Public Bodies Bill [HL]
(13 years, 8 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Baroness Thornton
Baroness Thornton
My Lords, I shall speak also to Amendments 93, 150 and 151. On Second Reading, many noble Lords expressed their disquiet at the inclusion in the Bill of the HFEA and the HTA. At the time, I wondered if they were included because the Minister’s department insisted that the Department of Health had to offer something up to the Bill, so the poor old HFEA and HTA were the sacrificial lambs. Indeed, in its own review of the arm’s-length bodies, the Department of Health gives a much more measured suggestion of the deliberation and consultation before decisions were taken about the HFEA and HTA over a timescale that is the life of this Parliament. Unless something has changed about the expected length of this Parliament, it seems precipitate and unnecessary to include these bodies in the Bill.
In a meeting convened by the Minister—the noble Earl, Lord Howe—to discuss this important matter with interested parties, which I was pleased to attend, he was concerned to reassure us about the consultation and discussion to take place before decisions were reached. We can add to those reassurances the proposal, as I understand it, that in the next Session—in other words, after May 2012—primary legislation will be introduced to establish a new science regulator in the department. If that is the case, the passage of that legislation would allow proper consultation and scrutiny across the field including the work of the HFEA and the HTA, which is the way in which such reforms should be carried out. So I ask again: why is it necessary for these bodies to be included in the Bill?
The HFEA and the HTA almost symbolise the concerns that noble Lords have expressed in relation to the constitutional propriety of the Bill in giving Ministers powers to amend primary legislation. Both organisations would have their work and their regulation fragmented unnecessarily when they need to be left alone to get on with the jobs that they do very well—although there is always room for improvement—until a proper period of consultation and pre-legislative scrutiny, which I am sure the noble Earl would wish to have, can precede the introduction of the science regulator Bill or whatever it will be called. That is the way to proceed.
What do these bodies do? The HTA licenses and inspects organisations that store and use human tissue for purposes such as research, patient treatment and post-mortem examination, teaching and public exhibitions. It also gives approval for organ and bone marrow donations from living people, including anatomy and stem cells and cord blood; public display—that is, the public display of any human body parts in various forms—post mortems; coroners; and transplants.
The advances made by science throw up new and sometimes complex ethical issues for the HTA to address. The cavalier use of body parts for research without the knowledge or consent of patients and their families was a huge scandal, leading to public indignation. Many in your Lordships’ House will recall the time and the thought given to the creation of a regulatory framework that would command public confidence. I fail to see what has changed that can allow any slackening off of the responsibility that the HTA bears for the use of human tissue.
The HFEA is the UK’s independent regulator of treatment using eggs and sperm and of treatment and research involving human embryos. It sets standards for and issues licences to centres and provides authoritative information for the public, particularly for people seeking treatment, donor-conceived people and donors. Very importantly, it also determined a policy framework for fertility issues which are sometimes ethically and clinically complex. The HFEA Act 2008 includes provisions for research on different types of embryos and changes the definition of legal parenthood for cases involving assisted reproduction. Therefore, the work of both bodies is of enormous scientific importance apart from anything else.
The arm’s-length body review in July 2010 concluded that the HFEA carries out essential functions which satisfy,
“the criteria for being undertaken by an arm’s-length body”.
The review states that the HFEA,
“deals with issues that are judicially and ethically complex and contentious”.
The HFEA is a world-respected model which has been used by other jurisdictions to deal with extremely technical and legally complex areas of practice. We have to ask what will happen to the high level of expertise and experience in both organisations and whether it will be in the public interest to transfer regulatory functions to other organisations where this knowledge may be lost to the detriment of patient safety.
I know that some noble Lords, particularly some of our very respected medics, for sometimes differing reasons have expressed the view that time has moved on since the original reason was established for setting up these bodies, human fertilisation is not the novelty that it once was, these medical procedures no longer need the attention of their own regulator and therefore change is necessary. That is a powerful argument but I disagree with it, or at least I have yet to be convinced. It seems to me that the powerful reasons that brought these two bodies into existence, and the reason we in Parliament paid such close attention to establishing their duties, responsibilities and independence, are still as potent today as they were when they were founded. These are not primarily medical or scientific reasons but concern the need to maintain public confidence in the uses to which human tissue is put, and sometimes in the very controversial issues arising out of human fertility and procreation.
Time and consideration need to be given to the contribution to scientific research made by the HTA and the HFEA, and, of course, they should carry out their respective functions in a cost-effective and efficient manner with appropriate public accountability. We may wish to see change in the way that the HTA and the HFEA functions are carried out but I believe many of the changes needed could be achieved without their inclusion in the Bill. Change should be helpful in achieving the broader stated aims of reducing bureaucracy and saving money rather than simply focusing on a reduction in the number of arm’s-length bodies. By and large, by the way, I believe that both bodies have sought to make and have succeeded in making improvements in their work and functions in recent times. I believe that more now even than at Second Reading, given the Government’s proposals on research. As the proposals for the reorganisation of the NHS are discussed it seems to me that the future of the HTA and the HFEA need more time and much more consideration. Apart from anything else, the CQC, which it is proposed should become the healthcare regulator for the HTA and fertility treatment, will have neither the time nor the expertise to carry out this function until it has swallowed the regulation of the whole of the rest of medical and social care. One might imagine that if a scandal arises in four or five years’ time regarding either fertility regulation or the use of human tissues, the excuse will be given that the CQC was too preoccupied with the rest of its enormous brief to give these matters the important attention that they warrant. I beg to move.
Lord Warner
My Lords, I have added my name to Amendments 92 and 93 in part in a spirit of helpfulness—I hope that is the case—to the Minister as I have traversed the same ground as him on Department of Health arm’s-length bodies. In 2003-04, I was the Minister who reviewed DH arm’s-length bodies and halved their number. Therefore, I cannot claim to be against reducing the number of Department of Health arm’s-length bodies. Indeed, my sins are fully catalogued by this Government in annexe B of their document on the arm’s-length body review, which was published last year. Therefore, I own up fully to these past misdemeanours. However, as I have previously said about the Government’s own arm’s-length body review, although I do not necessarily agree with every aspect of it, it comprises a serious, comprehensive, clear and coherent set of proposals, unlike some of the things which emerged from other departments under this Bill. Therefore, I do not in any way wish to argue that it was not a thorough piece of work.
Lord Willis of Knaresborough
My Lords, I added my name to Amendments 92 and 93. I congratulate the noble Baroness, Lady Thornton, on presenting a reasoned case for both amendments. I also congratulate the noble Lord, Lord Warner, on being able as a Minister to say that we should get rid of the HFEA and the HTA and now arguing that we should retain them. That is quite a trick—I am sorry; I should not use “trick” in East Anglia references.
I support the amendments not because I believe that the Government have got it wrong, but because in presenting Schedules 5 and 7, and in the Explanatory Notes to the Bill, they have failed to present a convincing argument for changing from two well respected regulators to something that has not been explained well and clearly leaves a lot of questions to be answered. There is a need for an equivalent of the Human Tissue Authority. Sometimes we overplay the organ retention scandal. It happened in one hospital in one area. The practice was not rife through the whole research base; it is important to state that. Nevertheless, there is a need for a regulator. In the case of the Human Fertilisation and Embryology Authority, despite the fact that so much time has elapsed since the original regulator was put in place, science is changing dramatically and the research, particularly on cytoplasmic hybrid embryos—admixed embryos—was something that the HFEA rightly referred back to government to ask for a view, whereupon the legislation was updated.
I had the pleasure in 2007, when I was in the other place, of chairing a Joint Committee on the Human Tissue and Embryos Bill. When the noble Lord, Lord Warner, presented the idea of a regulatory authority for tissues and embryos, I was hugely in support. It made good sense to bring everything together; it was efficient; and the less unnecessary regulation we have, the better. However, while I was initially supportive, I was staggered by the response from a host of organisations that supported two regulatory bodies. I remember a consultative session one evening in Portcullis House when all the organisations that were opposed to any research on embryos, or any use of the embryo other than for its God-ordained purpose, came together and argued for the regulators to stay on the ground that this would protect the embryo. I left with a clear understanding that the principled, ethical and moral stance on the special relationship of the embryo taken by the noble Baroness, Lady Warnock, was something that the Human Fertilisation and Embryology Authority had taken to heart and incorporated into its regulatory function. To be fair, the Government listened to the Joint Committee and dropped their proposals, which is why we are where we are today. The Minister has made it clear in several forums that this is not a rerun of RATE, and I fully accept that. However, he must today make absolutely clear how tissue and embryos will be protected in the new regulatory and research environment. If you throw out the current organisations, it is clearly necessary for the Minister to clarify what will replace them.
