the committee to review the limit in order to set new arrangements for 2012-13.
However, the majority of non-EU migrants are students. They represent almost two-thirds of non-EU migrants entering the UK each year, and we cannot reduce net migration significantly without reforming student visas. Honourable Members might imagine that by ‘students’ we mean people who come here for a few years to study at university and then go home. But nearly half of all students who come here from abroad come to study a course below degree level, and abuse is particularly common at these lower levels. A recent check of students studying at private institutions below degree level showed that a quarter could not be accounted for. Too many students at these lower levels have come here with a view to living and working rather than studying. We need to stop that abuse. Therefore, as with economic migration, we will refocus student visas on those areas which add the greatest value, and where evidence of abuse is limited.
I will shortly be launching a public consultation on student visas. I will propose to restrict entry to only those studying at degree level, but with some flexibility for highly trusted sponsors to offer courses at a lower level. I will also propose to close the post-study route, which last year allowed some 38,000 foreign graduates to enter the UK labour market at a time when one in 10 UK graduates were unemployed.
Last year, the family route accounted for nearly 20 per cent of non-EU immigration. Clearly, British nationals must be able to marry the person of their choice but those who come to the UK must be able to participate in society. From next week we will require all those applying for marriage visas to demonstrate a minimum standard of English. We will also be cracking down on sham marriages and will consult on extending the probationary period of settlement for spouses beyond the current two years.
Finally, we need to restrict settlement. It cannot be right that people coming to fill temporary skills gaps have an open access to permanent settlement. Last year, 62,000 people settled in the UK on that basis. Settling in Britain should be a privilege to be earned, not an automatic add-on to a temporary way in. So we will end the link between temporary and permanent migration.
I intend to introduce these changes to the work route and some of the settlement changes from April 2011. I will bring forward other changes soon after. This is a comprehensive package that will help us to meet our goal of reducing net migration at the same time as attracting the brightest and the best and those with the skills our country needs. This package will serve the needs of British business. It will respond to the wishes of the British public. It will give us the sustainable immigration system that we so badly need”.
My Lords, that concludes the Statement.
Lord Hunt of Kings Heath
My Lords, I thank the Minister for repeating the Statement and for clarifying the confusion caused by the misleading leak of the contents of the Statement to the BBC this morning—not the first time that that has happened.
I am sure that the Home Secretary is right to say that migration has made, and continues to make, a significant contribution to the economic vibrancy, business strength and social vitality of our country. She is also right to say that it is essential that migration is properly controlled for reasons of both economic well-being and social cohesion. The question is: how does one achieve that? Over the past few years, the Labour Government put in place transitional controls on EU migration, a suspension of unskilled work permits, a tough but flexible points system to manage skilled migration, tighter regulation of overseas students leading to the closure of 140 bogus colleges, and new earned citizenship requirements for those seeking settlement.
At the general election, the leader of the Conservative Party proposed to go further in two key respects. First, he proposed a new target, reaffirmed in last week’s debate in the other place by the Parliamentary Under-Secretary, to reduce net migration to tens of thousands by 2015. To meet that target, he pledged a cap on immigration which he said would be tougher than the points system. At the time, the leader of the Liberal Democrats said that they did not come up with promises like caps which did not work; he then agreed to the cap in the coalition agreement.
Since then the Government have been in wholesale retreat and today they are in some confusion. The CBI, the chambers of commerce, universities, Nobel prize winners, UK and foreign companies—large and small—have all highlighted the huge damage the Government’s proposals mean for business investment, research and job creation.
The Home Affairs Select Committee in the other place, and the Migration Advisory Committee, have highlighted that the proposed cap not only excludes EU migration but covers only 20 per cent of non-EU migration, with overseas students and family members being outside the cap entirely. At the weekend, the business editor of the Sunday Telegraph wrote that the Government’s “ill considered immigration cap” has had,
“the bizarre result of causing substantial problems for Britain's leading businesses whilst at the same time having only the most minor of impacts on the number of people actually coming to the UK”.
We have had the sight of the Prime Minister hinting at concession after concession in the face, we read, of opposition from the Home Secretary. But, then again, thanks to the excellent public lobbying and guerrilla tactics of the Business Secretary, the Home Secretary has now come to the other place to confirm the details of that retreat.
While we will need to keep a close eye on how our proposals will affect business and science, we certainly join business representatives in welcoming the decision to exempt intra-company transfers of workers. What has caused the confusion is this morning’s briefing to the BBC that the total cap would be 42,700 work permits. I understand that mid-morning the Home Secretary’s officials had to clarify to the Press Association that there is no such cap on that scale. My understanding from the Statement, as the noble Baroness has repeated, is that the Home Secretary will allow 21,700 tier 1 and 2 work permits, but with no cap on migration due to intra-company transfers. I ask the noble Baroness what the overall reduction will be as a result of the so-called cap announced today. If the number of intra-company transfers goes up, can the noble Baroness tell the House whether she will then put in place an offsetting cut in tier 1 and 2 permits? If not—and I know business representatives will very much hope that the answer is not—can she confirm that the supposed cap is in fact just a guess; a fig-leaf and no cap at all? This is a policy designed for an election campaign, but not suited to the reality of Government or the actual long-term interests of the UK.
Given her Permanent Secretary’s revelation this morning that her department will lose 9,000 jobs—the bulk of which will be in the UK Border Agency—is the Minister confident that she will have enough resources to enforce her migration policy and keep our borders secure?
On family reunification, the Statement had nothing new to say. No estimate was given to the House of how many fewer visas she will need to grant by 2015 to meet the Prime Minister’s target. On overseas students, we are promised another consultation and, again, with no estimates. Why is that? Could it be that the Prime Minister is simultaneously travelling to countries of the world, inviting students to come to Britain to study and the Business Secretary is telling our universities that they can live with an 80 per cent cut in teaching budgets because they can mitigate the loss with fees from overseas students? Is that the position?
I would also like to ask the noble Baroness whether it is still the objective of the Prime Minister and the Government to cut net migration to the tens of thousands by 2015. I notice that in the Statement the goal was repeated but we no longer get the date of 2015. Can the noble Baroness reaffirm that the 2015 promise still stands? It is a simple question: is the tens of thousands pledge still binding by 2015?
Baroness Neville-Jones
My Lords, I, too, listened to the debate in the Commons and I note that the Speaker did not admit the proposition that there had been a leak from the Home Office. I do not believe that there was a leak from the Home Office. This is not an instance that can be cited in that direction.
The noble Lord asked a number of questions—
Baroness Neville-Jones
I am glad that the noble Lord agrees with the proposition that migration needs to be controlled. I will deal with his points about targets. We do indeed stand by the target of cutting migration to tens of thousands by the end of this Parliament, and we believe that the UK Border Agency will have the resources to ensure that it plays its part in bringing about that conclusion.
As for whether the limits serve the economic interests of the country, I note that the Daily Telegraph wrote its article before the Statement was made. Since my right honourable friend made the Statement—which, I might say, is the outcome of consulting, not of confusion—the CBI has expressed its satisfaction with the new system, which it believes will serve the economic interests of the country. Therefore, I believe that neither the charge that we are not listening nor the charge that we are confused stands examination.
On the question of intra-company transfers, our objective is to ensure that companies can transfer the people whom they need. That is why we have not put a limit on intra-company transfers. We will monitor intra-company transfers and look at how the process for that particular category of people goes. For instance, if need be, we will look at whether qualifications such as the level of salary are needed for intra-company transfers. However, we do not intend to relate that particular tier to other tiers. It is clear that we take the view that, after consultation with industry, it is important that companies have that flexibility. That means that, in other areas, we will also look at the limits that have been set for the time being, as indicated in the Statement.
Baroness Hamwee
My Lords, I ask the Minister to clarify a couple of issues regarding the paragraph about family members. The Statement says that from next week—although we are told at the end of the Statement that most of the changes will come in next April or soon after that—those who apply for a marriage visa will be required to demonstrate a minimum standard of English. Can she confirm whether that is about providing evidence that the marriage is not a sham marriage, or is that a completely separate matter? Does the Minister agree that English is best learnt in the country where it is spoken?
Secondly, does the Minister agree that there is a need for proper training and skills provision for some of those whom we may find it difficult to identify in future? The Migration Advisory Committee’s report rightly talks about the need for employers to provide training, but it also states:
“Some priority may also be required for limited migration into vital public services such as … social care.”
In the context of the reference to the care assistants who are already here, does the Minister accept that those who work in the social care sector need not just technical but—if I may put it this way—cultural skills as well? I say that having talked at the weekend to a trustee of a care home who tells me that Filipino care assistants have a much better idea of how to look after elderly people than, I am afraid, British people seem to have.
Baroness Neville-Jones
On family migration and language, I entirely agree with my noble friend that you best learn the language when you are in the country. We are not demanding anything more than the lowest possible level of competence by way of an entry requirement, but we believe that it is necessary to insist that integration and the ability to participate in society are objectives that everyone who comes to this country should share. We believe that the capacity to communicate in the language is an absolutely fundamental requirement.
On the question of carers and skills, we will monitor the whole issue of skills shortages. Clearly, it does not make sense for us to impose limits in areas where there are skills shortages. However, as I said in the Statement, caring is not currently an area where a skills shortage arises. Nevertheless, my noble friend makes a good point that, if there is a lack of specialist skills within the caring profession, those could fall to be considered under a skills shortage category.
Lord Tomlinson
My Lords, I declare an interest as chairman of the advisory board of the London School of Commerce, which is a private sector college with highly trusted sponsorship status. I also declare my position as vice-chairman of the board of Anglia Ruskin University, which is a state university.
I broadly welcome the part of the Statement that deals with students because it avoids the major elephant trap, which has been around for quite a long time in higher education, of merely reiterating the mantra, “Public sector good, private sector bad”. That is wrong on both sides of the equation. Some of our universities are not particularly good, and some of our private colleges are extremely good. I think that the Statement more or less strikes the right balance, so I welcome it on those grounds.
The Minister is right to identify the number of students who come here to study at below degree level as a major problem, but what plans do the Government have to copy the best of the private sector in monitoring the continuous attendance of students at courses? At our college, we have brought to the attention of Home Office officials—we have invited them to come and visit—our system of digital identification, which gives us a link with students that means that it is not a surprise to find that all students are in attendance and we can be aware of their non-attendance within days rather than weeks.
Finally, given that the Minister’s department has been in consultation with the sector almost continuously for the past five or six years, does she agree that the consultation should now be concluded fairly quickly? What is needed in both the public and the private sector is a period of stability in higher education, so that institutions can recruit students in the knowledge that the students will be able to attend. The modern practice of public and private working in partnership should surely be able to continue unabated by fears about the ability to get visas.
Baroness Neville-Jones
I am grateful for the noble Lord’s welcome of the general proposition that we have laid out.
On the noble Lord’s first point about the monitoring of educational establishments, including those that are in the category of highly trusted sponsor, there will indeed be monitoring. I think that monitoring is already in place for many schools that have had to register in order to be providers of English language teaching. The monitoring of attendance, of the qualifications awarded and of the compliance of the institution in meeting its obligations under its sponsorship arrangements will indeed be carried out and spot checks may occur. I think that all institutions will be on notice that their obligations need to be taken seriously. Of course, if institutions do not take those seriously, they will lose their sponsorship status.
On the noble Lord’s second point, we entirely accept that those who want to bring people into this country, whether for study or for employment, need to know where they stand. My right honourable friend the Home Secretary has made it clear that she wants to get through the next stage—clearly, a big block of migrant movement is by students, who are, at something like 51 per cent, by far the biggest category of migrants—as soon as possible. Progress must, if I may say so, be consistent with having a proper consultation on how to do that, but the object will be to conclude that consultation so that we can put in place a system—and a level—that is reasonable and that serves the interests of this country.
Earl Attlee
There is plenty of time. Let us have a Conservative and then a Liberal Democrat.
Lord Lucas
My Lords, I am grateful. I am delighted that there is to be a consultation on students and I hope that the noble Baroness will feel able to include me in that consultation as editor of the Good Schools Guide and let me know who else is being consulted. I very much hope that it will include all further education institutions, private and public. I regret the derogatory tone taken about that sector in the Statement; many good-quality institutions provide excellent courses below degree level, which are in great demand throughout the world. We should export a strong and large export industry employing many people in this country. I agree that it should have quality controls and that the previous Government were remiss in completely failing to install the sort of system that has just been talked about, but we should be positive about the sector and support it as there is a great deal of good there and a great deal of employment.
Baroness Neville-Jones
My Lords, I think that that sentiment would be widely shared in the House. It is certainly shared in the Government. If the consultation that has just been conducted on the employment sector is anything to go by, the House can be confident that this consultation will also be wide-ranging and thorough. In this particular consultation with business, we talked to something like 30,000 individuals and had something like 3,000 responses, which I understand was a record for this kind of consultation, speaking to upwards of 1,000 employers. I lay that on the line because it indicates that we have been a listening Government and far from a confused one. We will do the same in other sectors.
Lord Judd
Does the Minister agree that we should not simply acknowledge the contribution made by migration to this country but, across the political divide, warmly thank migrants for the tremendous contribution that they have made to the well-being and health of this country? Would she agree, too, that some pretty crude contradictions are inevitable in an immigration policy? On one hand, we are committed to the principles of a global market and encourage the free movement of goods and capital and the rest; on the other hand, there is no free movement of labour. That is a fundamental contradiction in the theory of the market. Does that not make it essential that we consult across government with all relevant departments about the compensatory measures needed in development policy, international financial policy and international economic policy for this distortion in the market? While doing that, how far do the Ministers with immediate responsibility discuss with colleagues in DfID the implications of a policy that seems to give priority to those who arguably are the people most needed in their own countries to build up their countries’ economy and provide employment opportunities for a wider cross-section of their populations?
Baroness Neville-Jones
My Lords, it is historically well based to assert that migration has been extraordinarily beneficial to this country. We have had immense advantage out of being an open society. The noble Lord asks whether we could be behaving in ways that disadvantage countries that need to retain their own talent. That is a perfectly fair point that goes to the core of successful development policies—because we do not have successful development in developing countries in the absence of the talent that they need to lead. That is one of the many reasons why we need to break the link between allowing or inviting people to come here and benefit from our education system and possibly taking subsequent employment without using this as a route to settle down here and leave their own countries, where they might benefit their own communities. I take the point absolutely. The policy that we are trying to pursue and that will draw some in—and we wish to see them here—is not designed to deprive countries permanently of their leadership talent.
Lord Maclennan of Rogart
My Lords, in the light of the Minister’s indication that there would be a limit of 1,000 people from scientific, academic and artistic communities and in view of the fact that this country has a high reputation in these fields, is it not a little unwise to announce an inflexible figure? Can she indicate how many people falling into that category have been applying for permits to come into the country? What consultation will she make in future to ensure that the number is sufficient to enable us to maintain our reputation in these fields?
Baroness Neville-Jones
I am trying to find the figure. I think that I am right and, if I am not, I shall correct myself on the record later and write to the noble Lord. My understanding is that 700 are being issued in that category, so the figure of 1,000 is not an unreasonable estimate of what is likely to be needed in this category. Of course, it is entirely without the complication of sponsorship or other qualification. We have sought to respond to the points that were made about our need for great talent to come here, but also to the desire of those who wish to come and work in our global-quality institutions. We will monitor all these figures and, if they turn out to be wrong, I am sure that the Government will want to change the limits. The last thing that this country needs is to impose an immigration policy on itself that does not meet its social and economic needs and benefit the population of the country.
Lord Anderson of Swansea
The proposal on marriage is fine in principle, but my experience is that so often sham marriages can proceed and succeed because there is no check at the end of the period as to whether they are subsisting. What assurance can the Minister give on the rigour of the checks carried out at the end of the two-year period? Otherwise, sham marriages will continue and proliferate.
