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.