The HFEA was far from perfect but it commands huge support from the research and clinical communities and, in particular, from the public. Ultimately, we regulate to protect the public and not simply to ensure efficient and effective clinical practice. However, the Government have now given us some clarification and we should at least examine the proposals that they are making.
In terms of research, I strongly support the report of the Academy of Medical Sciences. It makes good sense to establish a health research agency and to try to bring all medical research together under one body. Indeed, as the Health and Social Care Bill is almost totally devoid of any reference to medical research, at least there would be a regulatory body, run by clinicians and scientists, with some clear understanding about the way that medical research is carried out. Therefore, I believe that the proposal for bringing all medical research together is excellent. It certainly gives me confidence that, provided the Government accept the recommendation of the Academy of Medical Sciences for a new health research agency, their proposals will take us forward in a much more positive sense.
Will the Minister assure the Committee that regulation regarding research and research techniques will also reside with the health research agency? The idea of placing research under the new agency but putting the regulation of research techniques under a different agency is totally unacceptable. Will the Minister also confirm that the new health research agency does not require primary legislation and that it can be established relatively quickly without such legislation? If he is able to confirm that, can he assure the Committee that when the Bill goes to the other place there will be a clear timetable for setting up the agency? That will provide some clarity about the path ahead regarding research.
Where clinicians have a strong case is that there is a sense that techniques approved for clinical application should come within the regulatory framework of NICE or the CQC. I have some clear reservations about the CQC and I recognise that the Government will have to make the case. My qualification is that the CQC is untried, and there is a huge difference between inspecting care homes and inspecting clinics which use the most advanced techniques of assisted conception, PGD, the use of saviour siblings and so on.
In closing, will the Minister assure the Committee that the current team of specialists dealing with clinical application in the HFEA and the HTA will be transferred en bloc and kept together within the new organisation so that we do not lose impetus or, more worryingly, make mistakes? There is, I believe, a coming together in terms of what the Government want and preserving the best of what the HTA and the HFEA have to offer. I think that the Minister has to make the case but I believe that the Committee is listening.
Baroness Butler-Sloss
My Lords, I have been looking with interest at the very helpful parliamentary briefing, particularly on the HFEA and the statutory functions that fall into four main groups. I am very concerned about each area. If licensing is to go into the Care Quality Commission, as has already been mentioned, will that commission have the same level of expertise to deal with the really difficult cases that may come up? I speak as a former judge who had a case where semen was put into the wrong eggs. Two families found that the non-white semen had been put into white eggs, and the children born to the white family were not white. It was the most appalling story. It caused grief to two families and, of course, to the twin children. It became public knowledge. It was a case that I tried. What is needed is careful regulation of the clinics and expertise in what the clinics are doing.
Another matter I would like to raise in particular with the Minister, and one which has not yet been raised in this evening’s debate, is the collection of data, the division of information, and the maintenance of a register. What is happening, according to the Government, is that the licensing and regulating will go to the Care Quality Commission but the provision of the information, the data collection, will go somewhere else.
What rather shocked me was the last paragraph of the helpful briefing saying that the arrangements for the transfer of the information-related functions will be based on assessments, and functions will be integrated into the most appropriate body. We do not know where the data functions will be going, which I find extremely disturbing. It leads me to the view that this plan to abolish both the HFEA and the HTA, whose functions are going to be divided, has not been given the sufficient thought or impact assessment one would have hoped for. We have not yet been given good reasons why these two functioning bodies should be got rid of.
I entirely support the wise words of the noble Lord, Lord Warner. It may very well be that each of these bodies could be streamlined, pared to the bone, have less back-up staff and cost less money. However, having asked in another debate on this Public Bodies Bill, “If something works, why break it?”, I say that these two organisations appear to work and so it is premature, at least, to be abolishing them now.
Lord Walton of Detchant
My Lords, when I came into this House almost 22 years ago, my baptism of fire was the consideration of the Human Fertilisation and Embryology Bill. I spent a great deal of time considering its provisions, based upon that splendid report produced by the noble Baroness, Lady Warnock.
The purpose of the Act, as it became, was to license experiments on the human embryo up to 14 days after fertilisation, first, for improvement of the management of infertility and, secondly, to help in the prevention of the birth of children with fatal and seriously damaging disease.
Those objectives were, very largely, fulfilled. We got to a stage of being able, through licences from the HFEA, to embark upon a programme of pre-implantation diagnosis of some of the severest diseases like cystic fibrosis and muscular dystrophy. It did a wonderful job.
It became quite clear, however, that, because of the developments in human embryology and the enormous advances in research, it was necessary that the Act should be further amended, not only in order to prevent the birth of people with severe diseases but also to be able to use human embryo material and the stem cells derived from it for the treatment of human disease. That resulted in a number of other amendments and regulations being introduced.
We then went even further with additional developments. As many in this House will know, one of the great developments recently under a licence from the HFEA has been the ability to prevent the birth of children—not yet feasible but on the verge of becoming so—with a devastating form of mitochondrial disease. I will not go into the scientific detail because it is extremely complex.
I mention the word complexity because I cannot conceive that the role and responsibility of the HFEA—I entirely agree that it is not perfect; it may be slimmed down, streamlined or modified—could possibly be carried out by the Care Quality Commission, which is, under its major new responsibilities, required to inspect hospitals, care homes, general practices and all bodies concerned with the supervision of health work of all kinds. To try to carry out those responsibilities under the Care Quality Commission is simply not feasible.
Last week, as the noble Earl will remember, we debated a Question on the role of the Academy of Medical Science’s report on the governance of medical research. I agree entirely with what the noble Lord, Lord Warner, said: this is a very exciting and important development, particularly in the conduct of clinical trials and the supervision of research in general. It certainly does not cover the responsibility which the HFEA is carrying out, and I therefore cannot accept the Government's proposals to put that body within the Care Quality Commission.
I move on to the HTA for a moment. When I was a medical student in the early 1940s, on the top floor of my medical school there was a museum which was full of organs held in formalin in plastic bottles. They were a wonderful teaching resource, because they were organs showing the signs of disease and, for the teaching of medical students, they fulfilled a major responsibility. No one had asked the patients involved before those organs were retained for teaching purposes.
The problem of the Alder Hey so-called scandal was that the permission of the individuals from whom the organs were removed had not been taken. What nobody recognised at the time was that if you were to carry out a post-mortem examination to try to determine the nature and causation of the disease from which the individual had died, there was no way in which the simple carrying out of the post mortem and visual inspection of the organs could give you the answer. The organs had to be removed; they had to be pickled in formalin; they had to be studied under the microscope, to give the answers which everyone wanted to know as the outcome of that post-mortem examination.
Where members of my profession were mistaken was that it became almost accepted by doctors, pathologists and clinicians that once permission for a post mortem had been given they could assume that permission had been granted to retain the organs for such an examination. They were wrong. Hence, the Human Tissue Authority was created to control that process. It has been very successful not only in that regard but also in issues related to the retention of tissues obtained for diagnostic purposes by biopsy. It has also been extremely successful in controlling the use of anatomical material for teaching purposes. It has fulfilled a whole series of other functions. My view is that it is so necessary that that function should be continued that I do not believe, for the same reasons, that the Care Quality Commission could feasibly absorb that task. It could do so only if it took on board the scientific experts on human fertilisation and embryology on the one hand, to deal with the responsibilities of the HFEA, and the scientific experts in pathology, anatomy, molecular biology and other branches of medicine, to look at the human tissue issues and also to be able to deal with issues relating to the donation of organs for transplantation. Those complex issues are so broad in their responsibility that I do not believe that the Care Quality Commission could conceivably handle them all. That is why I give warm support to the amendments.
Lord Newton of Braintree
My Lords, my reason for not pressing my case earlier was that I knew I was going to be out-gunned by the noble Lord, Lord Walton. He has demonstrated that conclusively, and I am certainly not going to try to compete with him. I ought in passing to declare an interest I had at the time of the passage of the Human Tissue Act: I was then chairman of the Royal Brompton and Harefield, a major transplant centre which clearly had an interest in this matter.