Baroness Neville-Jones
The noble Lord is right that there is a problem here. We are looking at a possible extension of the period during which a marriage would have to subsist for it to be demonstrated not to be sham. That means that we will have to monitor that to be the case. The announcements being made in context form part of a wider view of how we monitor those who are let into the country and their compliance with the conditions under which they were permitted to enter. In a different context, I recall announcing how we were going to monitor English language schools. That undoubtedly imposes on the immigration system an extra duty when ensuring that terms are being met. However, it will be made very clear to those involved that the penalties for failure to comply are very high.
Viscount Waverley
Could systems be put in place to record those departing UK shores? If not, when might that happen?
Baroness Neville-Jones
That is something that we are working on, but I cannot give the noble Viscount a date because I am not informed of the timetable, but it is certainly a UKBA objective that we record the outward journey.
Lord Brooke of Sutton Mandeville
My Lords, can my noble friend expand a little on the reference to Highly Trusted Sponsors, who might be allowed to offer courses at a lower level—“Highly Trusted Sponsors” having an upper-case H, T and S?
Baroness Neville-Jones
My Lords, I fear we have another abbreviation. I am unable to give my noble friend a great deal of information, but two things are clear. There are already some institutions of extremely good standing that will, by definition, be given such a status and earn this soubriquet. Other institutions will be given time to qualify on the basis of their meeting the conditions of being a trusted sponsor. This involves being part of a reputable institution and having a record both of complying with the terms of the conditions and of being in a proper financial relationship when it comes to paying the necessary amounts for the sponsorship and visas of the individuals involved.
Lord Clinton-Davis
The noble Baroness said that too many students have been coming here to live rather than to study. Will she kindly say on what evidence she formed that view? In particular, can she indicate how many students of that character are doing that? Will she also outline the organisations or persons who have opposed or have reservations about the new regime?
Baroness Neville-Jones
My Lords, I am afraid that I cannot answer the third of those points. I will endeavour to investigate and see whether I can enlighten the noble Lord. I will write to him if that is the case. The abuse of study rights is pretty well documented. There were several cases last summer of organisations and institutions that were, frankly, bogus. They were offering places on non-existent courses to people who had come here with the objective of clearing off and getting employment. We know about this both in the educational context and in one or two terrorist cases. This is not a fiction.
There is also the question of those who may come here, first, as bona fide students but who then stay on and simply become part of the workforce. That is an abuse. On that score, something like 20 per cent of the students who entered in 2008 are still here. That was not the intention and should not be the outcome. Clearly this is neither a mythical nor particularly small category of individuals, and it needs to be controlled.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, for the convenience of the House, I should explain that today we split my original Amendment 3 into two. The reason for doing so is so that we can discuss the question of consultation separately from that of parliamentary scrutiny. In moving Amendment 3A I will also speak to Amendment 123.
I think we agree that consultation has to be a very important part of the process of dealing with the order-making powers that the Bill provides to Ministers. The noble Lord, Lord Taylor, has graciously acknowledged the concerns over the enormous discretion that the Bill seeks to give Ministers. The debate on consultation goes to one of the most important parts of the Bill. The amendments that the Minister proposes to move—and to which I am sure he will speak in this group—are very welcome as far as they go. They provide for statutory consultation and stipulate that certain interested parties must be consulted before a Minister can proceed with an order. The Minister must also consult any such persons considered appropriate, allowing for a wide and full public consultation or a more targeted approach, depending on the order.
As I have said, that is welcome as far as it goes in relation to Clauses 1 to 6. The problem is that it still leaves an awful lot of ministerial discretion in deciding whether there should be a full public consultation, and by what criteria a Minister should so decide. The Minister was very sympathetic to the last group of amendments in relation to the sunset clause. I hope he will also give my amendment sympathetic consideration. We are talking about an extraordinary range of powers being given to Ministers. We are also, in the list of organisations in each schedule to the Bill, talking about responsibilities of bodies that are extensive and, in many cases, impact widely on the general public. For that reason, there should be a clear principle in the Bill that, whenever an order is proposed by a Minister, the public should always be consulted. I hope the noble Lord will be sympathetic to that point of view.
I also ask the Minister to clarify one point in regard to his own amendments. In the helpful note of explanation that we received from his department in relation to his amendments, the point is made that there will be at least 12 weeks for consultation. I would be grateful if the Minister could confirm that and give a little more detail. In particular, will the 12 weeks encompass just the time for interested parties to comment, or could they also embrace the time taken for a Minister to respond to submissions or consultations? I would very much welcome clarification on that.
Baroness Andrews
My Lords, I support the amendment in the name of my noble friend. I very much welcome the Minister’s amendment but it is extraordinary that it was not included in the Bill initially. That reflects what has gone on in the review of public bodies. I declare an interest as chair of English Heritage and vice-president of the National Parks Association. In the time available there was not much opportunity for a public body to have a considered, sensible dialogue with Ministers. Many of the bodies that passed the three tests of independence, expertise and accountability are in Schedule 7 and do not know why that is or what will happen to them. It should be an absolute precondition that they, and the bodies identified in other parts of the Bill, are consulted about their future and the extent of the options being discussed.
In the course of the afternoon, noble Lords have raised their concerns in many different ways but the business of consultation goes far wider than that. It is a matter of basic courtesy that these bodies should be consulted, and that is what the Minister’s amendment provides for. However, as has been said, it is extremely important that people who are affected by the Bill and are nervous about the future of public bodies should have the opportunity to be consulted. I think, for example, of the National Parks Association and the national parks themselves which command such enormous popular support and are so important to many different communities, both regionally and nationally. They are in Schedule 7. If it was decided to move them into another schedule, the number of people affected by that decision would be legion. It would be a gross discourtesy not to give people an opportunity to be consulted. Many of the bodies in Schedule 7 are membership bodies and would want to take the views of their members into account. Indeed, their members would have very strong views. Therefore, there is a real issue here about the nature of the consultation, its extent and the certainties that we can count on in terms of public responsibility and consultation.
I very much echo what the noble Lord, Lord Hunt of Kings Heath, has just said about the need to be absolutely clear. The Cabinet Office guidance on consultation is very clear—12 weeks is the standard recommended time. Consultation in itself does not allow a huge amount of scope to discuss such serious matters, especially if it is held over a summer, as it often is. We need to be given guarantees that full and proper consultation will be carried out that is not compromised by a Minister saying that he will respond in due course. I am anxious that we should be given those assurances this evening.
Lord Maclennan of Rogart
My Lords, I should like to begin by expressing my appreciation to the Minister for having brought forward the new clause on consultation, which flowed directly from the debate that we had at Second Reading, in which concern was expressed about it. The Minister told my noble friend Lord Lester earlier that there would be further discussion on this matter at later stages of the Bill. Amendment 114 goes a long way to meeting the general requirement of public consultation. It would be helpful, and would attract the consent of noble Lords on all sides of the House, if we were given somewhat more specific indications about the time involved, although there are further provisions on that in Amendment 118. However, there remains an issue about the nature of public consultation. That matter was addressed by my noble friend Lord Lester in his earlier remarks and I was glad to hear the Minister respond positively to it. I note that an amendment in the name of my noble friend Lord Greaves, which has not yet been moved, contains specific proposals on how the Minister might indicate that he is seeking consultation and on the use of a government website. All these matters merit serious consideration. We should not regard provisions that are put forward as tokenism, and I do not for one minute imagine that that is the Government’s view.
Lord Clark of Windermere
My Lords, I should like to press the Minister a little on the Government’s new clause in Amendment 114, with specific reference to consultation on matters which might be devolved or partly devolved, particularly forestry. I take this opportunity to thank the Minister for the way in which he responded to my request regarding how the Forestry Commission might communicate with Members of this House on factual matters. Through his offices and those of the noble Lord, Lord Henley, we have found a means of communication through the all-party group on forestry. Unlike most of the other bodies that we are discussing, the Forestry Commission is accountable to the Crown as opposed to the legislature, which creates a problem. The Bill does not refer to the Forestry Commission but, rightly, to the forestry commissioners. As I explained at Second Reading, the 1999 Act devolved certain aspects of forestry which are planned to revert to central control, and this creates a very complicated body.
The Minister made the point that if matters pertained to Scotland or Wales, there would be a duty to consult Scottish Ministers or Welsh Assembly Ministers. Should we consult Scottish Ministers or Welsh Assembly Ministers as opposed to the Scottish Parliament or the Welsh Assembly given that we might have to find a statutory mechanism pertaining to the Scottish Parliament or the Welsh Assembly to enable us to communicate with those bodies? I should like the Minister to give me an assurance—I am sure that he will give it to me if he can—that a mechanism will be found to enable us to communicate with the Scottish Parliament or the Welsh Assembly.
Lord Greaves
My Lords, I have a number of amendments in this group—Amendments 115 to 117, 128, 129 and 170 to 172. They are all amendments to the three government amendments that have been put forward. Noble Lords know what those amendments say and can judge my amendments accordingly. The amendments that I have put down are very much along the lines of the amendments that I usually put down on consultation. I listened—as, no doubt, did many other noble Lords—with great admiration to all the detailed legal analysis on Amendment 1. I congratulate the Minister on understanding it all. We are dealing with something much more basic now that I do understand and in which I have been involved all my life—that is, public consultation.
As my noble friend Lord Maclennan said, these amendments put more detail on to the principles set out in amendments tabled by my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hunt of Kings Heath. The former states that,
“the Minister must conduct a public consultation”,
and the latter states that,
“the Minister must consult the public”.
That fundamental principle has to appear in the Bill. It is absolutely right that consultation should be with all the appropriate organisations, interests and individuals that the Government can identify. In addition to that, consultation has to be open and transparent. That means that anyone who wants to be consulted should have the right to be consulted. In other words, the definition of who is interested ought to be made by the people concerned.
The Government can never know who wishes to contribute in total and which contributions might be useful to them in improving what they propose, or in coming to the view that it is right or wrong. That principle is accepted in many areas, such as consultation over planning applications to a local authority. Local authorities all have a list of the people whom they automatically and systematically consult, such as neighbours—depending on what the proposed development is, people living within a certain radius of the proposed development or perhaps just people living adjacent to it. A whole series of organisations—some national, some local—also automatically get consulted. There is no problem about that; it is the kind of consultation the Government are talking about in the Bill. In addition, there is an open consultation. Traditionally, a site notice might be posted so that people who walk past can have a look and see that the application has been made. There may be newspaper advertisements in certain cases where the application is thought to be particularly important, or is specialist—applications for listed buildings, for example.
Probably universally now, an open invitation is put on the council’s website for people to put their views forward, and an increasing proportion of people do so that way. That is an open consultation—it is open to anybody to take part and the council has to consider those representations. It does not mean that the whole basis of local government collapses; it is just a normal part of the process. There is no reason whatever why the Government cannot accept that principle on the kind of proposals in the Bill, which are often far reaching. In many cases, the Government act in this way; they may have a specific obligation to consult certain people and bodies, but in addition they put things on websites and take account of what people say. However, that is fairly ad hoc at the moment; whether it is done depends on the people involved. The principle ought to be in legislation. The internet makes the whole process far easier. The idea of advertising in national newspapers, the London Gazette or whatever—nobody ever sees it—has been superseded completely. All the information can now be put on the internet via the Government’s websites and people can respond in that way, or write in if they wish to respond in that way. There is no reason why that should not happen.
My amendment is the standard one that I table whenever this kind of thing comes up in your Lordships’ House. I tabled it on the Academies Bill; we got a weak concession from the Government on consultation by school governing bodies proposing to become academies, which has turned out to be pretty feeble in practice. Consultation is not an option. It is essential and should be entrenched in the legislation. I can remember banging away on the same issue on the Marine and Coastal Access Bill and various local government Bills.
Lord Hunt of Kings Heath
The noble Lord has brought up a Bill of blessed memory to many noble Lords, including of course the noble Lord, Lord Taylor. Will the noble Lord, Lord Greaves, contrast the submissions that we received on the marine and coastal access path from organisations, including bodies listed in this Bill, with the position now? We have been overwhelmed with silence from those bodies. He may well share my concern about that. Officials in departments have clearly given the message to those bodies that they are not to say anything. The more I think about it, the more concerned I am about it.
Lord Greaves
My Lords, I heard the comments made to that effect by the noble Lord, Lord Hunt, on a previous amendment. He is right; it is the only explanation I can find for the devastating silence. In some cases I have gone out of my way to try to get information out of various bodies that may be affected by the Bill; no doubt other noble Lords have too. It has been like getting blood out of cheese on one hand, and on the other there have been subterfuge-type conversations: “I’ll have the conversation with you, but don’t tell anybody, will you?”. That is not satisfactory. It would help if the Minister could give us all an assurance that any such instructions that have been sent down the line will be countermanded immediately, so that those of us who are interested in these organisations can get the information that we legitimately need for when we get on to the detailed amendments and discussions that we shall have on the schedules, quite apart from the debate on this amendment.
Lord Hunt of Kings Heath
I doubt that the noble Lord will find any written instruction, but you do not need written instructions—you just need indications from officials that organisations that make trouble will find themselves in some difficulty. It is absolutely clear that that is the message that they have. I am pursuing this because it shows the chilling impact of the Bill. Any organisation listed knows that there will be repercussions if it makes trouble, and the Bill allows that. I hope that the noble Lord, Lord Taylor, will give a firm indication from the Front Bench that the organisations listed are free and open to provide their views. I will make it my business to contact some of the organisations, and if I find that they are not prepared to give views to the Official Opposition I will take that up with the Government, because I regard that almost as contempt for Parliament.
Lord Berkeley
My Lords, can I come in on the same issue? I have already been in contact with three organisations about which I have tabled amendments for later in Committee, to ask their views on being in Schedule 1, 2, 3 or whatever. Universally they have said to me, as they have to my noble friend, “We can give you our views, but for goodness’ sake don’t quote us, because that’s more than our life’s worth”. This is important, and I shall continue to ask in regard to my amendments. I share my noble friend’s view that, if we do not see a change before they are debated, it will be very serious.
Lord Greaves
My Lords, Her Majesty’s loyal and Official Opposition may be having trouble, but all Members of this House need to be able to get information. I go back to the point made by the noble Lord, Lord Clark of Windermere. This is partly about whether people can freely give their opinions, but far more fundamental is having access to information. We have to have it, and it would be quite wrong if we were denied it in relation to any of the organisations that are, or might be, included.
The noble Lord, Lord Hunt, has taken me up a branch line on my amendments. The noble Lord, Lord Berkeley, has just been talking, and I therefore automatically start thinking about railways.
Viscount Eccles
My Lords, I wish to make a brief comment on bodies not being brave enough to comment on what is in front of them. We have had some discussion of the Administrative Justice and Tribunals Council. If your Lordships look at its website, you will see a printed comment by the chairman stating that he is very disappointed in this development. He goes on to say why he is disappointed and how he is going to behave in the interim—although he accepts that policy is a matter for the Government. While I take the points being made in various parts of the Committee, I hope we do not overstate this situation.
I am wearing my Royal Botanic Gardens, Kew, tie, and I was happy to hear a comment from that organisation earlier this afternoon. There is a long way to go with the Bill. It is dangerous to say that the board of the Royal Botanic Gardens, Kew, will not answer a question. I suspect that it does not believe that it will be in Schedule 7 by the end of these debates.
Lord Newton of Braintree
My Lords, I am tempted, once again, by a reference to the Administrative Justice and Tribunals Council. I referred earlier to my historic interest in it. I take my noble friend’s point. I had been wondering whether to make the same point, but the Committee ought to be aware that the Administrative Justice and Tribunals Council is not in the same position as the organisations listed in Schedule 7—it is for the chop. Therefore, any uncertainty or question of avoiding the chop later does not arise. I personally think that serious issues still need to be considered in respect of the AJTC, as I indicated earlier, which will be the subject of a later amendment. However, to put it bluntly, as things stand, the AJTC has nothing to lose.
