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.