I ought to confess, in what is going to be a brief intervention, that I am getting to be rather worried about the number of occasions on which I find myself in some sympathy with the noble Lord, Lord Warner. He indicated earlier that he had hopes of enticing me to a different part of the Chamber, if I understood his remarks correctly—but his hopes will be frustrated. I want to make some simple remarks from what I call the coal face, as I am chair of another health trust in the mental health field, on the issue of the CQC. The CQC was asked to do a huge new task by the previous Government, and is doing it valiantly, not least in the mental health area that I know. However, it is struggling to fulfil in the originally intended timescale the jobs that were put upon it. I wonder whether the CQC actually wants yet more tasks, whatever the argument might be in an intellectual sense. Even if we agree in the end to go down this path, and that is some way ahead yet, I hope it will not be too quick and that the CQC will be in a position to digest the meals it is being asked to take in before being asked to consume them. As a specific question: does the CQC actually want this work?
Baroness Deech
I support this amendment, and I declare an interest as a former chair of the HFEA. In other words, I was a gamekeeper, and there were poachers on the other side, if I may use that term in respect of some very eminent clinicians and embryologists in this country. They may tell you that IVF reproductive work embryology is now routine. Yet at the same time, they will say—or at least not deny—that the work they are doing is ground-breaking. So it remains: every day brings something new.
I have spoken about this topic many times in this Chamber and elsewhere, and I will not repeat myself, save to say that my admiration for the Minister is such that I share his pain on each occasion when I feel that he is trying to defend the indefensible. He would be grateful, I think, if we could somehow get him off the hook. One of the ways of doing that is cost. The principle underlying the abolition and retention of various quangos in this Bill is, of course, streamlining, efficiency and cost. The HFEA currently costs £7 million, of which all but £2 million comes from the patients. No one who cares about the patients could possibly imagine that they will be charged any less—or not charged at all—if these functions are absorbed into an existing or new body. The poachers, who are very keen to get rid of the HFEA, seem to think, when you listen to them, that there will be no regulation, that there will be a free-for-all. They are under the misapprehension that if this amendment fails, which I hope very much it will not, a merger of the HFEA will mean no regulation; as I say, a free-for-all. But that is not so. Primary legislation remains and no one has suggested that we would cease to have regulation for which this country is world renowned, having followed the lead of the noble Baroness, Lady Warnock, in her esteemed report written more than 20 years ago, which remains to this day the very best report on the issue.
Those who really dislike the whole concept of embryology and in vitro fertilisation because of their religious beliefs have, as others have said, still shown respect for the HFEA because they regard it as something of a shield against the wholesale misuse of embryos, as has happened in some other countries. Before it had regulation, Italy was the place everyone went to if they could not get what they wanted elsewhere. It was where you would go if you were white and wanted a black baby or vice versa, or if you were 64 or 70 and wanted a baby. Italy now has regulation, albeit in my view too strict. America has a patchwork of regulation, but has seen more scandals than we have. As my noble and learned friend Lady Butler-Sloss said, things go wrong sometimes as a result of simple human error, which in the end is probably not preventable. But at least we do not have the birth of octuplets, as has happened in the United States. We do not have those websites which noble Lords may enjoy googling one evening. They can look up “California Cryobank” and see lists of apparently brilliant Californian PhD students, all of them six foot six and sporty with IQs to match, offering their sperm for sale, and indeed the female equivalents their eggs. This is not the route that we wish to go down. We wish to retain regulation.
If we are going to keep regulation, there is absolutely no reason for dismembering the HFEA and putting functions that are plainly closely linked together and of utmost importance to parents, babies and sick people into different bodies, some of which are untried. Again, I echo my noble and learned friend Lady Butler-Sloss in saying, “If it ain’t broke, don’t fix it”.
Lord Mackay of Clashfern
My Lords, I declare an interest as an honorary fellow of the Royal College of Obstetricians and Gynaecologists and as the person who had the privilege of introducing to this House the Bill that ultimately became the Act which has been referred to more than once. As a parent of such a body, it would be strange if I wanted to see it dissolved altogether. On the other hand, a parent who is interested in his child is glad to see him or her develop and possibly make unions with others who seem to be suitable for them. I had the honour of serving on the Joint Committee looking at the recent Bill in this area under the distinguished chairmanship of the noble Lord, Lord Willis of Knaresborough. I strongly supported the decision taken by that committee to recommend against the proposed union between the Human Fertilisation and Embryology Authority and the Human Tissue Authority. I think I am right in saying that the noble Lord, Lord Willis, may have done a slight injustice to the noble Lord, Lord Warner, because I think the noble Lord, Lord Warner, said that he had recommended against it to the Minister. I do not know whether the Minister accepted it immediately, but eventually it was accepted by the corresponding Minister.
The matters that were the subject of the Bill which I had the privilege of introducing are certainly among the most important areas of modern scientific and medical work. But science and medicine have moved on very fast and far since that Bill was introduced and the developments dealt with in the most recent Act show that. That Act moves out of pure human embryology to the transition towards hybrids and, at the extreme end, towards the animal end of embryology. It shows that science has developed in such a way that the distinct field carved out in the original Bill has been altered by progress, if you like to think of it in that way, and I hope that that is what it is. There is a great deal to be said for the view that modern scientific and medical research is very difficult to split up. The embryo is important, but there are other important aspects of that research. I can therefore see a very strong argument for having a research body which has overall responsibility in this area.
There are of course other functions in HFEA which are important, particularly the control of IVF. When the body was originally set up, the practice of IVF was exceptional and a complete novelty, but a lot of water has gone under the bridge since then and it has become much more of a standard clinical procedure. It is true that developments have taken place there, but they have taken place also in other branches of medicine. It is not only embryology or IVF that have moved forward; fortunately, a great number of developments have taken place in the practice and application of medicine and surgery. It strikes me as extremely logical to have a body that would have overall responsibility for that.
If that be right, there is a good deal to be said for the view that the time has come to review the position in regard to the two health bodies that we are discussing and see whether a more integrated approach to research on the one hand and clinical practice on the other could be furthered by having bodies responsible for the whole of the first and the whole of the second. I agree that a good deal of detail needs to be filled in, but I remind myself that we are not deciding today whether this should happen. We are talking about a power for a Minister to decide what to do in the light of the further consultation provided for in the amendments moved by the Government since the Bill has been in Committee. It is a valuable opportunity for these matters to be considered. I can understand a lot of what has been said on the other side of this argument, but I should like to see retained in the Bill the power to deal with these issues in a way that reflects the developments that have taken place in the research and practice of medicine since the original Act came into force.
Lord Winston
My Lords, my noble friend Lord Warner has declared support for the Minister sitting on the Front Bench; I suspect that I might in the next few minutes give him even greater support.
We have to understand that research in these areas has now gone way beyond embryology. There was a time when people were very concerned about the status of the embryo, when embryo research was relatively novel. I should like to correct a remark made by the noble Lord, Lord Walton, who very kindly referred to work on pre-implantation diagnosis. That work produced pregnancies before the establishment of the Human Fertilisation and Embryology Authority, and people like me were greatly exercised to establish regulation. In spite of what has been said in this Chamber, we were very much in favour of regulation. Since there was no government regulation, we started a voluntary licensing authority which became a model in time—obviously, a very imperfect model—for the body set up under the splendid Bill introduced by the noble and learned Lord, Lord Mackay of Clashfern.
Stem cell biology covers every aspect of human disease, from cancer to brain research, from human consciousness to the replacement of organs and transplantation, and a whole range of other areas. It is really—forgive the pun—inconceivable that this could be dealt with by the Human Fertilisation and Embryology Authority properly under its present form or any future form. I would argue that with the advent of epigenetics, the recognition that now the environment in which cells are placed in culture and elsewhere is such a universal issue in medicine there has to be a much more global look at this kind of research. I feel that there is a strong case for suggesting that we have to accept that research ethics are universal and that they tend to have the same sorts of problems, whether it is patient consent, the end or beginning of life, or a whole range of other issues. In fact, the end and beginning of life have some very similar moral issues which need to be debated by ethics committees. The noble and learned Lord was right to point out that trying to look at these issues in a new form would be absolutely apposite. I for one am certainly not in favour of a free-for-all. I am not quite certain who in the medical profession is. I do not think that that is true.
The regulation of clinical treatment has been in many examples woefully inadequate. The noble and learned Baroness, Lady Butler-Sloss, pointed out that while she was sitting on the Bench she had the most terrible case of a woman who had the wrong embryo transferred. That was done, of course, under the auspices of the Human Fertilisation and Embryology Authority. No regulatory authority, no matter how perfect or how good, can regulate against every human error. We should have a set of principles in laboratories which keep those mistakes to a minimum, and the regulation of medical practice must also enforce that.