Baroness Andrews
My Lords, one of the concerns that is so blindingly obvious—and this refers as much to Kew as to any other body on Schedule 7—is that the bodies listed on the schedule have no idea why they are on it. One of the reasons for their diffidence is simply that there is nothing for them to say, other than to open an opportunity for the Government to explore further action which may not be necessary, appropriate or positive, or in any way in the interests of the organisation. That is the real problem and why people are so inhibited about coming forward in relation to the Bill.
Lord Taylor of Holbeach
My Lords, I speak to the Government’s amendments as well as the other amendments in this group. The amendments are all concerned with the mechanisms by which the Bill enables the Government to make changes to public bodies through secondary legislation.
The group includes Amendment 121, tabled by my noble friend Lord Lester and the noble Lord, Lord Pannick, and Amendments 3A and 123, tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Royall. In addition, it includes a number of government amendments and consequential amendments tabled by the noble Lord, Lord Greaves, to which he spoke with his usual eloquence. These amendments reflect the commitments that I made at the end of the Second Reading debate on 9 November with regard to consultation and parliamentary scrutiny.
In this debate, I will discuss in particular government Amendment 114, which relates to orders made under the powers in Clauses 1 to 6. Amendment 127 replicates this amendment in relation to orders made under Clause 11, and Amendment 169 has the same effect in relation to an order made under Clauses 17 or 18, to which the noble Lord, Lord Clark of Windermere, referred. We also intend to create similar provisions in relation to the powers conferred on Welsh Ministers by Clause 13, and we are in discussions with the Welsh Assembly Government about how best to achieve this.
I am extremely encouraged by the level of consensus that has emerged across the Committee. We are clearly more united than divided on what needs to be done to improve the Bill, and I hope to continue in that spirit through this debate. During Second Reading, the House clearly expressed its feeling that the types of change that the Bill would enable should be subject to a period of consultation with interested parties outside Parliament. In many cases, departments have already undertaken, or are undertaking, such consultation—including the Defra consultation on governance arrangements in English national park authorities and the Broads Authority. That consultation runs for 12 weeks, as of 9 November. Sometimes there is independent review, such as the Dunford review of the Children’s Commissioner. There are many such plans. However, in addition, we are happy to place in the Bill a requirement to consult.
Perhaps I may comment on the points made by the noble Lord, Lord Clark of Windermere. The forestry clauses relate only to England, so the issue of the devolved Administrations, Ministers or Parliaments does not arise. However, I guess that the reason why in many cases references are to Ministers rather than to Parliaments is that Ministers are in turn accountable to their Parliaments. This would be the normal way in which Ministers talk to Ministers, rather than Parliaments to Parliaments. I hope the noble Lord is reassured as regards the Forestry Commission.
Lord Clark of Windermere
On that specific point, the commissioners are appointed at a GB level. The Minister is quite right on that. However, once appointed, they then take over devolved responsibilities as chairs of the national committees of Wales, Scotland and England. Although the Bill applies only to England, I am a bit perplexed, because none of the commissioners is appointed specifically to look after England. There is a lot of work to be done in teasing out how we deal with this aspect.
Lord Taylor of Holbeach
I hope that when we come to those clauses of the Bill, we will be able to discuss this and make it clear. I am sure that that is what the Committee would wish. We will have an opportunity to go through this.
The question was raised about the timing of the consultation period. I reassure noble Lords that the 12-week period is a 12-week period of consultation. Amendment 118 covers the process after consultation and states:
“The Minister may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began”.
That means that he cannot present a summary of representations received in the consultation before the 12-week period is over. I hope that noble Lords are reassured on that point.
We want to make the consultation effective. I hope that I can reassure my noble friend Lord Greaves on that. The Government have nothing to fear from being open on the matter. The noble Lord, Lord Hunt, went rather over the top with his allegation of a climate of fear across government. I would be prepared to take up any evidence on this that he presented to me. The probable reason that a number of bodies listed in Schedule 7 are not commenting on the Bill is that it is not necessarily the case that anything is going to happen to them. Within departments, any decisions will involve discussions before the public consultation period takes place. The precipitousness that the Opposition ascribe to the decision-making process does not give credit to the way in which the Government perform their public business. I am sorry that the noble Lord has not had critical comments from people in public bodies.
Lord Hunt of Kings Heath
It is not that I have not had critical comments: I have not had any comments.
Baroness Andrews
If it is the case that nothing will happen to many or some of the bodies on the list, why are they on the list? Why is there a list at all?
Lord Taylor of Holbeach
That comes back to the process. Schedule 7 lists those bodies. The review initiated by my right honourable friend Francis Maude, which was the subject of a Statement in the House that I repeated, placed these public bodies on the list because they were considered to be subject to a review process. They have been subject to a review process and will continue to be subject to reviews at three-year intervals. The justification for them being on the list is that they are not exempted from being on it by the special criteria laid before the House.
Baroness Andrews
I am grateful to the noble Lord giving way. It is very important that we have clarification. The bodies that went through the public review process were cleared as being independent, expert and accountable, yet they are in Schedule 7. The Minister has referred to a triennial review. This can take place automatically; in fact, I understand that those bodies have been informed that there will be a triennial review. The bodies in the schedule are not necessarily subject to triennial review; they could be reviewed for any purpose whatever. There is a distinction here and we need clarification.
Lord Taylor of Holbeach
Of course, it is intended that departments will review the bodies that are listed in Schedule 7; that is perfectly correct. However, they will do so through a process of discussion with those bodies. The noble Baroness is involved in a body that appears in Schedule 7. I trust that she is sufficiently confident in her own position and that of her organisation not to feel in any way intimidated. Certainly she has been particularly eloquent—and justifiably so—in many of the things that she has said in debate in the House. What I was saying to the noble Lord, Lord Hunt, was that he had overreacted—which was uncharacteristic because he is a pretty phlegmatic fellow—by suggesting that there was widespread intimidation across Whitehall on account of the Bill. I do not believe that that is the case. I would go so far as to say that most people involved in public bodies want to co-operate with the Government in building a more accountable public sector.
Lord Hunt of Kings Heath
I am grateful to the noble Lord for giving way. I am also grateful for his suggestion that I am usually very calm. However, I have been concerned because I have made contact with a number of organisations, and while informally I can be told what their views are, they are clear that they do not want to make any formal representations. In the case of some departments, officials have made it clear that the department does not expect the organisation to make any public statement. I am concerned about that. I do not think I have gone over the top. It is very different from the normal process of legislation. We are all used to being inundated—sometimes it is overwhelming—by comments from stakeholders on pieces of legislation. The noble Lord has said that he will seek to investigate individual matters. If I can bring him cases, I will. However, the issue is that when organisations are concerned, they will simply clam up, and I am not in the business of fingering civil servants. That is not something that I would ever do. However, there is a clear view that departments have made it absolutely plain to the organisations listed that they are not to make representations. I express very great concern about that. The Minister may be prepared to reflect on it. It would be very helpful if it was known throughout Whitehall that these organisations were perfectly free to make their views known, and that there would be no recriminations if they did.
Lord Taylor of Holbeach
It is quite difficult for government bodies to speak out against government policy. The noble Lord has been in government. I suppose that he is suffering from the realisation that in opposition things are a bit different.
Lord Hunt of Kings Heath
With great respect, perhaps we may go back to the Marine and Coastal Access Bill. We spent six happy months debating it. In that time, representations were received from a considerable number of public bodies. I am not sure if the noble Lord is right to describe them as government bodies; we should call them public bodies. Yes, it irritated me enormously—how I wished for something like this Bill, because then I could have shut them up. However, I could not, it was right that I could not and it was right that those bodies expressed their views. This matter cannot simply be dismissed. This is a very serious matter of constitutional practice. There is clearly a feeling throughout the public Bills land that people are not able to express their views publicly. That is a matter of legitimate concern.
Lord Taylor of Holbeach
The noble Lord has expressed his point of view and I have given him the point of view from the Dispatch Box. It would be useful if he were able to provide instances that he feels show an abuse of government. I would be grateful to receive them.
Lord Greaves
I am grateful to the Minister for giving way. I previously backed up what the noble Lord, Lord Hunt, said, albeit in perhaps a slightly less dramatic way, but there is certainly some reluctance there. Is the Minister saying that if we meet that reluctance in the coming weeks, when inevitably we will want to get factual information out of organisations, we can say to people, “The Minister in the Lords, Lord Taylor of Holbeach, says that it’s okay for you to talk to us”? Can we use the Minister’s name in that way?
Lord Taylor of Holbeach
Heavens above, my Lords, I do not think that I can really be such a door-opener. What might we find? I say to all noble Lords that we have access to public bodies. Whether we are on the Front or the Back Benches in this House, we are capable of tabling Questions and we can find out facts. It is quite proper to do so if things are in the public domain. The Library is there to help us and, if we seek opinions, no doubt we all have contacts that we are able to use. I do not want this debate on the Bill to be stifled by ignorance but here we are talking about the consultation process that we are seeking to bring in through the Bill, once enacted.
Lord Liddle
One welcomes the steps that the Government are taking in the Bill to ensure that there is wider consultation, and the noble Lord’s Amendment 114 refers to the consultation that is necessary for the bodies listed in Schedules 1 to 6. Of course one welcomes this consultation, but with regard to the area with which I am particularly concerned—that of economic development—what sort of consultation will now occur on the Government’s policy of abolishing the regional development agencies, which are referred to in Schedule 1 to the Bill? To my knowledge, there was no consultation of any kind on that policy—indeed, rather the reverse.
Soon after the general election, we were told that the Secretary of State for Business, Innovation and Skills thought that the regional development agencies should be saved, and there was a tremendous sense of relief about that in the regions, particularly in the north. Indeed, I am told that the Secretary of State said that to the chairman and chief executive of one of the leading regional development agencies in the north. Then, a few weeks later, it was suddenly announced in the Budget that these bodies were to be abolished. A few days later, a joint paper appeared in the names of the Secretary of State for Business, Innovation and Skills and the Secretary of State for Communities and Local Government saying that the Government had decided to abolish them altogether and were now going to set up local economic partnerships. However, what consultation has occurred, and how is consultation now to take place in the light of the proposed new clause in Amendment 114 that the Minister intends to introduce? I should be very interested to hear his reply.
Lord Taylor of Holbeach
We are in effect debating all these bodies, as the noble Lord knows, and when we come to Schedule 1 there are amendments tabled—indeed, there is one in the name of the noble Lord, Lord Liddle—relating to the north-west, if I remember rightly. I notice that the Opposition have populated these amendments with suitable spokesmen for the regions. We will be debating that. Indeed, noble Lords should not forget that we will be debating it in the course of a piece of primary legislation. The political decision has in fact been made on the RDAs. Parliament has to agree to it but the political decision has been made. We are now talking about the process that will apply to future decisions.
Lord Liddle
I am sorry but that is not what the noble Lord’s Amendment 114 says. He is talking about a consultation process that applies to all the bodies listed in Schedules 1 to 6. Of course, I hope that during the course of our debates the regional development agencies—particularly those in the north of England—will be removed from Schedule 1, but there will still be no process of wider consultation, and we are going to be taking this decision with none of the normal consultation processes that one would expect when such a matter is before us. Therefore, I am still a bit mystified.
Lord Taylor of Holbeach
I have been passed a very helpful brief by my noble friend the Minister with responsibility for these matters, who happens, by chance, to be here at my side. She reminds me that the decision to close RDAs was in the coalition agreement; proposals for local enterprise partnerships to replace the RDAs were invited in June 2010 and a White Paper on sub-national growth—in other words, growth at a regional or local level—was published in October this year. Therefore, so far as concerns White Paper consultations, we are indeed in a period of consultation at this moment, and I suggest that the noble Lord gets about consulting it. Perhaps I can return to my comments on—
Lord Clark of Windermere
Perhaps I may try to clarify the position—and for once I am not talking about forestry or the Forestry Commission. The assertion was made by my noble friend Lord Hunt that certain public bodies—I emphasise “public bodies”, not government departments—have felt inhibited about expressing their views on this Bill. Is the Minister saying that if public bodies wish to make observations about the Bill, the Government are quite happy for them so to do?
Lord Taylor of Holbeach
I am not in a position to say that because I do not believe that that is what public bodies exist to do. They do not have a brief to comment on government legislation. However, they do have a brief to comment on anything that might affect them in particular, and that is why they are perfectly entitled to be involved in a consultation process on matters that may affect them during enactment of the Bill and during the presentation of a statutory instrument to change their position within the schedules, which is what the consultative process identified in Amendment 114 is all about. I should like to be able to talk more about that. The government amendment—
Baroness O'Loan
My Lords, I am still having some difficulty in understanding the Government’s position and in knowing exactly to which policy the noble Lord is referring in this context. We all know from long experience that there are many ways of influencing public bodies, and one of them, notwithstanding this legislation, is to make budgetary decisions that impact adversely on them. The comprehensive spending review has led many bodies to anticipate budgetary changes which may well be adverse for them. In those circumstances, and given the determination of this House to ensure effective and proper consultation at every stage of legislation, would it not be helpful, speaking as a fundamentalist, if the noble Lord were to declare that public bodies do have the right to comment on matters affecting them and that inclusion in any schedule is a matter that affects a public body and may well impact on the discharge of its statutory functions?
Lord Taylor of Holbeach
I am sorry but I am not prepared to concede that. I think that it would take public bodies into the role of advocacy and campaigning, which is not really their function. It is up to Governments to make decisions about these matters, followed by a process of consultation, and to make quite clear that all public bodies are affected.
Lord Whitty
I declare an interest as the chair of Consumer Focus for a few more days. Does the noble Lord not realise that some bodies on the list were established in order to give their opinion to government and more widely, and that their future, or the future of the role that they currently undertake, is therefore of vital importance to government? What the Minister seems to be saying is pretty appalling stuff: that the injunction on public bodies not to commentate extends not just to them talking to newspapers or lobbying Members of Parliament but even to talking to Ministers and responding to public consultation about their own future. That seems to me to be pretty draconian. If that is the Government’s position, frankly, it is shocking.
Lord Taylor of Holbeach
I think the noble Lord has got it totally wrong. I made it quite clear that any discussions concerning public bodies are a matter of consultation within departments and between departments and those public bodies. There is no question of inhibiting bodies in performing their proper function in relation to government, giving the advice which, by statute or by request, they are required to give to government. We shall be working closely with all public bodies in respect of these reforms. They affect people and their livelihoods and it has been beneficial for the Government to work with organisations. It is not the job of public bodies to lobby in relation to government policy.
Lord Whitty
My Lords, if that is where the line is, we understand it. Public bodies were set up primarily to administer policies which have been established by Parliament. Therefore, I still think that their inability to comment on policies pursued by government and others, or to inform Members of this House or another place of their opinion of the Government’s approach in this Bill, is a very severe inhibition of democracy. I think that is what the noble Lord is now saying. I understand that they can talk to their own departments and that they can respond in those areas, but if they cannot even inform Members of Parliament of their views, I think that is a restriction on the ability of Parliament to make a judgment.
Viscount Eccles
My Lords, it would help me if the noble Lord, Lord Whitty, would tell the House how he could be prevented from making his opinions known if he wished to make them known to anyone?
Lord Whitty
My Lords, as a Member of this House, I can say what I like. As an officer of one of the bodies covered by the Bill, the injunction is that I shall not inform or campaign, or lobby Members of Parliament about a view which that organisation has and, in this context, a view which it has over its own future. I think that is a pretty severe restriction and it is something to which this House may wish to return. I do not want to pursue it further, but I put down a marker now that this seems to be quite an interference of the normal process of parliamentary government.
Viscount Eccles
My Lords, perhaps I may have one more go at this. The noble Lord, Lord Whitty, and I have held positions in public bodies in our careers. If someone sent me that injunction, I would pay no attention to it.