I do not think that there is any evidence from what has happened that the HFEA has done a particularly good job or a particularly bad job. In some areas it has not been very powerful. For example, many things are forbidden under regulation in this country. Patients actively seek fertility tourism in other countries where they can get, for example, donor eggs and perhaps come back pregnant. Very often clinics in this country, although it may be against regulations, refer these patients outside. Of course the HFEA, not unreasonably, is powerless to deal with that sort of problem.
It is also true that the fees charged to patients are often extremely exploitative. I have no doubt that we will come back to this when we come to the pending health Bill, because this is a much bigger issue in terms of how we finance the health service. At the moment, IVF, whether it is done in the private sector or in my view in the National Health Service, is charged on the basis not of what it costs but rather of what the market will bear. That is a very big issue which we will need to discuss, because I suspect that that may apply to a lot of medical practice. It is an issue to which I am sure this House will want to return. Costing the procedure is very important.
Someone mentioned follow-up: one sad thing about the opportunity in 1990 was that we did not—even though we had records of IVF pregnancies, and IVF successes and failures—make any attempt to follow up babies after this procedure for the long term. There have been many reasons why that was difficult, such as data protection. But this lost opportunity means that some of the procedures often in routine use may have unforeseen consequences in children when they are adults. We now know from David Barker’s work, for example, that babies who are born underweight and premature are much more likely at the age of 50 or 60, as the Minister knows, to suffer from heart disease, stroke, hypertension and possibly osteoporosis as well as diabetes and one or two other diseases as well. Of course, we may see more diseases which are likely to be epigenetic due to those early influences.
I have to say that, although it is claimed that the HFEA gives out information to patients, six years after I retired from clinical practice running a very large IVF service, I am bombarded daily with e-mails—I have had several today—from patients who want information about IVF and do not feel that they are getting the information they should from the statutory authority. That remains a problem.
The clinical regulation of non-evidence-based practices has been poor. For example, there is no evidence that the preimplantation and genetic screening of embryos designed “to improve pregnancy rate” works. Yet several clinics charge large fees for doing this under regulation even though there is not a base for justifying its use. That also applies to costly immune therapy, which is highly controversial. Again, this is used in women who sometimes fail to get pregnant, under licence from the HFEA. This is an example of how in fact regulation is really quite limited in clinical practice.
Lord Patel
Briefly, I find myself in support of what was said by the noble and learned Lord, Lord Mackay of Clashfern, and also by my friend in the professional sense, the noble Lord, Lord Winston. I was involved as an officer when the Royal College of Obstetricians and Gynaecologists, together with the Medical Research Council, set up the voluntary licensing authority because it was felt that there was a need to reassure the public that the new science of in vitro fertilisation was not going to lead, as the newspapers then had it, to creating monsters in a Petri dish. Fortunately, two years after that, the noble and learned Lord, Lord Mackay of Clashfern, led the Bill that became the Act that established the Human Fertilisation and Embryology Authority. For the reason already rehearsed, it was necessary to make sure that the public could be reassured. More importantly, it was set up to make sure that clinical practice followed strict rules about what should be good practice and about people engaged in in vitro fertilisation and fertility.
I was not a specialist in in vitro fertilisation, but as an obstetrician I saw the results of the initial practices of multiple pregnancies, to which the noble Lord, Lord Winston, just referred. Every obstetrician in the land was crying out that there should be some kind of advice or regulation from the HFEA that would control the number of embryos that were inserted. The evidence existed that putting more and more embryos in might result in more pregnancies but also in multiple births that resulted in handicapped babies.
We have two issues here. First was the responsibility of the HFEA in making sure that clinical practices were improved to improve the outcome for both the parents and the babies. Second is the regulation related to research practices, especially in embryo research. I have no doubt whatever that the research regulation aspect of the HFEA needs to be maintained.
I go further in saying that there is a great need to bring some co-ordination in the whole area of the medical research regulatory framework; it is very fragmented. In my previous role as a National Patient Safety Agency chairman, while I was responsible for running the National Research Ethics Service for England and Wales, I found that there were issues relating to ethics for some of the medical research that, because it was fragmented, we had to address, as it was not being addressed by any of the existing regulatory authorities. The report from the Academy of Medical Sciences gives us an opportunity, which I hope the Government will grasp soon, to produce a national medical research regulatory authority that brings in all the regulation that is required. As the noble Lord, Lord Warner, said, the report did not say that it should include the HFEA and the Human Tissue Authority. In his consultation, he also said that they were not addressing the issue of the HFEA and the HTA because they were awaiting the results of the debate that we are now having, and the Bill that we will have relating to National Health Service reform and social care.
I accept that we need a research regulatory authority. Now the issue is whether we need, particularly with the HFEA, to regulate clinical practice related to in vitro fertilisation. If NICE is going to have the new role of setting standards in all areas of clinical practice that will deliver better outcomes, and if we have a regulatory authority—the CQC, which may need to improve its performance and may need resources to be able to do so—we have to ask why we would have a regulation confined to one area, sensitive though it might be. Given the performance of the authority hitherto, we have to ask whether we are going to throw out something so precious; I accept that some of the aspects that the HFEA has been awarded are very precious. I accept that we were the first country in the world to bring about regulation for in vitro fertilisation, which others followed, because it was then necessary. It laid down the template of how clinical practice in a sensitive area such as in vitro fertilisation should be handled. However, as the noble and learned Lord, Lord Mackay of Clashfern, said, we have moved on. I think we might be at a stage where we need a more overarching regulation that promotes good clinical practices and therefore good clinical outcomes.
Baroness Deech
My Lords, on a factual point, may I correct the impression—it may have been a mistake— that the previous speakers have given that any number of embryos can be implanted in a patient? The HFEA brought down the number of embryos from three to two and is working towards one. That was in the face of relentless resistance from patients, who wanted the best chance of becoming pregnant, and indeed many—but not all—of the clinicians and embryologists, who said, “We know what’s best for our patients”. The impression should not be given that an unlimited number of embryos are implanted. The number is two and they are working towards one.
Lord Winston
Forgive me for correcting that impression. Many units limited the number of embryos well before the HFEA did. At Hammersmith Hospital, we limited the number of embryos two years before the HFEA did. We were not alone; a number of units did that because we were very concerned. The idea that medical practitioners do not feel responsible for the pregnancy that is induced is, I think, a dangerous precedent. It is just not true. Of course there is a problem when patients put you under pressure, and it is a very difficult ethical issue that needs to be resolved.
Lord Patel
My Lords, I think I have lost my thread, but I have said what I wanted to say.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)
My Lords, I begin by expressing my thanks to all noble Lords for the opportunity to debate these amendments. As the noble Baroness, Lady Thornton, pointed out at the beginning of her remarks, following the Government’s concession in withdrawing Schedule 7 in its entirety, these amendments would have the effect of putting the Human Tissue Authority and Human Fertilisation and Embryology Authority out of scope of the Bill.
Our starting point in approaching these issues is a clear objective to streamline the process of regulation and, consequently, reduce costs and the administrative burden on establishments while continuing to offer the necessary protection for the public. The Bill presents us with an opportunity to achieve that. Our aim is to streamline healthcare and medical research regulation and so reduce bureaucracy. That approach is supported by leading assisted reproduction clinicians and their professional bodies and by the Academy of Medical Sciences.
The scope for streamlining is clear. We estimate that around 80 per cent of the centres currently licensed by the HFEA are also either regulated by the Care Quality Commission or are in premises that the commission regulates. Some 60 per cent of the centres licensed by the HTA are similarly covered by the CQC. It therefore seems unsustainable to continue to have these regulatory systems running in parallel. The question posed by my noble friend Lord Newton of Braintree as to whether the CQC wants to take on this work can best be answered by reference to the regulatory activity that it already performs. In any event, as regards the pace at which we take this, we intend to develop arrangements for the transfer of functions in consultation with the CQC over the next few years, and no transfer of functions will take place until that process is complete. However, the Government recognise that there are number of noble Lords with concerns about the proposal to transfer the functions of these two bodies, and not for a minute would I wish to minimise the nature of those concerns.
Let me be clear—both the HFEA and the HTA are models of regulatory authority that were right for the times in which they were created and which have done an admirable job in meeting the demands placed on them. However, as my noble and learned friend Lord Mackay of Clashfern pointed out, times change, and most pertinently so has the way in which we regulate the delivery of healthcare. With the establishment of the CQC along with the possibility—and I put it no stronger than that at the moment—of the creation of a new regulatory body for medical research, alternative structures are becoming available to ensure a more joined-up system. This provides, as I have said, the opportunity to streamline the process of regulation and reduce costs.