Lord Clark of Windermere
My Lords, perhaps I can give example of the Information Commissioner listed in Schedule 7. One of his specific tasks is to adjudicate on the actions of government in withholding or providing information. Therefore, he is independent. Is the Minister saying that if a Member of this House made an inquiry of the Office of the Information Commissioner or any other public body it would not be right for the Information Commissioner or the other body not to provide the factual information to Members of this House?
Lord Taylor of Holbeach
I am not saying that at all. I do not suppose that any Member of this House will be able to say that they have had difficulty in getting that sort of factual information from public bodies or from government departments because that is a prerequisite of parliamentary responsibility, and I accept that. I think I should have made it quite clear that we recognise that it is beneficial for government to work with organisations and public bodies but it is not the job of public bodies to lobby in relation to government policy. I think that is a fair position to state and I think that is where the Government stand on this matter. If noble Lords disagree with it, fine, but that is the position that the Government take at the moment.
Government Amendment 114 echoes many of the proposals of my noble friend Lord Lester and the noble Lord, Lord Pannick, and of the Opposition Front Bench, but we believe that it goes further in some regards: for example, by stipulating a requirement for a 12-week consultation period, and by requiring Ministers to consult the Lord Chief Justice where a proposal relates to the administration of justice. I am pleased to note that paragraph 2 of yesterday’s report of the Delegated Powers Committee has welcomed this amendment.
I note the emphasis of my noble friend Lord Lester on the role of the public in any consultation process. In the same spirit, I note my noble friend Lord Greaves’s amendments to the government amendments on consultation, which would require that the Government publish a notice of the proposal to make an order under the Bill on the Government’s website and other places considered appropriate by a Minister, and to publish a summary of responses and the Minister’s response to them in a similar fashion.
I fully appreciate that in some circumstances, a public, properly publicised consultation in accordance with the Government’s existing code of practice will be appropriate. However, I also believe that there is a need for some flexibility here; it is important that the Government should be able to carry out proportionate, value-for-money consultations that minimise the burden on those consulted as well as on the Government. Indeed, such a consideration forms criterion 5 of the current code of practice on consultation, which was produced under the previous Administration.
Therefore, although I agree with the intent behind these amendments, in appropriate cases, I do not believe that they should be placed on the face of the Bill. The requirements in our proposed amendments mirror those in other legislation and do not preclude a public consultation in accordance with the Government’s code, if appropriate. It should be for Ministers to decide how to consult and for Parliament to hold them to account in this regard.
I hope, therefore, that noble Lords across the House will feel able to support government Amendments 114, 127 and 169, which create a parallel procedure for the other order-making powers in the Bill. I hope that, in the light of my comments, the noble Lord will feel able to withdraw his amendment and to support the Government’s proposals when they come forward.
Lord Hunt of Kings Heath
My Lords, I thank the noble Lord, Lord Taylor, for his extensive response to the points raised in the debate. On the general point, I think the question still arises as to whether it would give comfort if the words “public consultation” appeared in the Bill. I believe, and I would pray in aid the noble Lords, Lord Greaves and Lord Maclennan, that it would give reassurance if we could see in the Bill when it eventually leaves your Lordships' House some reference to public consultation. I am sure that we shall return to this on Report. I certainly acknowledge that the government amendments move us into a better situation. I am also very grateful to him for the point he raised in response to my noble friend Lady Andrews about the 12-week period, which encompasses the actual consultation with outside bodies and organisations. That is very reassuring.
On what public bodies can and cannot do, clearly I shall not be able to bring to him any evidence that officials have acted improperly because it is quite clear that what officials have been doing in departments is simply enunciating the policy that the Minister has laid down tonight which is, very simply, that public bodies should not comment on public legislation. I am gobsmacked because, frequently in debate, noble Lords opposite, when in Opposition, commented and quoted public bodies which have commented on legislation. Looking at the list, I can pick out organisations with which I have had some dealings: the Committee on Climate Change is not able to comment or the Environment Agency, or Ofgem, or the Health and Safety Executive or Natural England. Goodness me, how I wish Natural England—
Lord Taylor of Holbeach
Natural England has been very keen to comment at certain stages of the legislation and the noble Lord is quite right to single it out. What I said was “comment on legislation”; I did not say that they were not in a position to comment on those areas of their responsibility. Of course, Governments set these bodies up with the idea of seeking their advice on these matters, but Governments have to have the responsibility for bringing legislation before the House and it is for Parliament to advise the Government through its procedures on what it thinks of the Government’s legislation.
Lord Hunt of Kings Heath
My Lords, in my remarks I very advisedly quoted public legislation. I think it is a very rum do indeed that the organisations listed are clearly not being permitted to comment on this legislation. This raises huge matters of concern. In fact, looking at noble Lords, it adds to the concern that we feel about this legislation. Clearly, we will return. I am grateful to the Minister for the amendments that he will move. I beg leave to withdraw the amendment.
Baroness Rawlings
My Lords, I think this might be the moment for the Committee to break. I beg to move that the House be now resumed and that Committee stage begin again not before 8.45 pm.
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Earl Howe
My Lords, the purpose of the draft Medical Profession (Responsible Officers) Regulations 2010 is to protect patients and to support doctors to improve the quality of care they give. They require certain designated organisations in England, Wales and Scotland to nominate or appoint responsible officers and to support those responsible officers in carrying out their statutory functions. They give responsible officers statutory functions relating to the evaluation of a doctor’s fitness to practise. In England only, responsible officers will be given additional functions relating to monitoring the conduct and performance of doctors. The regulations set out the connections between doctors and the designated organisation relevant for them.
Under the regulations, responsible officers will have to be licensed medical practitioners with at least five years’ experience. However, this is a statutory minimum. In practice, organisations will want to appoint senior doctors with experience of the management of other doctors as their responsible officers. The responsibilities of responsible officers relating to the evaluation of fitness to practise include ensuring that the designated body carries out regular appraisals, establishing and implementing procedures to investigate concerns and, where appropriate, referring the doctor to the General Medical Council.
Under their duties to evaluate fitness to practise, responsible officers will make recommendations on individual doctors to the General Medical Council. The responsible officer will have to make a recommendation as the basis for revalidation when it is introduced. This will normally be every five years. In England, their additional responsibilities will include identifying any issues arising from information about conduct and performance and ensuring that the designated body takes steps to address any such issues. These functions will enable responsible officers to support doctors to improve the care they give at the earliest opportunity.
Most of the statutory functions are activities already undertaken by medical directors and staff. These regulations do not specify who will take on the role of responsible officer; rather they allow organisations to determine how the functions may best be carried out. In the NHS and independent providers, it is likely to be existing medical directors. Except perhaps in the smallest organisations, we would not expect responsible officers to undertake the tasks, such as appraisals and investigations, personally, but they will be responsible for ensuring that they are carried out appropriately. This will involve ensuring that their designated body has sufficient staff who are appropriately trained, whether in undertaking appraisals or in investigating concerns. The regulations also make provision for the appointment of an additional responsible officer where there is a conflict of interest or appearance of bias between a doctor and the responsible officer.
The Merits of Statutory Instruments Committee has drawn these regulations to the attention of the House and I have no doubt that in the light of the Motion she has tabled, the noble Baroness, Lady Thornton, will wish to raise certain issues and concerns. I stand ready to address them, but in the mean time, I beg to move.
Amendment to the Motion
Baroness Thornton
As an amendment to the above Motion, at end to insert “but this House regrets that the draft regulations may imperfectly achieve the policy objective of the introduction of a revalidation scheme in light of the Government’s proposed changes to the NHS administrative structure which will affect the operation of the revalidation scheme in general, and these regulations in particular”.
Baroness Thornton
My Lords, as the Minister quite rightly suspects, it was a combination of the report of the Merits of Statutory Instruments Committee on 7 October and my concerns that some aspects of the statutory instrument as drafted need further explanation that caused me to put down this amendment to the Motion this evening. I think it is important to say from the outset that as one of the Ministers who guided the Health and Social Care Act 2008 through your Lordships' House with my noble friend Lord Darzi, I am very pleased that this Government are showing determination to push ahead with this agenda because at the heart of this legislation are patient safety and ensuring that all clinical professionals deliver high quality, effective and safe care to their patients.
I fully appreciate that responsible officers are integral to improving care, and the development of their role seeks to raise the already high standards of the overwhelming majority of professionals, but their job is to identify and swiftly deal with the small number of staff who are not able to meet those standards. The public, professionals and the NHS have a right to be assured that licensed doctors are fit to practice.
I have absolutely no desire to delay the important matter of implementing this legislation. However, I think that it is important that the secondary legislation does the job that the original legislation intended. The report by the Merits Committee raises some important questions in this regard, as do some of the important bodies whose membership will, as it were, be on the receiving end of the instruments.
I think that the regulations do a very good job of describing the duties of the responsible officer and, indeed, the connection between responsible officers and designated bodies and medical practitioners, and this leads me to my first set of questions. Part 1 of the schedule contains a list of designated bodies that includes at least two organisations that the Government intend to abolish: strategic health authorities and primary care trusts. I join the Merits Committee in its recommendation that the House seeks clarification on how the Government's proposed changes to the NHS structure will affect the revalidation scheme in general and these regulations in particular.
Since the 2008 Act, the UK Revalidation Programme Board—hosted by the GMC, which I thank for its briefing and comment on this matter—has been rolling out the reform in phased stages, including a number of pilot exercises which aim to produce a well informed and robust system. Can the Minister tell the House how the changes that have been proposed will affect the pilots and their results? For example, the published guidance says that the responsible officers themselves will be assessed by the responsible officer in the strategic health authority, so what will happen now? How will the Government overcome this problem? I anticipate that we can expect some further orders and, if so, when and will they too be piloted? If nothing exists in the structure of the newly reformed NHS between groups of commissioning doctors at local level and the NHS Board at national level who or what will perform this function?
At the time of the original legislation, we had considerable discussion about the GMC and its role in this matter and about not conflating its particular and important role as the independent regulator for doctors in the UK or, indeed, creating conflicts of interest. At the moment, it seems to me that the only body that would appear to have a structure between the very local GP consortia and the national board is the GMC. What is the Minister’s view of this? How will revalidation work under those circumstances?
I thank the Minister for forwarding to me the letter that his honourable colleague Anne Milton sent to members of the Delegated Legislation Committee in another place. In this letter, she addressed the changes of architecture to the NHS. However, I am afraid that I did not find her explanation very comforting. She says:
“The Government’s proposed changes to the structure of the NHS set out in the White Paper ‘Equity and Excellence: Liberating the NHS’, in particular the abolition of PCTs and SHAs, will not affect the majority of organisations designated under Regulations, including NHS and independent hospitals. These organisations need to start putting the systems in place that support doctors, and provide the information that demonstrates the quality of care they provide. Without this, there is a danger that doctors will be inadequately supported for the introduction of medical revalidation in 2012. I believe that the medical leadership and stability provided by having responsible officers in place will also be important during this period of change”.
Well, quite: the two bodies that can provide that leadership are being abolished.
I turn now to concerns that have been expressed by professional organisations, which particularly led the Merits Committee to say that,
“these regulations are drawn to the special attention of the House on the grounds that they imperfectly achieve the policy objective”.
When I was a Minister, I would have regarded that as the parliamentary equivalent of being put on the naughty step and given a detention at the same time. I think that the Minister needs to give some thought to this matter and to put his responses on the record.
The British Medical Association has said that the laying of the order is “premature”. Although I am not one for delaying these matters, the Minister needs to address its concerns. The Royal College of Surgeons has expressed disappointment that many of its concerns were not addressed in the regulation. It raised the issue of potential conflicts of interest to arise from the installation of responsible officers with simultaneous corporate board responsibilities—for example, medical directors.
The RCS seems to think that such officers might be torn between trust obligations and the professional role of the responsible officer. I am sure that the Minister will be familiar with the examples that these organisations have raised. How do the Government intend to avoid the revalidation recommendations becoming the tools of managers and trust management agendas, rather than matters relating to the compliance of GMC and Royal College standards? Will the Minister confirm that it is the responsible officer’s responsibility to examine the doctor’s clinical ability and professional conduct, not his contribution to the meeting of trust budgets or targets? On this matter the regulations appear to be silent. Perhaps the Minister will expand. The RCS has expressed particular concern about the failure to incorporate whole practice appraisal in these provisions. I think that the Minister needs to give the House an explanation and reassurance about the need for the comprehensive protection to which patients are entitled.
On indemnity, will the Minister confirm how the Government will approach the issue of the potential increase in contributions for medical directors who take on the role of the responsible officer?
Finally, the GMC has expressed concern about appeals and that there is a significant omission of local appeals systems. The GMC fitness to practise processes should not be both the first and the last resort for appeal. There should be a viable appeals structure that flows up to fitness to practise. The British Medical Association says that in some organisations progress has been slow in demonstrating the capability to pull together the necessary data to actualise the new system. It says that appraisal has been patchy and disjointed in many organisations, and that that is quite aside from getting around to supporting any appeals system that may arise. I have raised several issues and I suspect that other noble Lords will seek clarification on the various other issues. I look forward to the Minister’s response.
Baroness Finlay of Llandaff
My Lords, we all know the sad history of this, through Shipman, which has led us to where we are today. I do not want to block these reforms because they will improve medicine for patients and for clinicians. But there are some questions which need to be sorted out urgently. One question is the role of the responsible officer in relation to doctors in primary care, particularly with the reorganisation.
In his opening remarks, the Minister spoke about trusts, but I would suggest that hospital practice is very much the easy end of it. The difficulty is where will doctors in primary care sit? How will the responsible officer work in relation to them? Where will academics sit and who will be the responsible officer, because there is sometimes a conflict, as has been pointed out, between academic priorities and the clinical priorities of a trust where that doctor may have an honorary contract? Even more, what about locums? What about the doctors who are constantly moving around? How will they be captured in the system? How will they be adequately and appropriately revalidated? Even with what used to be called 360 degree appraisal—that is, getting opinions from a lot of people—with locums there is a real danger that they will only spot their friends to fill out the forms because they may have had lots of contacts. Those concerns may never be sufficiently in the system to be raised before such a doctor moves on.
There is also a difficulty for those who raise problems. It may be that the doctor who is seen as the sand in the shoe of the trust, the difficult person, is raising real concerns about the way in which management is conducted, which is impeding good patient care. We know that one of the biggest problems is attitude. Often, the biggest problem encountered is not about the ins and outs of technique, because you can retrain on that quite quickly, but is about someone’s attitude. Someone who is whistleblowing, someone who works in the same organisation—I hate to use the term “whistleblowing”, because it is a sad reflection of the NHS as it is today that that term is around—and raises concerns should not in any way potentially be penalised for doing so. We would just go backwards and not forwards if that is the case.
Given that the majority of doctors are doing a really good job and are very flexible and going through changes, the system that comes in must not be too onerous. It must not be just a tick-box exercise. It has to be subtle enough to pick up real issues around performance and attitude. It has to pick up qualitative feedback, so that a bad attitude is detected, including a bad attitude towards patients.
As regards the responsible officer, I am afraid to say that I am sufficiently old-fashioned to think that I would prefer the minimum time after qualification to be a bit longer. It is not until someone has been practising for about 15 years that they really have accrued enough wisdom to be able to take on what will be a very onerous and potentially important role in relation to their colleagues. We need them to have a degree of wisdom. The appeals system is absolutely crucial if this is to work well and fairly. I hope that the Minister will give us a full reply in his response.
We also must be clear that the system will not pick up another Shipman. This is a clinical system and not a criminal justice system, so no one should be fooled into thinking that it will. Dame Janet Smith pointed out two things. First, the most important information about patient safety is doctors watching other doctors. They have to be able to raise concerns easily. Secondly, a good clinical governance system is a system in which questions can be raised at an earlier stage and more readily. So it is the whole system of the NHS with good clinical governance that will make this work. I hope no one thinks that just having responsible officers putting in appraisals will do the job because that will be a wallpapering exercise.
However, my main concern relates to primary care and to financial conflicts. In a privately managed organisation there may well be a conflict between what is actually in the patient’s best interest and what is being put forward as the protocol in that managed care programme. It may well be that the doctor is working in the patient’s best interests, but not in those of the organisation. Again, there has to be a degree of neutrality among the responsible officers. I hope that the Minister will be able to give replies to all these concerns, and like other noble Lords, I look forward to his response.
Lord Walton of Detchant
My Lords, I declare an interest as having been president of the General Medical Council from 1982 to 1989. I know that the GMC is particularly anxious to see these regulations go ahead because the whole question has been smouldering away for very many years. Even during my presidency, we were aware that many doctors who came before the conduct committee of the council, or before that the disciplinary committee, were not so much erring or wicked as actually not practising, in some respects, to a standard of competency appropriate to today’s world. For that reason, we tried very hard to set up a mechanism within the GMC to establish what we called at first a competence committee. However, it was not successful because we could not persuade the profession and other bodies to approve some of the recommendations that we tried to put forward.
Subsequently, the GMC embarked on a programme of performance review. Mechanisms were established to identify doctors who were not performing to an adequate standard in the health service and other bodies, but that programme too did not succeed as well as it might. It was perfectly clear that it was crucial to the interests of the public at large and of patients themselves that there was a mechanism whereby doctors would be required every five years to subject their clinical performance and performance in their appointment to a process of validation. Revalidation then became one of the essential priorities for the General Medical Council. As the noble Earl said in his introduction, the GMC believes that implementing this process of revalidation is an essential step in advancing the quality of medical regulation, improving patient safety and providing patients with greater assurance that doctors are meeting the standards that we set for the medical profession.
I appreciate to the full some of the anxieties expressed by the noble Baroness. She has criticised the nature and content of these regulations. However, as I have said, this mechanism has been smouldering away for over 20 years and it is time to make progress. The statutory basis for the responsible officer is set out in the Health and Social Care Act 2008, which amends the Medical Act 1983. The GMC is now committed to the introduction of revalidation for doctors in order to change the way in which all doctors in the UK are regulated. Under this process, to retain their licence to practise, doctors need to demonstrate to the GMC every five years that they still meet the appropriate professional standards and are continuing to develop their skills and knowledge.
The responsible officer will be the link between the local healthcare organisation, whatever it is, and the GMC, and as such will be an essential component of implementing revalidation. The responsible officer will usually be based in and employed by the organisation for which the doctor works, or with which the doctor is contracted to provide services. The GMC will need to be confident that the recommendations it receives are robust, fair and consistent, but that the process leading to the recommendations and the recommendations themselves will be subject to quality assurance and to audit. The GMC will develop guidance to assist responsible officers in carrying out their role in relation to revalidation.
We have reached a stage at which it is crucial that responsible officers are in place before the rollout of full revalidation commences. This will have the advantage of enabling the GMC to identify gaps in the coverage of responsible officers, particularly of doctors working outside the National Health Service, and to make provision for them. In its response to the government White Paper, Equity and Excellence: Liberating the NHS, the GMC comments that the abolition of PCTs and strategic health authorities, which is not expected until 2013, leaves it unclear as to where the responsible officer role in primary care and sometimes in specialist care will sit, and how the role and functions of the medical directors will be exercised. As the noble Baroness said, this matter needs to be resolved, but it must not be a reason to delay the passage of these long-awaited regulations or to stall preparations more generally. The GMC has confirmed that it will work with the Department of Health to resolve this and other issues so that it can continue to make progress towards the implementation of revalidation. I trust that the regulations will be approved.
Lord Patel
My Lords, I concur with the comments of my noble friend Lord Walton of Detchant. It is important that we allow these regulations to pass. As he has said, the issue of revalidation has been smouldering away, to use his words, for many years. I recall from when I served on the GMC over eight years ago that the revalidation issue predates Shipman and has nothing to do with that issue. As my noble friend has said, this is a process and it is important that the regulations should be passed because we need the responsible officers to be appointed pretty soon so that the GMC can train them up and identify any issues before the process of revalidation begins. I understand that all the devolved Administrations have agreed that it should start by autumn 2012. If that deadline is to be met, we need the responsible officers long before that.
My conversations with officers of the GMC suggest that the council is well aware of the concerns raised. They know that when the legislation to reform the NHS is brought forward, the issue of what happens in primary care with doctors working as commissioners, and how they are to be revalidated, will have to be addressed. They are confident that they will be able to do so.
As for the other professional organisations that have also commented and to which the noble Baroness referred, it is interesting that only one has raised concerns; the others have not. All the other royal colleges have been involved in working with the GMC to identify how revalidation will be carried out in their own specialties and they are satisfied with the mechanisms that will be used. They are also satisfied that the pilots that are now being carried out will identify the issues.
It is important that we now approve these regulations and allow the responsible officers to be appointed. We will have other opportunities to debate the matter again during the next stages.
Lord Alderdice
My Lords, it is always difficult when new Governments come into place and want to make important and sometimes radical changes to structures and arrangements while, at the same time, valuing some of the work that had been begun but not completed by a previous Government. As other noble Lords have said, the previous Government, and perhaps even an earlier one, moved towards revalidating doctors. This is a very complicated and difficult issue, but the Government moved in that direction; timetables were set but became a little delayed. However, if the Secretary of State in this new Government were to take the advice that has been proffered—that until PCTs and strategic health authorities are set aside and the new arrangements are in place we should not move to the appointment of responsible officers—we would be looking at 2014 or 2015, or after the next general election, before we could move forward. It is understandable that people should quite reasonably say that there is a dilemma here, but we must try to keep up the momentum, which is the point that the GMC has made.
It is perfectly correct that a number of matters are not yet clear and resolved. Some affect me, and I shall advert to them in a moment. The proposals for the reform of the NHS have not worked through the process—they have been announced but are not yet through Parliament—and it is not only possible but almost certain that there will be significant changes and developments. I hope my noble friend will be able to clarify some of the issues, but it would be expecting rather a lot for him not only to clarify how matters stand at the moment but to predict how they might stand further down the line when some things may have changed.
In the present situation, in most cases but not all, appraisal processes are already going on. Up until earlier this year, every year I produced a huge lever arch file containing details of all the things that I had been through. So the process is already in place and it is the responsibility of medical directors in trusts to make sure that it is in place. However, they cannot possibly carry it through themselves because so many need to be appraised. They therefore have to devolve the responsibility for the detail and the face-to-face work to someone else. Exactly the same thing will happen to the responsible officer.
Are there potential conflicts of interests? There already are because those who are responsible for the appraisals are also responsible for clinical merit awards of various kinds, for the recognition of a person’s work and for the creation or demolition of their clinics. All these conflicts are already there. That is not to set them aside and say they are unimportant—they are very important and very difficult—but we are facing something that is not in itself radically new but a problem with which we have been struggling for quite some time. Further orders may well come subsequent to this that will help to take the matter forward, but that does not mean that we should delay the current regulations.
Let me put to my noble friend a dilemma of my own on which he may or may not be able to help. What will happen to those who do not necessarily operate all the time only in the NHS in England, Scotland and Wales? I note that Northern Ireland is not included in this and, of course, the movement backward and forward between this part of the world and the Republic of Ireland is substantial. What happens if a doctor qualifies and works here for a while, then goes to work for three or four years in the Republic of Ireland and then comes back to work in the United Kingdom but the process of validation has not operated in quite the same way? Of course, we have free movement not only in these islands but throughout the European Union. What happens to those who have operated outside the UK? These are real dilemmas that have to be dealt with.
We have often heard it said that it is better to start, pilot and work your way through than to produce something that has not been tested out but is a fiat—a fait accompli. My noble colleagues on the Cross-Benches have expressed reasonable concerns and a determination to keep up the momentum for revalidation. In supporting these regulations, that is also very much my mindset, and I hope to see further developments over the next year or two.
Lord Rea
My Lords, I simply report that the two professional organisations to which I belong, the Royal College of General Practitioners and the BMA, basically support the regulations. That is in spite of some doubts about the timing and some of the other points that noble Lords have raised today. It is good that responsible officers will be appointed before the detailed work of setting up the revalidation process is completed. They will play an important formative role before later acting as scrutineers or umpires—I hope not inquisitors—in the revalidation process. I shall be interested to hear the Minister’s response to the cogent questions that my noble friend and almost all other noble Lords have raised.
Lord Kakkar
My Lords, we have heard that the key priority of the General Medical Council for patient safety and ensuring continuing standards and confidence of the public in regulation is the process of revalidation. We have heard in the Chamber today very strong support for the regulations.
The early appointment of responsible officers is critical. It will ensure that the system can be tested. The noble Baroness, Lady Thornton, was absolutely right to raise the structure in which responsible officers in the area of primary care will eventually be able to operate, but this matter can be dealt with when the health Bill is laid before Parliament and the primary care structures in it can be appropriately scrutinised.
As we have heard, if the regulations are in any way derailed at this stage, there is a danger that the whole momentum of revalidation will be disrupted. It could cause anxiety in the profession and lead to unhelpful pockets of resistance. There is now an ideal opportunity for a mechanism and the early appointment of responsible officers to test potential systems and determine where the weaknesses are. This will occur before revalidation comes into force in its fullest form, and will therefore allow the General Medical Council to respond appropriately. I add my voice to those of many noble Lords in supporting the regulations.
Lord Colwyn
My Lords, although the principles behind revalidation, which aims to raise confidence in clinical standards, are welcomed, there are concerns over the ways in which the Department of Health plans to implement the process through the responsible officer regulations. There is also concern about the new regulations coming into force in January 2011, given the proposals in the recent health White Paper to abolish structures that were intended to support the role.
I agree with the noble Baroness, Lady Finlay, that the demands of the role outlined in the proposals will require a person of quite exceptional skills and competences. It is assumed that many medical directors will become responsible officers, which will significantly extend their role by extending their responsibility, powers and workload.
There is already a marked variation in the abilities of medical directors to investigate performance concerns and implement local disciplinary procedures. The additional duties are likely to be onerous. It is not certain that senior doctors with the necessary professional standing will be willing to take them on, or that it will be possible to find senior doctors with the necessary standing and experience to succeed in this role.
It is essential that adequate resource is allocated to support responsible officers and that they are appropriately equipped to carry out their responsibilities. The guidance to the draft regulations emphasises that there must be a “robust” medical management infrastructure to support the responsible officer and sufficient delegation of duties to enable the role to be delivered to a high standard. How will this work in practice and how will it be resourced?
The draft regulations do not reflect the changes proposed in the White Paper. Reference is made throughout to “designated bodies”. These include PCTs and SHAs, which are to be abolished by 2013. There is no detail on what structures will support responsible officers, revalidation and other aspects of performance management in primary care after 2013. This makes the decision to press ahead and appoint 975 responsible officers to strengthen systems in structures that are to be abolished difficult to understand. Surely, given the decision to delay revalidation and the uncertainty around the structures that will support performance management, more time is needed to pilot and evaluate the responsible officer system effectively before bringing these measures into force in January.
Earl Howe
My Lords, I thank all noble Lords who have spoken. In particular, I welcome the positive comments made about the regulations and the rationale for them. I am grateful especially to the noble Lords, Lord Walton, Lord Patel and Lord Kakkar, and my noble friend Lord Alderdice for their strong support and very helpful comments, and indeed to the noble Lord, Lord Rea, for what he said. A number of questions have been asked and perhaps I could begin by addressing the timing of these regulations.
First, I know that medical revalidation was a concern of the Merits Committee, reflecting in turn the concerns raised by the BMA and the Royal College of Surgeons. Noble Lords who are medically qualified will be aware, and other noble Lords may well be aware, that the piloting period for revalidation has been extended for a further year. This will allow time for a better understanding of the costs, benefits and practicalities of implementation and to enable full engagement with the profession, the service and the public. Despite there being issues which the extended period of piloting will help us address, one thing remains clear; recommendations on an individual’s revalidation can be based only on substantiated information. That information will come from doctors themselves, supplemented by information from an organisation’s clinical governance systems. The responsible officers’ roles, in other words, are wider than the process of revalidation. It is important that we have those officers in place to implement improved systems of clinical governance and to ensure that organisations are prepared and doctors are supported, ready for revalidation.
The noble Lord, Lord Rea, was right; having responsible officers in place would help to ensure that doctors are appraised and that systems are in place that will enable the information to be collected and shared as appropriate, such as when doctors move to a new organisation. Where there are concerns, their duties will ensure that the appropriate action is taken, and will continue to be taken, so that patients are protected. The noble Baroness, Lady Thornton, also argued that the regulations had been overtaken by the Government’s proposed reforms of the NHS. It is worth re-emphasising what my honourable friend Anne Milton said in her letter: that the majority of organisations designated under the regulations will not be directly affected by the removal of primary care trusts and strategic health authorities, which of course has not yet happened and is still some distance away. Clinical governance systems are needed regardless of the White Paper proposals.
Now is precisely the right time to introduce the role of responsible officer. I simply repeat that medical leadership and stability are needed if organisations and their doctors are going to be ready for revalidation when it starts.
Of course the regulations will in due course need to reflect the changes in NHS architecture, should those be agreed by Parliament. We are currently exploring options for this and I can repeat the assurances given by my honourable friend Anne Milton in another place. To answer in particular the concern of the noble Baroness, Lady Finlay, about primary care, we will consult on options for responsible officers within primary care as we move to a system of commissioning consortia, and on identifying a responsible officer’s own responsible officer, who in England currently sits within the strategic health authority, as the noble Baroness, Lady Thornton, rightly pointed out.
The noble Baroness also reflected professional concerns about conflicts of interest between a responsible officer’s statutory duties and their duty to their organisation. All doctors who have a management or supervisory role for other doctors already manage on a day-to-day basis any tensions that may arise between the need to ensure high professional standards and values on the one hand and the needs of employers and service provision on the other. Medical directors already address concerns about doctors in their organisations, whether through local performance management, disciplinary systems or referrals to the GMC. The Government believe that, in the vast majority of cases, medical directors will be guided by their professional values to manage such issues fairly and in the best interests of patients. The alternative—an entirely independent structure of responsible offices in every healthcare organisation in the United Kingdom—would replicate the system of GMC affiliates, which was proposed, as noble Lords may remember, in 2007, and which professional bodies rejected during consultation as being disproportionate, impracticable and unaffordable.
I also draw the House’s attention to the evidence given to the Health Select Committee on 4 November 2010 by Professor Peter Furness, who is president of the Royal College of Pathologists and revalidation lead for the Academy of Medical Royal Colleges. Professor Furness acknowledged the potential for a conflict of interest, but he also said that the view that medical directors should not be responsible officers was held by “a minority” of medical royal colleges. He observed that the potential for conflict could be balanced by the fact that medical directors are best placed to resolve any problems that might arise. He also thought that the potential for conflict needs to be addressed by “open processes” to ensure that it does not cause problems.
We must also remember—this is a fundamental point— that responsible officers can make recommendations only about a doctor’s fitness to practise; they do not have the power to remove a doctor’s licence to practise. Their recommendations must be based on evidence, and it should be clear immediately if that is not the case. Further, if responsible officers make recommendations that are not based on evidence, they may be failing in their duties under good medical practice, which requires that doctors must,
“be honest and open and act with integrity”.
In that case, responsible officers could even bring their own fitness to practise into question. These are very serious issues for any responsible officer.