The powers in Clause 5 would allow us to achieve that without disturbing the underlying legislation, which captures the ethical safeguards that Parliament has so carefully set in place. Any future proposals to abolish these two bodies will be provided for in future primary legislation. I am happy to reiterate my assurance that there is no intention to revisit the provisions in either the Human Tissue Act or the Human Fertilisation and Embryology Act that provide the important ethical safeguards necessary to maintain public confidence in these sensitive areas. I would say to my noble friend Lord Willis and to the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, that means that future arrangements to regulate tissue and embryos must adhere strictly to the provisions of the two relevant Acts.
Noble Lords have raised particular concerns about the need to preserve the expertise these bodies have built up in the ethically sensitive subjects they deal with and the need to preserve the confidence of both professionals and the public in the way that these regulatory functions are carried out. The Government recognise the genuine nature of these concerns and we are determined that changes will not be at the expense of regulatory rigour or expertise.
I say to my noble friend Lord Willis that expertise will not be lost. It is envisaged that expertise will follow functions; for instance, through staff transfers and expert reference groups. Noble Lords have questioned the capacity of the CQC to assume these responsibilities. It will be given the capacity and the resources to carry out any widened functions. The CQC already has a proven track record of taking on the oversight of a specialist area. It took on the Mental Health Act Commission functions and I believe has successfully maintained oversight and focus on that area.
The noble Baroness, Lady Thornton, expressed concern that our whole approach in this area seemed unnecessarily complex. The powers that we are debating today will enable us to transfer some of the functions of the HFEA and HTA to other bodies but they do not enable us to do everything that we have set out in the ALB review. In order to abolish the HFEA and HTA or to transfer their research-related functions to any new research agency we will require powers under future primary legislation.
It may help if I try to provide a rough outline as to how and when we expect things to happen. We intend publically to consult on proposals to transfer all of the HFEA and HTA functions to other bodies in the late summer of 2011. Then during 2012-13 we would prepare draft orders for formal consultation under the provisions of this Bill dealing with the transfer of functions other than research functions. If appropriate we would then be able to lay the orders before Parliament. The process would enable noble Lords and other interested parties to see, comment on and debate the proposals as they progress. In order to avoid the piecemeal transfer of functions we would intend to ensure that the timetables for necessary future primary legislation and the commencement date of orders made under this Bill are aligned so that they come into force at the same time.
Without the inclusion of these bodies in Schedule 5 to the Public Bodies Bill we would have to provide for the transfer of their functions entirely within future primary legislation and this would significantly increase the risk that the underlying ethical provisions of the Human Fertilisation and Embryology Act and the Human Tissue Act could be reopened for debate and would afford less time for consideration and comment than the progressive approach which I have just outlined. I seek to impress upon noble Lords that that is a very powerful reason for wishing to grant the Government the powers we are seeking as regards these two bodies.
The noble Lord, Lord Warner, indicated that, in his view, the report by the Academy of Medical Sciences does not give sufficient backing to the idea that embryo research should be covered by the new research regulator. I would simply point him, if I may, towards paragraph 9.5.1 of the report which explicitly refers to the new body, if it is set up, having responsibility,
“for ‘specialist’ approvals and licences within the HRA around data, tissue and embryos, gene therapy and exposure to radiation”.
I think, as I read that, it was very much in the minds of the authors of the report that the research functions of the HFEA should be brought within the scope of a health research regulatory agency.
The noble and learned Baroness, Lady Butler-Sloss, expressed her worries about the information functions of the HFEA and the absence of a clear plan by the Government for what should happen to those functions. She is right, we have not fully made up our minds about where those functions should best sit, but that is one of the main reasons why we wish to consult on this. We need to ask the public and interested parties where these functions should sit, and there will be an impact assessment with the consultation.
My noble friend Lord Willis asked about the possibility of setting up a single research agency without primary legislation. He is technically right; we could do that. I should emphasise that we have not decided whether to accept the AMS recommendation to establish a single research agency—we think that there are merits in the proposal and we will be making an announcement shortly—but if we were to propose setting up such an agency we could do so initially by creating a special health authority. However, we could not legally transfer the research-related functions of either the HTA or the HFEA to that body. We could not make a transfer of functions to a special health authority without amending the 2006 Act.
The case was simply put by my noble and learned friend Lord Mackay of Clashfern. Essentially, we are asking the Committee to agree to grant the Government permission to consult on these matters. I hope that the noble Baroness will not seek to press her amendment today but instead will consider that a good purpose will be served by reflecting on the comments that I have made in response. In view of our concessions—
Lord Warner
I am sorry to interrupt the Minister. I have been listening intently to what he has said. I am extremely confused about the order in which things are going to be done. As I understood what he was saying, we are going to get a series of orders that transfer functions through a process of consultation, which I welcome, but we may or may not know at that point what the Government are going to do about setting up a health research agency, either by statute or otherwise. As I understood him, we could be in the position of being asked to agree those orders before we know what the final endgame is. It would be helpful if, before the next stage of the Bill, the Minister could set this out more clearly for us in writing so that we can understand the sequence. I found it rather difficult to understand.
Earl Howe
I must apologise to the Committee if I was not sufficiently clear and I will be happy to write to those who have participated in this debate to make the position clearer. I was seeking to say that we do not wish to take a disjointed, piecemeal approach. There is a natural flow of process that, if Parliament agrees, can lead us to a position where we are able in one move, so to speak, to transfer the various functions more or less simultaneously—although I would not wish to undertake that the whole thing would be done on the same day—so as to arrive at that point.
In our view it is desirable to consult during the late summer of this year. We will then set about the process of designing statutory instruments based on that consultation and go out to consultation on them. All being well, we will then introduce a second-Session health Bill that will have within it the provisions to establish a single research regulator, assuming that that is what we decide to do. Therefore, the whole process should work in a seamless way. However, I shall be very happy to write to noble Lords setting that out.
I return to the point at which I left off, which is to express the hope that the noble Baroness will not press her amendment this evening. I hope that she will accept our assurance that we have a clear intention to consult on the proposed transfers of functions and that she will be willing to withdraw the amendment.
Baroness Thornton
My Lords, I thank everybody who has contributed to this debate. I knew that it would be an interesting debate and a long one. I have been told by my noble friend that I have to be brief, as the Committee still has a lot of things to get through and the rest of us can go home when we have finished this. As I say, I thank all those who have taken part in this debate. The remarks of the noble and learned Baroness, Lady Butler-Sloss, were forensic and, as usual, very helpful. The noble Lord, Lord Walton of Detchant, spoke with great wisdom and knowledge about both the HFEA and the HTA. The noble Lord, Lord Newton, spoke wisely about the CQC. Having been one of the architects of the CQC in the previous Government, I wish to put on record that I very much admire the work that it does. However, it is being asked to do a great deal more, which worries me.
I am pleased that the noble Baroness, Lady Deech, continues to support us as we work towards resolving this matter. The noble and learned Lord, Lord Mackay of Clashfern, my noble friend Lord Winston and the noble Lord, Lord Patel—a trio of very distinguished professionals in their respective ways—said that, although progress has been made, the most important thing is to make more progress. I am not a scientist but in a way the scientists and the experts got us into trouble on both these issues and that led to the creation of the HFEA and the HTA, as imperfect as they might be. Those bodies were established to tackle the need to regulate and to restore public confidence. That is where we came in, as it were. It seems to me that challenges and problems still exist in terms of public confidence, to which I will return in a moment.
I accept that if we need to move to a more overarching medical research body, we need to go through a proper process. I am not convinced that the powers granted to the Government in this Bill are the way to do that or that what looks like a rather complex and very piecemeal process is the right way forward. However, I am grateful to the Minister for explaining this in great detail.
I am worried. A floating ethical framework sprang into my mind because I could not see where the ethical framework of what is being proposed will sit. If we cannot see where it will sit, what hope is there for the public? It seems to me that that is where the Government need to start. It is not a question of having a mechanical process and saying, “We will put this bit here and that bit somewhere else and have a regulation that will make sure that the research goes somewhere else”, because if we cannot understand where the ethics sit we are in very serious trouble.
The Minister has given us a great deal to think about and I am grateful to him for his detailed answer. I will read the record and I look forward to receiving his letter. We will need to think about what he had to say and discuss it further before Report. I will not press the amendment now, so I beg leave to withdraw it.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Hunt of Kings Heath
Lord Hunt of Kings Heath
My Lords, I will move the amendment in the name of my noble friend Lord Whitty. Passenger Focus plays an important role in protecting the interests of Britain’s rail passengers, England’s bus passengers outside London, coach passengers on scheduled domestic services and tram passengers. It is important that this function is not undermined and it is not appropriate that Passenger Focus is included in the Bill. I am very happy that the noble Lord, Lord Taylor, is joining me in support of this important amendment. I beg to move.
Lord Whitty
My Lords, my noble friend did not realise that I had arrived from the airport to move the amendment. I, too, am grateful to the Minister and I congratulate him. This is the first time that a Minister in this Government has added their name to an amendment of mine on any piece of legislation. What I am about to say should not undermine my gratitude. However, I have to ask two questions.
First, where does this leave Passenger Focus, because it achieved the distinction of appearing under three different schedules to the Bill and it remains in Schedule 3, which we agreed at an earlier stage? The piece of paper given to us for our debate on Monday, had we reached the amendment then, indicated that a much reduced role is envisaged for Passenger Focus. The document states that it would concentrate on its,
“core role of protecting consumers”,
that there was “scope for significant savings”, and that the body would be working under a “significantly reduced budget”. The reference to the core role is slightly sinister, because it implies that the organisation will focus on the complaints function and therefore act in processing and improving that function, but that it will not be allowed to be more critical of the train or bus companies and, more particularly, the department’s overall transport policy as regards the rail or bus network. If that is the intention, it will neuter Passenger Focus considerably. I should like the noble Earl, Lord Attlee, who I assume will reply, to provide reassurance on that front.
My second question is on a wider front. The various existing consumer bodies are being dealt with differentially under this legislation. Some are to be abolished, some are to be merged, some are to have their functions transferred and some, given the abolition of Schedule 7, will be retained—presumably in their present form. Passenger Focus will be retained in a modified form. The Government’s original intent, for which I had some regard, was to rationalise the whole structure of consumer representation. Instead of that, the danger is that they will leave a bigger hotchpotch than the aggregate of previous legislation on consumer matters and weaken the statutory base of a number of consumer bodies.
As the Committee knows, I have an interest as a past chair of Consumer Focus. On the one hand, it appears that that body will be abolished, while on the other hand the Government say that they will transfer the functions to Citizens Advice. It was BIS’s original view that other bodies, including Passenger Focus and the Consumer Council for Water, should also be transferred to Citizens Advice. Whether or not that was a good idea, at least it was coherent. It seems now that we will end up on the consumer front with greater incoherence than the Government inherited and were determined to do something about. Not only is regulation likely to be more incoherent, but it is also likely to be substantially weaker, with fewer resources. Therefore, although I very much appreciate the Government’s support for the amendment, I have serious misgivings about their specific and general intentions as regards consumer protection.
Lord Bradshaw
My Lords, I support what the noble Lord, Lord Whitty, said. There is certainly scope for economy. I did not agree with the previous Government’s decision to transfer protection of bus and coach passengers to the Rail Passengers’ Council. However, the work of the council is concentrated mainly on issues such as punctuality. It has produced extremely good reports on things that irritate users such as huge queues at booking offices and the way in which ticket machines baffle many users and often do not work. These issues are important to people and I cannot think who will regulate them for less money. Transferring the functions to the Office of Rail Regulation, which is full of lawyers, will raise the cost of doing this work.
I will say one further thing in defence of Passenger Focus. It has developed a system of statistical analysis by which it can take very little in the way of raw information and turn it into statistically robust results. I am all in favour of economy, but I am also in favour of having a body to look after the interests of passengers that is functional and that rests on a secure base. I and most passengers would regret anything that abolished this body.
Earl Attlee
My Lords, I was surprised when the noble Lord, Lord Whitty, did not move his amendment, so it is a great pleasure for me to respond to him. He and I have debated together over many years. He has accepted some of my amendments and taken others away. It is a great pleasure to continue our debate, albeit with our roles reversed.
The noble Lord’s amendment seeks to remove Passenger Focus from Schedule 5 to the Bill. The appearance in the Bill of Passenger Focus does not reflect the view that the interests of passengers are unimportant. We are clear that passengers are the only reason why we run a public transport system. This was reflected in the public bodies review, which concluded that Passenger Focus should be retained but substantially reformed to focus on the core role of protecting passengers, thereby allowing a reduction in the cost to the taxpayer.
Noble Lords may see this as a first step towards cutting the budget of Passenger Focus to the point where it is no longer capable of being an effective voice for passengers. I reassure them that this is not the case. We fully accept the need for a powerful and effective passenger advocate. This is reinforced by EU provisions that require us to have a properly independent complaints body to which rail passengers can turn. Passenger Focus plays that role.
The noble Lord, Lord Whitty, asked whether this was not simply an opportunity to weaken and abolish a body that has been critical of the Government in the past. The answer is no. We want to maintain an effective passenger advocate because that is the best way of ensuring that transport operators are held properly to account. This is an effective opportunity to ensure that that role is performed in a robust and cost-effective way.
The Government had originally listed Passenger Focus in Schedule 5 to enable possible changes to its functions. Further work and our discussions with Passenger Focus have clarified that we can significantly reduce the cost to the taxpayer without recourse to legislative change through Schedule 5. For example, efficiencies can be derived by reducing the scope of Passenger Focus’s research and survey work. My noble friend Lord Taylor has added his name to Amendment 98 on that basis to support the removal of Passenger Focus from Schedule 5, which we hope will be welcomed by the Committee. However, the governance changes that we intend require its inclusion in Schedule 3, so we cannot support Amendment 75, which the noble Lord, Lord Whitty, was unable to move on Monday. Amendment 160A, which would remove Passenger Focus from Schedule 7, is effectively redundant in the light of the Government’s decision to remove Schedule 7 from the Bill.
I hope that I have been able to reassure the Committee and the noble Lord that we are not planning to leave passengers without proper protection and I hope that the Committee will accept Amendment 98.
Lord Whitty
I am not sure that it is in order for me to reply, given that my noble friend moved the amendment. However, I am grateful for some of those reassurances about the future of Passenger Focus. It would be helpful if we could be told the nature of the changes in governance that the Government propose, but perhaps that is for another day. However, I think that the body’s removal from this schedule is important. The noble Earl was probably not in a position to reply to my other points, which concerned the broader landscape of consumer representation.
Earl Attlee
The noble Lord asked what reforms we plan under Schedule 3. That schedule can be used to implement changes to the make-up and composition of the Passenger Focus board. Although the details are still to be finalised, the intention is to streamline the board’s operation significantly, which will also result in significant cost reductions.
Lord Whitty
I thank the noble Earl. Of course, some of the make-up of the board reflects the structure of the railway industry and the structure of the company. I hope that we will not lose that geographical dimension in changing its composition. I accept what the noble Earl says in relation to Passenger Focus. Clearly, I am grateful for his support for the amendment, although I think that we will have to return to the wider issue of the consumer landscape as a whole either in this Bill or in some other context in this House.
Lord Taylor of Holbeach
“NOTE
1 Section 21(2)(a) does not apply to an order under section 5 which provides for—
(a) functions of the British Waterways Board falling within section 21(3)(b) to (e) to be transferred to another person;(b) functions of the Environment Agency falling within section 21(3)(b) to (e) to be transferred to a person to whom functions of the British Waterways Board are transferred by virtue of paragraph (a).”
Lord Hunt of Kings Heath
Lord Taylor of Holbeach
Lord Whitty
“( ) In relation to a transfer of functions, duties or powers under section 1 or 5, or to mergers under section 2, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I.2006/246) apply to a transfer which relates to rights or liabilities under a contract of employment whether or not the transfer would, apart from this subsection, be a relevant transfer for the purposes of those regulations.
( ) In the case of an employee of any body whose functions, duties or powers are transferred or merged under section 1, 2 or 5—
(a) a period of employment with the transferor is to be treated as a period of employment with the recipient organisation;(b) the transfer to the recipient organisation is not to be treated as a break in service.”
Lord Whitty
In this amendment, I move away from the detailed consideration of individual bodies and their future to a more general principle. This relates to what happens to the staff of those bodies whose functions are transferred or merged. There is a clear-cut situation where, if bodies are abolished, although some of the bodies are Schedule 1, there has also been commitment by the Government to transfer the functions, duties or powers elsewhere and, therefore, the question of what happens to the staff who are carrying out those functions under the current arrangements does arise.