The Merits Committee’s concern that the regulations provide for no process of appeal against the recommendation of a responsible officer has also been raised by noble Lords. First, let me stress that the regulations will result in no change to the current situation, in which every doctor, including the medical director, has a professional duty to report serious concerns about another doctor to the GMC. Under the regulations, the responsible officer will be required to decide what recommendation to make to the GMC about an individual doctor’s fitness to practise. However, the GMC would then need to go through its own processes, which provide the doctor with an opportunity to defend allegations—including through an appeals mechanism—before the doctor can be considered unfit to practise. Under the regulations, local procedures to investigate concerns must provide for a doctor’s comments to be sought and taken into account.
In England, as part of the responsible officer’s role in dealing with concerns about a doctor’s conduct or performance, the responsible officer will also be able to recommend suspension to the designated body. However, the decision on suspension is for the designated body and should engage that organisation’s performance management and grievance procedures. I think that sufficient mechanisms are already in place that protect the doctor’s interests without the need to create an additional bureaucratic structure to allow doctors to appeal against what are, after all, simply recommendations.
Two further issues were raised by, I think, the noble Baronesses, Lady Thornton and Lady Finlay. The first relates to a failure to specify that appraisal should encompass the whole of a doctor’s practice. That is in fact provided for in Regulation 11(3), which states:
“The responsible officer must ensure that appraisals … involve obtaining and taking account of all available information relating to the medical practitioner’s fitness to practise in the work carried out by the practitioner for the designated body, and for any other body, during the appraisal period”.
Nevertheless, I repeat the assurances given in another place that we will consider whether we can strengthen the guidance to make it clearer that appraisals must address the whole of a doctor’s professional practice.
The second issue relates to indemnity and, in particular, to the fact that organisations should provide indemnity for responsible officers. Indemnity payments are already calculated on the basis of a shared risk. At this stage, we understand from the medical defence organisations that there is no suggestion that the contributions from those who take on the responsible officer role would need to rise. However, we are told that the medical defence organisations will keep the situation under review. I assure noble Lords that, if we find contributions rising as a result of these regulations, we will review the position.
Baroness Finlay of Llandaff
Will the Minister clarify that the way in which the regulations are written is sufficiently flexible to allow a doctor to take a career break, to move into a different area or to take a break from clinical practice as it currently stands? Are they also sufficiently flexible to allow the responsible officer role not to be tied to the medical director of a trust, but if the medical director of a trust resigns from that post but is very suitable to remain the responsible officer, they can remain the responsible officer and the medical director can be someone else? Furthermore, are they sufficiently flexible to allow you to be able to get rid of a responsible officer if it turns out that they are not being wise enough?
Although this is slightly irregular, I should point out for clarification that I am not against these regulations at all—I think that they need to go through. My concern about five years is that most doctors are still in training at that stage.
Earl Howe
My Lords, the answer to the first question of the noble Baroness, about career breaks and so on, is yes, the regulations allow for that. In answer to her second question, we are not specifying that responsible officers have to be medical directors. As she knows, we are leaving it up to the organisations to decide that. Therefore, she can be reassured on her other questions.
Baroness Thornton
My Lords, I thank all noble Lords for contributing to this debate, particularly the noble Baroness, Lady Finlay, the noble Lord, Lord Colwyn, and my noble friend Lord Rea. I also thank the Minister for his comprehensive answer. Noble Lords will have heard me say from the outset that I did not intend to delay the implementation of the regulations. However, noble Lords should also acknowledge that if we ignored the reservations expressed by the Merits Committee and various medical organisations, and did not to pay heed to what they had to say about this, we would not be carrying out our duty of scrutiny. I thought that the most important thing was to get on record the answers to the very questions that we have raised.
I thank the Minister for his usual comprehensive and competent answer, which helpfully addressed many concerns. The abolition of PCTs and strategic health authorities is on the “wait and see” bit of this agenda. We can take it that the Department of Health has not yet worked out what it is going to do. I take some comfort from the fact that this, like much else, is in the melting pot of what is becoming the NHS at the moment; it is work in progress. With that and with thanks, again, to the Minister, I beg leave to withdraw the amendment to the Motion.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, we are very much making progress as we reach Amendment 3B at quarter to nine tonight. This is an important amendment, and with it I speak to my Amendments 120, 124 and 125.
In view of all our discussions I think that noble Lords will agree that, when it comes to a Minister deciding to bring an order before Parliament, the information made available to Parliament and the parliamentary scrutiny procedure assume great importance. My Amendment 124 seeks to ensure that sufficient information is provided to Parliament. In it, I propose five new subsections that would ensure that Parliament would be able to have a sufficient explanation, an explanation of the consultation, information about representations, and the kind of information that is important when it comes to dealing with an order. Perhaps more importantly, my Amendment 125 seeks to put in place an appropriate parliamentary procedure for scrutiny. My amendment is broadly based on the Legislative and Regulatory Reform Act 2006 and what is described as a super-affirmative procedure in it. I do not want to repeat what has been said before but that Act is highly relevant to our discussions on this Bill, because it gives extensive powers to Ministers to remove or reduce burdens resulting from legislation, including primary legislation.
I agree with the report of the Delegated Powers Committee when it said that,
“the insertion of a super-affirmative procedure cannot bring a misconceived delegated power within the bounds of acceptability”.
It went on to say:
“A single stage of consultation is clearly no substitute for the detailed scrutiny afforded by the use of a bill (the process by which the functions of many of the bodies listed in this Bill were debated and decided)”.
If we were to continue with the use of this Bill, the committee suggests that,
“the government, not Parliament, would retain the sole ability to make amendments to orders”,
although my noble friend Lord Dubs has tabled an amendment that seeks to create a procedure whereby orders can be amended. I agree with the committee that, if the legislation is rotten to its core, the insertion of a super-affirmative procedure cannot bring it,
“within the bounds of acceptability”.
However, we are trying to solve the conundrum of ensuring that these bodies are reviewed on a regular basis, which we all want. The noble Lord, Lord Renton, talked earlier about the need for a process whereby there can be minor changes; again, that seems eminently sensible. A super-affirmative procedure may be one way in which one can make the Bill more acceptable and certainly give more effective parliamentary scrutiny.
The LRR Act allows for a more extensive parliamentary scrutiny process. Section 12 sets out procedural requirements for making orders. The Minister has to consult on the order, and then lay a draft order and explanatory document before Parliament. The order’s procedure can be a choice of negative, affirmative or super-affirmative. Essentially, the Minister has to recommend, in an explanatory document accompanying the draft order, which parliamentary procedure should apply and his or her reasoning for that. The level of scrutiny recommended should depend on the views of the Minister on the complexity and impact of the order. That may be informed by representations on the proposals received during the consultation process, and the Minister’s recommendation on whether a procedure should be negative, affirmative or super-affirmative shall apply, unless either House of Parliament requires a more onerous procedure.
The key importance of the LRR Act is in the nature of the super-affirmative procedure, because that Act provides for a committee of either House, charged with reporting on the draft order, to recommend that no further proceedings be taken in relation to the draft order, unless that recommendation is rejected by a resolution of the House. It is sometimes known as the veto procedure, although it is clearly not an absolute veto. None the less, it is a pretty powerful mechanism for scrutinising such orders. I should have thought that any Government who were faced with a view of a committee charged with considering the order that it should not go ahead would have to think very seriously about whether they wished to go forward with that order.
My amendment builds on the super-affirmative procedure and gives a number of options for a committee of either House to recommend to either House that the order be approved in its current form, or that it be amended, or that no further proceedings should be taken in relation to the draft order, or that it is more appropriate that it be progressed through primary legislation. My amendment specifies that unless the recommendation is that the order be approved, it cannot be progressed unless the recommendation is rejected by a resolution of the House. If the recommendation is that the order be amended, it may not proceed unless the recommendation is rejected or the House approves the order, as revised by the committee.
I have sought to build on the super-affirmative procedure and include some more flexibility in it. This is one of the key planks to reaching a consensual agreement on the Bill in your Lordships' House. I know that the noble Lord, Lord Taylor, is bringing some amendments, but they do not go as far as mine. It would be well worth thinking about whether a kind of super-affirmative procedure—if not with my amendment, then, I am sure, in a later amendment—can be provided for. However, the key principle here is that a Select Committee of either House should be able to take an order away, and if that committee decides that it is not appropriate for the order to go forward and that primary legislation might be more appropriate, although it is not an absolute veto, a measure such as this would provide great reassurance to your Lordships’ House.
Baroness Thomas of Winchester
My Lords, I am taking the highly unusual step of intervening briefly at this stage as chair of the Delegated Powers and Regulatory Reform Committee. Our latest report on the government amendments, because of the lateness of their tabling, was placed in the Printed Paper Office only this morning. I am grateful to the staff for preparing the document so quickly after our second meeting on the Bill yesterday.
If ever the committee was set up for a Bill, this was the Bill because of its skeletal nature. In our report, our view—as has been stated many times today—was unequivocal: the powers contained in Clauses 1 to 5 and 11 are not appropriate delegations of legislative power, as they would give Ministers of this and future Governments unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process. The committee's original report was careful not to recommend any particular course of action for the Government to take to amend the Bill to strengthen parliamentary control—contrary to what the Minister said in his letter to us. However, we set out a range of options, which were to be seen not necessarily as alternatives, as we believed that one or more might prove necessary. One option was for a form of the super-affirmative procedure that has already been enshrined—as we have also heard many times today—in the Legislative and Regulatory Reform Act 2006. The Government have now tabled a form of this procedure. My purpose in speaking now is to address their amendments.
In our report published this morning, we welcomed the government amendments as a step in the right direction, because they enhance parliamentary scrutiny. However, they do not address the fundamental problem that, in the committee's view, the delegated powers in the Bill—the purposes of which are not specified or limited—are not appropriate delegations of legislative power. In other words, although Ministers of this or any future Government must “have regard” to certain matters, they are not constrained by any legislative provisions. This makes the super-affirmative procedure in these amendments very different from the procedure in the Legislative and Regulatory Reform Act 2006—as other noble Lords pointed out in the earlier debate. In that Act, parliamentary scrutiny is much more effective. For example, if a committee of either House recommends that no further proceedings should be taken on a draft order, any such proceedings are automatically stopped—as the noble Lord, Lord Hunt of Kings Heath, said—until and unless the recommendations are rejected by the House itself in a procedure commonly called the veto. In the super-affirmative procedure of Amendment 118, which the Government are proposing, the Minister need only have regard to any resolution of either House—a very different matter.
I will not list all the differences between the procedures in the 2006 Act and those in the Bill, as they are set out in our sixth report. Of course, there are differences in the two procedures for orders in the Bill, in Clauses 1 to 6 and in Clause 11. I will give one example to illustrate why there could be a problem with the second lot of procedures. Under Clause 11, the Minister may wish to make an order containing proposals for several bodies to be transferred from Schedule 7 to Schedule 1. During consultation, many representations may be made about one body. The Minister may be urged to amend the draft order, but to do so he must go through the whole 30, 40 or 60-day procedure again. This is unlike the procedure for earlier clauses. Rather than holding up the fate of the other bodies in the order for another two or three months, he may decide that, although he has had regard to all the contributions that he has heard, considerations of time override all representations and so he may decide to make the original order after all. It is clear from the Minister's letter to the committee that time is the crucial factor in the way that the Bill has been drafted. I understand that, having announced that there is to be a bonfire of the quangos, the Government want to light the bonfire as soon as possible. However, it is the duty of the committee of which I am chair to make sure that the match is not lit before Parliament has more effective control over the whole process.
Lord Adonis
My Lords, the noble Baroness has made an immensely powerful case and the House is deeply indebted to her and her committee for the work that they have done. Essentially what is being introduced here is what on the continent would be called a decree-making power. There is now a capacity well beyond the usual use of ministerial orders for the Government to legislate by decree. One needs only to look at the scope of the Bill and the headings of Clauses 1 to 6 to see how significant this is. Clause 1 is entitled “Power to abolish”—that is, to abolish wholesale a whole string of organisations listed in the Bill which have been established under a proper statutory procedure. Clause 2 is headed “Power to merge”; Clause 3, “Power to modify constitutional arrangements”; Clause 4, “Power to modify funding arrangements”; Clause 5, “Power to modify or transfer functions”; and Clause 6, “Power to authorise delegation”. This is essentially a wide-ranging, decree-making power which, if the Bill is passed in its current form, Parliament will be conferring on the Executive. This has very significant constitutional implications, and the seriousness with which the House has been addressing the Bill is well merited in this case.
My noble friend’s amendment looks to me to be the minimum necessary to ensure that this decree-making power—because that is what it is—is kept within proper bounds and that there is proper parliamentary scrutiny, including a requirement in each case for the Government not simply to explain their reasons but to explain why they are seeking to reject the expert opinion of a committee of both Houses expressed upon proposals put forward by the Government. It seems to me that this is exceptionally important. The amendment of my noble friend Lord Hunt would require the Government to explain why they are not prepared to accept the reasoning of a committee of either House and, where that committee recommends for good and sufficient reasons that proceedings on an order should not take place, it requires the authority of the two Houses for proceedings then to take place. It is called a super-affirmative procedure and, as always when we are discussing new things, it appears to be a significant enhancement of parliamentary authority. However, looked at another way, conceptually this is putting a proper curb on a decree-making power, which in the opinion of the noble Baroness and her committee is probably one that should in any event be vested in the normal legislative process.
In order to see that the Bill is kept within proper constitutional bounds, I believe that the prerogatives of your Lordships should be respected. A move of this kind is essential or we will be faced with claims that we, as a House, have given the Government a power to legislate by decree without even the capacity for the recommendations of committees of our own House to be properly debated before the Government proceed.
Lord Norton of Louth
My Lords, I shall be brief because the noble Baroness, Lady Thomas of Winchester, has said everything that I would have wished to say. I welcome the fact that the Government clearly heard what was said at Second Reading and have taken on board the comments concerning the need for the procedure to be changed so that there is a greater role for Parliament in the process. Therefore, although the Minister has heard, perhaps the problem was that we were not shouting loud enough. I welcome the moves in the right direction and the fact that we now have Amendment 118, but it raises the question of why it was not in the Bill in the first place. However, the amendment goes only so far, for the reasons that we have heard. When one contrasts Amendment 118 with the super-affirmative resolution procedure, it is clear that Amendment 118 diminishes the role of Parliament relative to the super-affirmative resolution procedure, for the reasons that the noble Baroness mentioned. Therefore, I think that the Government should take away this new clause and come back with something that builds in the role of Parliament, akin to the super-affirmative resolution procedure, so that we play the role that we should be playing.
Lord Clark of Windermere
My Lords, I wish to follow the noble Lord, Lord Norton, because his point about the role of Parliament is absolutely critical. In a sense, we heard the legal expert, the former Law Lord, discussing earlier today in a learned way the basic thrust of what the noble Lord, Lord Norton, and I are saying. Ultimately, we are talking about the power of the legislature and the power of the Executive, and it is very important that we pursue the lines set out by the noble Lord, Lord Norton, and the noble Baroness, Lady Thomas, who explained the matter expertly and lucidly.
I very much welcome government Amendments 173 and 174 because they elaborate and outline in much more detail the orders which follow Clauses 17 and 18, which specifically relate to the forestry commissioners—the individuals. Of course, under these powers the Bill says that the constitutional arrangements of the commissioners can be changed by ministerial edict. That raises an important point because I think we will find that at least one of the commissioners is appointed by Her Majesty. It is interesting to see whether Ministers can take this power simply by an order. I put that in a positive way for Ministers to have a look at.
I am also interested in Amendment 174 because, as I understand it, it inserts a new clause after Clause 18. I seek information from the Minister: does this mean that Clause 19 becomes redundant? Does the second part of government Amendment 174 become the new Clause 19? That appears to be the case, but I would welcome guidance on that. I shall not detain the House any longer.
Lord Taylor of Holbeach
My Lords, this group of amendments concerns the central question of parliamentary scrutiny and procedure in relation to the order-making powers in the Bill. This group includes government Amendments 118, 126, 130, 173, 174 and 179. Perhaps I can reassure the noble Lord, Lord Clark of Windermere, that that is exactly what happens. It institutes a parallel framework for those sections of the Bill dealing with the Forestry Commission. The numerical sequence is exactly as he described. Amendment 122, in the name of my noble friend Lord Lester, and Amendments 3B, 120, 124, and 125 in the names of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt, are also in this group. In this debate, I will discuss in particular government Amendment 118, which relates to orders made under the powers in Clauses 1 to 6. Amendment 130 replicates this amendment in relation to orders made under Clause 11, and Amendments 173 and 174 make a similar provision in relation to the forestry provisions in the Bill.
We also intend to create similar provisions in relation to the powers conferred on Welsh Ministers by Clause 13, and are in discussions with the Welsh Assembly Government about how best to achieve this. As part of this process, I give notice of my intention to oppose the Question that Clauses 10, 12 and 19 stand part, as they are now replaced by the government amendments.
Government Amendment 126 specifies that an order made under Clause 11 may not be included in the same instrument as another order made under the Bill. Government Amendment 179 is a consequential amendment to Clause 28, which defines references to various periods of scrutiny used in earlier government amendments.
In the previous group, I noted the high level of consensus which had emerged regarding the requirement to consult in relation to the powers in this Bill. Similarly, there is much consensus around the idea that Ministers should ensure that Parliament is properly informed about the content and background of orders, through the laying of a draft order accompanied by an explanatory document, detailing the reasoning for the order and including the results of the external consultation which preceded it. In addition, government Amendment 118 requires this document explicitly to address how the matters in Clause 8 had been addressed.
I note that Amendment 124, which is tabled in the names of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Royall of Blaisdon, specifies that the explanatory document should include a regulatory impact assessment, and I appreciate the intent behind this addition. The use of impact assessments is set out by the Better Regulation Executive in the Department for Business, Innovation and Skills. Departments are required to assess any policy of a regulatory nature that would affect the private sector, the third sector or public services against the impact assessment framework and are required to publish that assessment when the proposal enters Parliament. On this basis, I do not believe it is necessary to repeat this requirement in the Bill. Similarly, I do not believe it to be appropriate to set out in statute that Ministers should provide other information which they consider will be of assistance to Parliament given the difficulties in definition and the potential breadth of information that that would involve. However, these reservations notwithstanding, I hope that the noble Lords opposite will recognise the shared intent behind our amendments in this area and feel able to support the government amendments in question.
I now turn to the question of parliamentary procedure for orders made under this Bill as discussed, in particular, in Amendment 125 and in government Amendments 118, 130 and 174. At Second Reading, I made a commitment to noble Lords that the Government would produce a parliamentary procedure that will ensure enhanced parliamentary scrutiny. The government amendments I have tabled meet this commitment by giving Parliament the opportunity, within 30 days of the laying of a draft order, to require that an enhanced procedure is required for approval of the order. Parliament will make that decision. This enhanced procedure would require a 60-day period of consideration, rather than the standard 40 days for the affirmative procedure, and for the Minister to have regard to any representations, resolution or recommendation from Parliament in relation to the draft order before seeking approval by a resolution of both Houses. This procedure would give both Houses of Parliament an extended opportunity to scrutinise and comment on these orders, and I hope it provides the reassurance the House is seeking.
Amendment 125, which is tabled in the names of the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Royall of Blaisdon, would introduce a new parliamentary procedure for these orders, going beyond the extensive super-affirmative procedure described in the Legislative and Regulatory Reform Act 2006 by giving a Committee of either House the opportunity not only to reject an order, but to amend it or to recommend that the proposals be taken forward only through primary legislation. I recognise the sentiment from which this amendment springs, but I cannot support it for a number of reasons.
First, it is my belief that the parliamentary procedure it proposes fundamentally changes the role of Parliament, and of this House in particular, in dealing with secondary legislation. This may be something that many noble Lords would welcome, but it is surely not a debate which should be resolved within the confines of deliberation on the Public Bodies Bill. In this regard, I wish to draw the House’s attention to the initial report on the Bill by the Delegated Powers Committee published on 12 November. The report described the suggestion that orders might be amended as “virtually unprecedented” and highlighted the difficulties inherent in seeking to produce a workable procedure of this nature, particularly in the event that the two Houses disagreed on the content of an order.
Secondly, a comparison to the Legislative and Regulatory Reform Act 2006 is telling. The order-making powers in that Act are far broader in scope than those in this Bill, which are restricted not only to a particular branch of statute—that relating to public bodies—but also to the specific bodies defined in each schedule. Perhaps I may say that I am very grateful for the intervention of the chairman of the Delegated Powers Committee, my noble friend Lady Thomas of Winchester, and for her contribution to this debate. It has been useful to have direct input from that committee—hot off the press, one might say—and it reinforces the importance of our debate about this procedure. I am also grateful for the acknowledgement that the Government have sought to address the Delegated Powers Committee’s concerns. The DPC’s second report suggests that the inclusion of the super-affirmative procedure in the 2006 Act, and the degree to which Section 2 of that Act is comparable to this Bill, provides a justification for the more restrictive parliamentary procedure. However, given that the super-affirmative procedure provision in the 2006 Act are designed to apply in general to the much wider powers in that Act, I maintain that this would not be a proportionate procedure for the Public Bodies Bill.
To suggest that this Bill requires a more restrictive scrutiny procedure than the Legislative and Regulatory Reform Act therefore seems to me to be a somewhat disproportionate response, particularly in the light of the additional safeguards that we have sought to introduce. However, I acknowledge the differing position of the Delegated Powers Committee in this regard. I have listened carefully to the contributions made by the noble Lord, Lord Adonis, and my noble friend Lord Norton of Louth, which rather backed up the arguments presented by the committee. I acknowledge the differing position of the Delegated Powers Committee in this regard and will consider this matter further.
The question of disproportionality is none the less raised again by the fact that, under Amendment 125, the proposed procedure would apply to each and every order made under this Bill. As was stated repeatedly at Second Reading, and has continued to be stated to me by many noble Lords since, there is broad agreement for many of the reforms in this Bill. The application of the procedure proposed by the Opposition, particularly in such an inflexible manner, would constitute an excessive hindrance on the reform programme of the Government, as well as requiring significant parliamentary time. Our approach, however, gives Parliament the flexibility to select an enhanced procedure, while maintaining for government the reasonable ability to act to implement its programme.
I finally wish to address the question of this House’s ability to veto statutory instruments made by affirmative procedure. By convention, we do not vote such instruments down, and I know that this is a source of concern from noble Lords who believe that this Bill excludes them from the decision-making process. I can assure the House that this is not the case. The enhanced procedure we have proposed, in conjunction with the additional safeguards and the requirement for consultation, would significantly strengthen the scrutiny of orders under this Bill both inside and outside Parliament. In addition, I would make this point: no body can be subject to the powers under this Bill unless Parliament gives its approval to its inclusion in the schedules.
Many noble Lords have already taken the opportunity, by amendment, to exercise their right to debate the inclusion of particular bodies, and the Government will be held to account in this fashion. Similarly, any new body created following the passage, subject to the will of Parliament, of the Bill could itself only be added to the schedules via primary legislation. The Government are taking the opportunity, in primary legislation, to seek approval from Parliament to make a specific set of bodies subject to a specific set of powers. I believe that the approach we have proposed through the government amendments in the group is both sensible and proportionate, striking a balance between Parliament’s ability to scrutinise and the Executive’s ability to take forward its programme for government. In the light of these comments and in the context of my previously stated commitment to further consider the comments of the Delegated Powers and Scrutiny Committee on matters of procedure, I would ask the noble Lord to consider withdrawing his amendment.
Lord Adonis
The Committee will be extremely grateful to the noble Lord for indicating that he will consider this matter further and we applaud the degree of consultation that he is affording noble Lords. However, when he says that Clauses 1 to 6 confer specific powers on Ministers in respect of specific bodies, while he is clearly right in respect of the specific bodies because they are listed in the schedules, it is very debatable whether the powers are specific. For example, in Clause 3 the power is “to modify constitutional arrangements”. It states:
“A Minister may by order modify the constitutional arrangements of a body or office specified in Schedule 3”.
The clause is not at all specific as to what powers the Government will seek to take. That, it seems to me, is the whole point at stake in this debate. The powers given in Clauses 1 to 6 are extremely wide-ranging; they are not specific. If they were specific, your Lordships would be able to debate them and seek to amend them. So it is precisely for that reason that the fifth report of the Delegated Powers and Regulatory Reform Committee states in its opening paragraph:
“The Committee considers that the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
That seems to justify entirely the further look at these wide-ranging powers that the noble Lord has promised us, as well as at the case which has been made by many noble Lords for an exceptional parliamentary procedure to deal with an exceptional delegation of power, which this Bill proposes to give to Ministers.
Lord Taylor of Holbeach
Perhaps I may respond to the noble Lord. I am grateful to him for making the point, which is perfectly valid. It is true that the powers are general in their scope within the context of a constitutional arrangement. It may well be that it will concern changes in governance and so on of a body, or its representation in the case of a body listed in Schedule 3—that is, how the governing bodies are appointed. There could be a number of different aspects. I agree that they will differ and, by necessity, that is why this has been put in the most general of terms.
We would argue that we are indeed trying to construct a special form of scrutiny for the orders that will be tabled under this Bill, and that is what our amendments seek to address. I have accepted that the comments of the Delegated Powers and Regulatory Reform Committee published this morning mean that we need to look at this again because we want to try to do this within the context of parliamentary accountability. That is the purpose of seeking to reconsider this matter. I think that I have set out the arguments for why we are where we are and what we are seeking to do with our enhanced procedure for parliamentary scrutiny. However, it is important that whatever we determine here has to be compatible with the procedures of the other House because we would not want ping-pong on statutory instruments. That would be pretty difficult, so we need a process which is capable of operating across Parliament. That is an important consideration of which we are mindful.
Lord Hunt of Kings Heath
My Lords, I join with other noble Lords in thanking the noble Lord, Lord Taylor, for his response and for his willingness to have a look at this in the light of our debate. That is very encouraging. I am also grateful to him for the government amendments he has just spoken to, which are an advance on what is currently in the Bill. Again, that is encouraging.
However, the giveaway line in the government amendments is where it is stated that if within 30 days either House decides the order requires further scrutiny, the order cannot be proceeded with until a period of 60 days has elapsed. During that time the Minister “must have regard to” any representations—which, in the end, means that the Minister can disregard as much as he regards. The problem we have is that the government amendments do not go anywhere near the scale of scrutiny we believe is required or as the noble Baroness, Lady Thomas of Winchester, clearly expressed. Crucially, they do not contain the veto option which exists in the Legislative and Regulatory Reform Act 2006, as my noble friend Lord Adonis made clear, and it is that option that immeasurably strengthens parliamentary authority.
I know that the noble Lord, Lord Taylor, said in his letter to the Delegated Powers and Regulatory Reform Committee that he believes there is a difference between this Bill and the LRR Act because of what he describes as the more restrictive matter of the Public Bodies Bill. However, as he knows, the Delegated Powers and Regulatory Reform Committee has analysed this and believes that the 2006 Act is narrower in at least two respects when compared with the powers contained in the Bill. In his further discussions the Minister might wish to reflect on his and the Select Committee’s views on that.
The Minister also said that my amendment would change the role of Parliament and he prays in aid the first report of the Delegated Powers and Regulatory Reform Committee published on 12 November. The Select Committee is well able to respond to that but I believe it is a misinterpretation of what the Select Committee report is saying. My reading of it is that after expressing concern about the lack of scrutiny, the Select Committee puts forward a number of ideas for how Parliament might enhance that scrutiny, one of which is the super-affirmative procedure; another is a procedure which would allow Parliament to amend proposed orders under the Bill; and another is a sunset clause. The noble Lord is guilty of putting together the super-affirmative suggestion and the procedure to allow amendments and to pray them in aid in saying that my amendment falls because it would allow for amendments. I am not aware of any wording in my amendment which states that the House can amend the orders. I have built on the super-affirmative procedure contained in the Legislative and Regulatory Reform Act. That is why I do not think I am guilty of advancing the powers of Parliament in the way the Minister suggests.
The noble Lord raised the important question of the powers of this House in relation to secondary legislation. He said that, by convention, this House does not vote down statutory instruments. I dispute that interpretation. I refer him to paragraph 10.02 of the Companion which states clearly:
“The House of Lords has only occasionally rejected delegated legislation”.
It then goes on to say:
“The House has resolved ‘That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration’”.
The Minister may be aware that there has been an interesting discussion between the noble Lord, Lord Strathclyde, the Leader of the House, and the Select Committee on the Merits of Statutory Instruments on this very matter.
The question is the extent to which the Leader now accepts the recommendations of the Joint Committee on Conventions chaired by my noble friend Lord Cunningham, which were accepted by your Lordships' House after debate. That committee’s report made it very clear that there were circumstances in which it was perfectly proper for this House to seek to defeat secondary legislation; for example, in relation to a skeletal Bill. I am convinced that it is perfectly proper for this House to seek to defeat any order under this Bill as it is now written.
Lord Taylor of Holbeach
Perhaps I may take the noble Lord back to that section of my speech which addressed this issue. I was merely making a point of observation. I think that the only statutory instrument to have been voted down in my time in this House was the casinos order. I think that it is reasonable to say that we do not do it. Whether we should is a different issue altogether. My point was that many noble Lords might welcome a debate about that, but it is surely not a question that should be resolved within the confines of deliberation on the Public Bodies Bill. The right place is in the sort of discussions to which the noble Lord referred; it is not this Bill.
Lord Norton of Louth
My Lords, I do not want to digress too much into academic discussion on conventions, but the fact that we have not done it does not necessarily make it a convention. For many years, MPs did not defeat the Government in the House of Commons, but it was not a convention that MPs did not vote against the Government. Just because we have not gone through with doing this—I have never accepted that there has been a convention—it does not mean that this House is not perfectly free if it wishes to reject secondary legislation. It is not, as is sometimes claimed, a nuclear option; it is a popgun option. It is perfectly open for the Government to come back with a fresh order, so I see no reason why we should not exercise our due powers.
Lord Hunt of Kings Heath
My Lords, that is a very helpful intervention. The Minister said “by convention”. I am afraid that I interpret that to mean that it is a convention of this House that we do not vote down statutory instruments, which I must refute.
Lord Taylor of Holbeach
I think that I might change my wording to “custom”.
Lord Greaves
Perhaps the noble Lord, Lord Hunt, might consider that the relevant statistic is the number of occasions on which the House divides on such instruments rather than the number of occasions on which the Division results in their being voted down. It is clear that the House divides on instruments rather more often than it votes them down, largely as a result of this Liberal Democrat group putting matters to the vote in the previous Parliament. The number of such Divisions is not huge, but there has been a handful of them in my recollection rather than none at all. If the House accepts that it can divide, it must accept that it is capable of voting instruments down.
Lord Hunt of Kings Heath
I have certainly noticed the reluctance of the Liberal Democrat Benches to put things to the vote; sometimes, they have to be encouraged to do so, as the noble Lord, Lord Lester, found out earlier today.
The noble Lord, Lord Greaves, is right that a number of developments have occurred in secondary legislation. Noble Lords have been encouraged sometimes to put down non-fatal Motions, which has been very helpful. Equally, there have been votes on some orders which have been lost. However, I accept what the Minister has said—that is, it is more the custom than the convention.
Notwithstanding the seeming withdrawal of the noble Lord, Lord Strathclyde, from what we thought was a consensual agreement in relation to Cunningham, I am clear that this House has every right to vote down an order. I am absolutely certain that, unless this Bill is heavily amended, there will be a series of votes on each organisation and the Government will find themselves in very great difficulty. We agree with the principle, which is why it would have been much better if this Bill had been sent to a Select Committee. Well, we did not win the vote. It would be much better for the Government if they were to accept a super-affirmative procedure along the lines suggested in my amendment. They will find, in the end, that that will be a much more satisfactory way of dealing with these matters than with the implied possibility of each individual order having extensive debate and votes at the end of it.