This amendment would make it clear that, in normal circumstances, the TUPE arrangements would apply as they would apply to mergers in both the private and the public sector, and across the private and the public sector where functions and duties are transferred. Under normal procedure concerning people’s entitlement to terms and conditions, including redundancy terms, pensions and other aspects of their employment, if the functions are moved into a receiving body, it would be for that receiving body to maintain both the continuity of service and the terms and conditions unless and until, either by collective agreement or by individual contract agreement, those terms are changed.
Because of the complexity of the bodies involved and the contractual terms which appear and have grown up in many of these bodies over time, it may not be all that clear, even to eminent employment lawyers, whether a TUPE applies or not. Even in the more simple past, when we were only dealing with one or two mergers of bodies or transfers of functions, it sometimes was not at all clear. The form of words here is almost exactly that which was included in the legislation in 2006 which set up the present Consumer Focus body—the National Consumer Council in legal terms—when we had the merger of the old National Consumer Council, Energywatch and Postwatch. The terms and conditions were preserved, albeit in some situations it was not entirely clear whether TUPE would apply or not.
In 2006 the regulations on TUPE came in. When Consumer Focus was created they were quite new, but similar forms of words have appeared in other legislation where there has been a merger or transfer of functions from one state body—NDPB or equivalent—to another. This Bill has a wholesale raft of such transfers. It does not have quite as many as it started out with but there are still quite a few left, and a few where it is not quite clear whether the transfer is occurring or not, and whether it is a function which normally comes under the TUPE regulations.
This amendment would make it clear, however, that if the function transfers or the duty and power transfers, the staff would go with them unless and until the receiving body decided it might wish to dispense with their services as the new employer. It is not up to the previous employer to declare them redundant until such a rationalisation has taken place by the receiving employer, which can happen more or less instantaneously in certain circumstances. The important point is that up until that point, the terms and conditions of the staff employed under the pre-existing bodies would be preserved.
This important point relates to quite a lot of staff, and there is quite a lot of uncertainty among the trade unions and staff bodies representing them. We need clarity on this and if the Government are unable to accept this form of words then, clearly, I am happy to discuss it with them. The principle needs to be established for all the bodies which remain within this Bill. I beg to move.
Lord Hunt of Kings Heath
My Lords, I would very much like to support my noble friend on this. It is timely to remember that thousands of people who work for the public bodies listed in this Bill are likely to be affected by its provisions. Many will lose their livelihoods; some will find their careers seriously damaged; some, as my noble friend Lord Whitty has said, will find themselves transferred to other employers. It is important that we recognise and acknowledge that those people have given dedicated service, in some cases for many years. Where they are transferring to another body, we must make the transition process as smooth as possible. That is clearly the intent behind my noble friend's amendment. It would ensure that, where a person is transferred to another body, TUPE will apply, with the implications and protections as described by my noble friend. I hope that the Minister will be able to provide the necessary assurances on that. The Government also need to take on board the point that my noble friend made about the complexity of the issue and the need for clarity, which is why his amendment deserves serious consideration.
Lord Taylor of Holbeach
I, too, am grateful to the noble Lord, Lord Whitty, for tabling the amendment, because it raises an important aspect of the reforms and allows the Committee to consider the impact of the Government's reform programme on the staff of the bodies affected. I take this opportunity to pay tribute to the work of the thousands of hard-working staff of public bodies across the country. Specifically, I put on record that our proposed reforms to public bodies are no reflection on the work of the staff.
I assure the Committee that the Government are working with the chairs and chief executives of public bodies and trade union representatives to ensure that necessary change is carried out as smoothly and fairly as possible. As the noble Lord said, that must be an important aspect of this operation. The Government have been diligent in acknowledging the needs of staff during the public bodies review programme, and we will continue to be so—for example, by exploring opportunities for redeployment where possible.
The Cabinet Office has been working closely with other departments since 2010 to ensure that the needs of staff are fully factored into the public bodies programme of work, particularly on the need to provide staff with clarity following reform decisions and the milestones along the route. The Cabinet Secretary has sent a message to departments on that very point. The Cabinet Office has also provided a checklist of considerations for departments which takes the needs of staff and stakeholders into account.
Those arrangements reflect a flexible approach that ensures that government departments can respond in the context of individual changes—based, of course, on the proper protections that are already enshrined in UK employment law. That is the right approach to support our public bodies’ staff. It also reflects the Cabinet Office statement of practice on staff transfers in the public sector. The guiding principles, as set out in the document state:
“The Government is committed to ensuring that the public sector is a good employer and a model contractor and client”.
The principles recognise that the:
“involvement, commitment and motivation of staff are vital for achieving smooth and seamless transition during such organisational change”.
On the specifics of the amendment, I should like to inform the Committee why the Government believe that the blanket application of TUPE is not appropriate. TUPE, and the European law which underpins it, was designed to protect staff where the business for which they worked, or the services to which they were assigned, would be carried out by a different organisation. Staff retain their jobs and conditions, and the new employer steps into the shoes of the old one. The definition of relevant transfer under TUPE is broad and will cover most transfer situations.
However, Clause 23 already provides the mechanism for equivalent protection to be confirmed in non-TUPE situations where that is appropriate. That is underpinned by the Cabinet Office statement of practice on staff transfers, to which I have already referred, which provides that the TUPE principles should generally be followed through a transfer scheme which addresses the imperatives of the particular transfer.
The blanket application of TUPE to all transfers conducted pursuant to this Bill seems likely to lead to inefficiencies and unintended consequences. For example, there may be circumstances where a body following an order made under this Bill is carrying out functions which have significantly altered and which require different skills and resources, with the result that there is no relevant transfer for TUPE purposes. If TUPE were nevertheless to be applied, staff would be transferred to the new body by operation of law, only to be potentially made redundant by the transferee. This would involve extra work and unnecessary expense and delay with no benefit to anyone, increasing uncertainty for staff and possibly disruptive relocation.
I appreciate the concern of the noble Lord, Lord Whitty, and I can assure him that the Government will continue to have a positive approach to TUPE regulations where they properly apply, and seek to make appropriate provision where this is not the case. I hope that, in the light of the assurances I have given, he will feel free to withdraw his amendment.
Lord Whitty
My Lords, I appreciate much of what the Minister has said about the approach of the Cabinet Office advice and what is going on in anticipation of various changes. Of course, we are not at a point, in most cases, where the exact format of the change is clear because we have to go through a period of consultation in association with the secondary legislation. However, I am slightly disappointed that he is not prepared to accept this amendment, because I had seen Clause 23(5), which referred to this, and my amendment was intended to be a rather clearer exposition of that principle and is the formulation that has been used on past occasions. It is true that people will find themselves employed by a new body and that there could be a redundancy very rapidly, but that has been the situation in both the private and the public sector, and is what is laid down in the TUPE regulations for a lot of situations and has happened in past public sector mergers.
The difficulty for me being able to be sufficiently reassured by the Minister’s words and by Clause 23(5)(f) is the question why, if on previous occasions, legislation has provided for a pretty unambiguous form of wording that I have outlined in this amendment, we could not use a similar form of words in here. I think that would be greater reassurance to the staff and trade unions that are having to deal with potential changes of employer. I do, however, accept the good intentions of the Government, and the Minister in particular, and will not press this amendment. I will consider his words carefully to see whether I need to bring it back at a later stage. I beg leave to withdraw the amendment.
Lord Newton of Braintree
“( ) fairness, openness, transparency and justice;”
Lord Newton of Braintree
I wish to move this amendment briefly. I have ended up a bit confused on one point. Until the latest selection of amendments, my little amendment was sailing on its own and I might have regarded it as a sort of beacon of light—a light ship. Somehow, in the course of the past couple of days, it has acquired nine barnacles, and I am not quite sure whether they are benign barnacles or hostile barnacles. I have not studied them sufficiently to know whether I have a view on all of them. I think I am agnostic about some, hostile to some, and supportive of others, but I will sort that out when I have heard what noble Lords have to say.
What I do know is that since there are those who appear to think that I have been a bit troublesome on this Bill, I want to make the point that this is the first amendment I have actually moved, so all the trouble has been made by other noble Lords. My amendment is entirely benign. The only thing I have done that is unkind is to write my notes on the back of an envelope to match the Bill, but perhaps that was unkind. My speech will be short. I trailed it on Monday when something similar cropped up in a speech made by the noble Baroness, Lady Hayter. I gave my main thinking at col. 1409 of the Official Report.