The Minister has very kindly said that he will consider very carefully the report of the Delegated Powers and Regulatory Reform Committee and the debate that we have heard tonight. I believe this to be one of the most important debates in the whole Bill until we get to Schedule 7, Clause 11. That debate clearly ought to be in prime time and it would be right for me to withdraw the amendment; I am sure that we can have good constructive discussions between now and Report. I beg leave to withdraw the amendment.
Lord Rosser
Lord Rosser
My Lords, this is a Bill that lacks detail and it lacks background information. As we heard at Second Reading and again today, this Bill falls into the surprising category, bearing in mind what it seeks to do, of being a framework Bill. It is through this barebones framework that Parliament is asked, in effect, not to insist on its function of scrutinising amendments to primary legislation. The amendment I am moving on behalf of my noble friends suggests that more information is required before such a move can be contemplated. This is a probing amendment and its purpose, and that of Amendment 180, is to ask the Government to explain what their intentions are about providing necessary information. Our view is that this information should be provided before the Act, and any powers granted under it, come into force. Our Amendment 180 would change the commencement date of the Bill to a date determined in an order made by the Minister, but the amendment also provides that such an order,
“cannot be made unless, at least one month before making the order the Minister has laid before Parliament a statement outlining … how and by whom the functions of the bodies listed in Schedules 1 to 6 are to be carried out in future; and … the expected costs and liabilities associated with the proposed changes to the bodies listed in Schedules 1 to 6”.
Clause 30 in the Bill as drafted states that the Bill comes into force,
“at the end of the period of two months beginning with the day on which it is passed”.
It is unclear why two months are required and again no information has been provided on this point. The amendment we propose provides a flexible timespan so should not present an issue. Such a statement, as called for in the amendment, and provided at least a month before the commencement order, will enable Parliament to consider the issues around the proposed arm’s-length body reform agenda of the Government, and it will provide a much more effective scrutiny role of the actions and decisions of the Executive than is currently provided in the Bill. To put in plainly, it will answer questions about who will be doing what and how; how much is it going to cost; and what will fall through the cracks. Such transparency will benefit both your Lordships’ House and the other place—most particularly in the light of the Minister’s edict earlier this evening that the public bodies in the schedules could not express a view about the impact of the Bill on their functions and activities. It will also increase the understanding of affected persons and the public at large about the Government’s intentions for these bodies, the thinking behind those intentions, and what the impact will be on people’s lives. How else can the Government be held to account without this information?
A further advantage of providing a statement to Parliament covering the issues referred to in Amendment 180 is that such a requirement would help to ensure that Ministers exercise their very considerable powers under the Bill in a responsible and considered way. After all, Ministers should not be tempted to take advantage of the opportunity to make an order under the Bill without first having set out well beforehand the changes and impacts resulting from the decision and the associated liabilities. Ministers should be under no illusion that the powers vested in them through the Bill are to be treated responsibly and should be exercised openly rather than from behind semi-closed doors.
The Government need to be clear about and understand the implications of their public bodies reform agenda, whereas this House needs to be able to test that Ministers have made clear and logical decisions about which functions a body need, or need no longer, carry out. We need to be reassured and satisfied that no functions that are currently being carried out have been overlooked and not considered. Where functions are to be transferred, we need to be satisfied that no conflicts of interest would be created and that the body or person to whom the functions are to be transferred has the competence and the knowledge to undertake that role.
We also need to be sure that a proper and realistic assessment has been made of the costs, savings and liabilities associated with any intended changes to bodies in order to be satisfied that all costs and potential costs, as well as quality-of-service and provision issues, have been properly addressed and assessed. That is particularly relevant where, for example, some 65 per cent of the costs of a non-departmental public body relates to grants that are passed on to other organisations to fund universities, scientific research, skills training, legal aid and other core government functions.
Amendments 4 and 180 would help us to achieve those necessary and important objectives—I stress the word “help”—but they should not be seen in isolation. The Constitution Committee’s report on the Bill states that,
“the Bill vastly extends Ministers’ powers to amend primary legislation by order. Such powers … must be clearly limited, exercisable only for specific purposes, and subject to adequate parliamentary oversight”.
In the view of the committee, the Bill does not meet those tests. As a responsible Opposition who believe in open and accountable government, we have tabled several amendments designed to strengthen the procedure to which the draft orders made under the Bill will be subject before they become law. Those amendments include our proposal for a super-affirmative resolution process and provision for an explanatory note to accompany a draft order when it is laid before Parliament. We foresee that such notes would include more detailed regulatory impact information about the particular proposal, whereas the information in the statement proposed under Amendment 180 would provide a high-level assessment.
The Minister for the Cabinet Office, Mr Francis Maude, has spoken about the need for greater accountability and transparency in public bodies. He has noted that the existence of what he described as “too many bodies” has,
“meant that elected politicians have been able to avoid making difficult and tough decisions. This is a direct challenge to accountability and is contrary to openness and transparency in public services that this Government seek to achieve”.—[Official Report, Commons, 14/10/10; col. 27WS.]
In the light of that Statement, do the Government really intend, as they could under the Bill, to abolish bodies such as Consumer Focus, the Youth Justice Board for England and Wales, the Administrative Justice and Tribunals Council or the office of the Chief Coroner without a statutory requirement to provide the basis on which the decision has been made? That certainly does not sit well with the words of the Minister for the Cabinet Office about the Government’s goals of greater accountability, transparency and openness.
We agree that transparency and accountability to the public are important, but transparency and accountability should apply not just to arm’s-length bodies but to Ministers and Governments. That will be provided not by Ministers quietly changing functions and operations of public bodies under the current terms of the Bill but by their providing the information that is necessary for the proper scrutiny of those decisions. I hope that, when the Minister responds, he will set out in some detail what information in line with our amendments the Government intend to provide to Parliament to enable it to carry out its role of scrutinising the actions and intentions of the Government that are exercised under the terms of the Bill. I beg to move.
Lord Greaves
I give general support to the general idea behind the amendment. The details of the amendment are probably impractical, but the underlying purpose of moving it as a probing amendment is absolutely vital. It goes to the very heart of why many of us are unhappy about this Bill as it stands at the moment. There has been a lot of talk about procedures and super-affirmatives and all that kind of thing, but the basic problem at the heart of the Bill is that it proposes to put on the statute book a list of organisations which the appropriate Minister will have the power to abolish or merge, or the power to modify their constitutional or funding arrangements, to modify or transfer their functions or to authorise delegation. In some cases, organisations appear on more than one of these lists. That happens in Clauses 1 to 6. I shall ignore Clause 11 and Schedule 7 at the moment, as they give rise to a different issue altogether—a list of organisations that may or may not be added to these other lists in due course. What is to happen to those is all up in the air and all rather a mess.
Clauses 1 to 6 set out the Government’s clear and stated wish to abolish all the organisations in Schedule 1, for example. That is government policy, as we have it so far. If the Government have a policy to abolish this long list of organisations—and I, for one, do not disagree with the abolition of quite a few of them, although I would argue about some of them—there is not just the question of the abolition of the organisation. Abolishing an organisation is a mechanical thing; you close it down and no one is employed by it. The crucial thing that this amendment gets to the very heart of is what will happen to the functions of those organisations. In my judgment, it is far more important that the Government tell us what is to happen to the multifarious functions of those organisations than it is to say that they wish to close them down as bodies or structures. The functions are absolutely crucial.
That is information that in some cases we are being provided with outside the confines of the Bill. We have some ideas about what will happen to the functions of the regional development agencies. We know that some of those functions are being ended and that their planning functions are being closed down altogether; in fact, they have been closed down in most cases already. Some functions will be transferred to local enterprise partnerships if and when they exist everywhere, although they do not yet exist everywhere. Even the regional development agencies have functions that we do not know who will carry out. There is the whole question of rural development and its funding, and two or three weeks ago I put down a Written Question on that matter. The answer, in effect, was that it had not been sorted out yet, that for the time being it would continue to happen through the RDAs but that sooner or later it would be transferred to someone else. The assumption is that it will be transferred to someone at the centre, but no one really knows. Even with bodies like RDAs, where quite a lot of work has been done and documents and White Papers have been published, we still do not know at all what will happen to the functions. With many organisations, we do not have a clue. It seems that this is the fundamental problem that the Government have with the Bill.
Later we will discuss amendments that would delete almost every organisation in Schedules 1 and 2, right through to Schedule 6 and the infamous Schedule 7. It will take a huge amount of this Committee’s time to go through these and try to prise out of the Government what they propose to do. I suspect that many of these amendments have been tabled not to delete the organisation from the list but to find out what the Government’s intentions are for the existing functions of each of those bodies. Which are to be closed down, which are to be transferred to other outside bodies and which are to be brought in-house within departments? Who knows what will happen to some of them? That is the crucial thing. It is what these bodies do that matters, not their structure, unless you work there and your job is on the line.
Therefore, this amendment is fundamental in that it gets to the very heart of one of the main problems with the Bill. We simply have not been provided with information by the Government as to what is to happen to each of these bodies. As I say, the time to provide that information is not, as set out in the Bill, after Royal Assent and before commencement. The time to provide that information is now, to this House and then to the House of Commons, so that we can be absolutely certain when we consent—if that is what we do—to the different organisations being in one or more of these lists of how the services and functions that they provide will continue.
Lord Maclennan of Rogart
My Lords, I very much agree with the purpose of Amendment 180. It is of fundamental importance that the purposes of the making of the order are fully understood in respect of the transfer of functions. It is more than desirable; it is inevitable and necessary that if the changes are being made to procure efficiency, economy or accountability, it should be possible to judge whether those goals are being achieved by the transfer of authority or the winding up of the body. I know that, in respect of the regional development agencies—notwithstanding the announcement of the LEPs—there is a great deal of uncertainty, for example in respect of the distribution of the European rural development fund, which has not been resolved. It has been suggested that this may be transferred to another body. It has been suggested that it might be transferred to a privatised body, perhaps even consisting of existing members of the RDAs, which have been responsible for this for some time. We have no idea how this will be handled. That is not satisfactory. It is a reasonable objective that the Bill should make this clear, for the reasons already given in this debate. The language of the amendment might not be absolutely suited to bringing this out; none the less, I hope the Minister will give serious thought to that requirement of transparency.
Lord Liddle
My Lords, I support this amendment and I agree very much with the comments of the noble Lords, Lord Greaves and Lord Maclennan. Amendment 180 is much needed if we are to have a rational and sensible process for deciding how we deal with public bodies. I return to the example of economic development. This is a classic case of a decision to abolish a body being taken without anyone thinking about what to do with its functions, what the costs and economic disbenefits are likely to be, and what will happen to the liabilities and assets.
The fact is that none of these questions was answered before the Government announced this decision. They are trying to make it up as they go along. That is not satisfactory. I know about this because of my interest as chair of Cumbria Vision. It is a very sad thing to see because the rhetoric is all about localism and setting up local economic partnerships that are supposed to be more local than the regional development agencies but the Government are devolving very few, if any, functions to the local economic partnerships. What is actually happening is that most of the things that were done in the regions are being centralised into government departments. Is that really sensible public policy-making? Should not the Government have been subject to the discipline embodied in this amendment in terms of explaining clearly what they were doing when they announced this decision?
As regards expected costs and their impact, I put down a Written Question to the noble Baroness, Lady Wilcox, in which I asked for information on costs, how many people were likely to lose their job and what the impact on this, that and the other would be. I received the Answer that no such information was available or was being sought, or something like that. That is not a satisfactory due process. The Government must do better than that as regards other bodies. That is why these amendments being put forward from this side of the House are so important. I hope that they will draw support from all sides of the House.
Lord Taylor of Holbeach
My Lords, Amendments 4 and 180 in the names of the noble Lord, Lord Hunt, and the noble Baroness, Lady Royall, which were introduced by the noble Lord, Lord Rosser, seek to introduce a requirement for the Secretary of State to make a statement to Parliament setting out how the functions of all the bodies listed in Schedules 1 to 6 would be carried out in the future, and the expected costs and liabilities associated with the proposed changes to bodies listed in those schedules. This statement could then be followed, after one month, with a statutory instrument that would commence the Act.
It is right and proper that, before approving a specific change to a particular body or office, the House should have access to appropriate information on that change, including information relating to functions and costs. I support the spirit in which I believe this amendment is tabled. However, I do not believe that it is required. As has been discussed at length in earlier debates today, it is a shared intention of the Committee that, when laying a draft order under the powers in the Bill, Ministers will publish an explanatory document setting out the reasons for making the order. Indeed, one glance at government Amendment 118 makes clear the detail that will be required to accompany a draft order. Orders at this stage will also have gone through the impact assessment process, and this impact assessment will be published at the time the order enters Parliament, in line with existing practice. I am therefore confident that existing requirements will ensure that Parliament is fully informed on the content and implications of orders before being asked to approve them.
I do not believe it to be appropriate to amend the Bill in this fashion; I believe that it would add limited value to the process and would, in so doing, risk an unnecessary delay to the reform programme that the Bill seeks to enable. Therefore, while I appreciate the intention of the amendment, I hope that the noble Lord will feel able to withdraw it.
Lord Maclennan of Rogart
I wonder whether my noble friend would consider the possibility, if not of accepting the amendment in this form, of some expansion of Amendment 118, to which he specifically referred, to enable the matters under discussion to be considered as part of the explanatory documents. Explanatory documents have always varied in quality and content, and it makes sense that these specific pieces of information should be given and that there is a standard for performance in respect to that.
Lord Taylor of Holbeach
As noble Lords will know, an amendment follows on from this that concerns functions—not this evening, I hasten to add; this is just a trailer for Monday—so we will look at another amendment that reinforces the message of this amendment and the intervention by my noble friend Lord Maclennan.
We do not intend to hide anything but there is a difference between presenting a statement covering the whole Bill before the Bill is implemented, and explanatory documents giving full information each time a statutory instrument is laid. The Government take the view that that is the focus that Parliament requires, and that to seek to provide a comprehensive review of all reforms in the Bill before it can be enacted would be an unnecessary delay, and not necessarily a particularly precise operation. That is why I suggested to the noble Lord, Lord Rosser, that he withdraw his amendment.
Lord Rosser
My Lords, I thank the Minister for his response, and other noble Lords who have participated in this brief debate. During it, reference was made to difficulties in obtaining the kind of information sought under the terms of the amendment. Yet that is presumably information that the Government have already, or how were decisions made on which bodies it would be advantageous to place in Schedules 1 to 6 if some decisions had not already been made as to whether their functions needed to be continued in future, or whether their functions could be placed better elsewhere and what the costs would be? There is some difficulty in accepting that the Government do not already have the information sought in the amendment.
One argument that the Minister just put forward was that there would be delay to the programme, but surely that should not be the primary consideration. The primary consideration should be providing the information necessary for this House to make decisions on what the Government intend to do, to scrutinise those actions and to query them. In the light of what the Minister said, it is clear that his motive is not to provide this House with sufficient information in good time to make reasoned judgments; his only consideration appears to be to get through his programme as quickly as possible. An open, transparent and accountable Government need to declare their hand, thinking and reasoning before the Bill comes into force, to ensure proper time for debate based on considered statements by the Government setting out which functions of which bodies will go, which functions will be transferred and to whom, how they will be carried out in future and the costs involved.
I am sorry that the Minister has not been prepared to go further. As I said, I believe that the Government already have much of this information, and the concern is that when the information is provided it will not be in sufficient time for proper debate and consideration before the Government seek to push the order through Parliament. I am disappointed with the Minister’s reply. He could have gone further; he has been urged to. I hope that he will reflect on the matter; I certainly will. In the mean time, I beg leave to withdraw my amendment.