The background is that I looked at Clause 8 and wondered what it is that Ministers have to take into account in making orders under these sections—efficiency, effectiveness, economy and securing appropriate accountability. I indicated on Monday that the accountability argument is pretty fair nonsense. Ministers are accountable for all this, so the issue is about how that accountability is exercised. Leaving that aside, all the other criteria strike me as utilitarian. I would claim as a mere humble former practising Member of Parliament to be interested in values. All I have done is put down an amendment that says they have also got to take account of,
“fairness, openness, transparency and justice”.
That is pretty close to asking the Government to accept motherhood, and if they doubt it, let me say that during some train travelling today—I should say that I used four trains, three of which were at least 15 minutes late—I had plenty of idle moments. What I do in my idle moments is study the document that I carry close to my heart. It is the coalition’s programme for Government. I am a faithful supporter. Its subtitle is, “Freedom, Fairness, Responsibility”. The foreword on pages 7 and 8 was written by my right honourable friends the Prime Minister and the Deputy Prime Minister. It says that,
“we will ensure that fairness is at the heart of those decisions … we will extend transparency to every area of public life”.
In respect of consumer protection the document states:
“We need to promote more responsible corporate and consumer behaviour through greater transparency”.
I think that that should apply to the Government as well. The document goes on to make reference to,
“changes to our political system to make it far more transparent and accountable”.
The only thing I cannot find a reference to is openness.
If Ministers do not like all these words or if the draftsmen say that they are not the sort of thing you put in Bills, I can live with that, but I do think that something along these lines ought to be incorporated. On the basis of the evidence I have just quoted, I claim to be the true believer, and if the Minister resists me, I think that he declares himself a heretic, so I look forward to hearing what he has to say. I beg to move.
Lord Maclennan of Rogart
My Lords, I rise simply to make it clear to the House that, at this hour of the night, my noble friend is not alone. His concern for promoting values in this Bill has been manifest from the beginning, and he enjoys considerable support from his coalition colleagues.
Lord Goodhart
My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.
It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.
That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.
Lord Hunt of Kings Heath
My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.
In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies—it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.
We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.
Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the Minister’s Amendment 114 seeks to ensure that the public would always be consulted if the Minister proposed to make an order under Clauses 1 to 6. I accept that the Minister’s amendment is welcome and extensive. I also accept that in new subsection (1)(g) of the proposed new clause the Minister is given power to consult the public, since it states,
“such other persons as the Minister considers appropriate”.
That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.
I also believe—this relates to my Amendments 118A and 118B—that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord’s amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government’s proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,
“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the ‘veto’)”.
The committee reminds us that, under the 2006 Act,
“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.
The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.
I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him—it would be interesting to have further discussions between now and Report—is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.
My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord’s amendment to make it clear to an individual organisation that, unless a Government deal with a matter within a certain time, it falls. However, there is a case for the Government being able to undertake a regular review. It might be that we should keep the provisions of this Bill but limit the time under which an individual organisation can be covered by it.
Lord Goodhart
I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.
My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment—Amendment 126—to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?
Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:
“If the draft of an instrument containing an order under this Act … would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument”.
Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.
Lord Newton of Braintree
Perhaps I may just indicate briefly that, although I said slightly flippantly that I had not had a chance to look at all the other amendments, I had a glance through them. I had some of the same reservations about the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt of Kings Heath, has just adumbrated. The two that I found myself most drawn to were that you cannot have an omnibus order but must deal with things one by one, which seems well worth considering, and this business about hybridity. If there was manifestly something that picked out an individual interest and treated it differently from other interests—if I might do my non-lawyer’s translation of the hybridity problem—that would be a real question to be considered in certain circumstances. I hope that my noble friend will at least be able to reflect on these points.
Lord Mackay of Clashfern
On the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt, said, there is a question of a chilling factor in relation to bodies or organisations once they are named in a Bill. There is something to be said for having a closure in respect of bodies named now but also, if we get the Bill through in a satisfactory way, for it being a model for future reviews of these public bodies. One difficulty has been to provide a definition of what is meant by a public body. If the Bill passes into law as a sound piece of review legislation then, after, for example, the end of this Parliament and the beginning of the next one, there is a good deal to be said for the next Government coming forward with a list of bodies that would be suggested as amendments to this Bill, which would then possibly be subject to review under the powers that we have stipulated in the Bill.
Lord Taylor of Holbeach
I do not suppose that the Committee would have chosen to debate this important group of amendments at this time of night. I do not really want to rush but I am mindful of the time. It is interesting that the amendments contain the workplace of me and the Bill team. This is certainly an area in which we are and have been much engaged. I hope that all noble Lords will understand that it is rarely possible to deliver everything. There are some areas where the Government have to draw a line but there are others—I think that I can indicate these in the debate this evening—where further consideration is justified and where I would hope to come back with amendments before Report, after discussions with noble Lords. I say that by way of preface.
The whole group of amendments relates to the procedures that Ministers must follow. These issues have had substantial discussion in Committee. I thank noble Lords across the Committee for their contributions. As I seek to respond to each amendment, I ask noble Lords to contextualise the debate against the changes that we have already announced in the Bill, notably the removal of Schedule 7 and our ongoing commitment to work with noble Lords on a variety of related issues.
I begin with Amendment 106A in the name of my noble friend Lord Newton of Braintree. This amendment would add the objectives of,
“fairness, openness, transparency and justice”,
to the list to which the Minister must have regard when considering making an order under Sections 1 to 6. I thank him for his amendment and reassure the Committee that these objectives underpin the Government’s rationale for reforming public bodies and, of course, the Government’s programme as a whole. It is good that my noble friend carries the coalition agreement in his inside pocket, close to his heart. I am reassured by that and always value his contributions, even when they are not necessarily supportive of everything that I am seeking to do with this Bill. The only points where I fear we disagree concern whether this amendment would work in practice and whether such wording is necessary on the face of the Bill. The Government believe that such a requirement in legislative terms would be ambiguous and could, as drafted, be quite difficult to measure or assess. However, it is an area in Clause 8 that we have committed to look at.
Amendment 114A returns us to the question of consultation, which was originally debated on our first day in Committee on this Bill. It would amend government Amendment 114 by introducing a specific requirement to consult the public before laying an order using the main powers in the Bill. The Government have accepted the principle that Ministers should be required to consult on their proposals to reform public bodies before using these powers. The Government also accept that in some cases it is completely appropriate to consult the public in relation to such proposals. For example, I can confirm to the Committee that the Department for Business, Innovation and Skills intends to consult this year on its proposed changes to competition bodies. We discussed that earlier this evening. It will be a public consultation. The Government Equalities Office will soon publish its consultation document on reform of the Equality and Human Rights Commission. Later this year, Defra will issue a public consultation on its plans to replace British Waterways with a charitable body.
However, I take issue with the amendment in the name of the noble Lord, Lord Hunt, as it would apply without due regard to proportionality to any proposed reform. Such an approach runs contrary not only to the policy of this Government but also to the existing code of practice on consultation, which was issued in June 2008 by the Government of whom the noble Lord, Lord Hunt, was a part. The introduction to the code of practice is clear:
“Ministers retain their existing discretion not to conduct formal consultation exercises under the terms of the Code. At times, a formal, written, public consultation will not be the most effective or proportionate way of seeking input from interested parties”.
I do not quote from this document to seek to absolve Ministers of responsibility. Subsection (1)(b) in Amendment 114 specifically requires a Minister to consult persons whom he or she considers,
“to be representative of interests substantially affected by the proposal”.
This provision clearly could include the public. The Minister must therefore expect to be held accountable for his or her decisions in relation to this provision. However, the proper requirement that Ministers should consider whether to consult the public does not lead to the conclusion that it will prove necessary or proportionate in all cases. For example, is it proportionate to require a full public consultation on the statutory abolition of Food From Britain, a body that, to all intents, has been defunct since 2009, or on the proposal to use Schedule 2 to merge the Pensions Ombudsman with the ombudsman for the board of the Pension Protection Fund? These two bodies already share services to a great extent and those functions will not change.
As with other cases in the Bill where the public will rightfully expect to be consulted, undoubtedly they will, but the Bill as drafted allows for that possibility and the Government accept their responsibility to ensure that that occurs when necessary. By contrast, the amendment proposed by the noble Lord, Lord Hunt, will remove the ability of Ministers to conduct a more targeted consultation when that is appropriate. While I have sympathy with the sentiment behind Amendment 114A, the Government do not believe that the public will welcome a proposal that would add unnecessary bureaucracy to the order-making process and with it, in effect, the process of reform.
The question of proportionality is also pertinent to Amendments 118A and 118B in the name of the noble Lord, Lord Hunt, which concern the parliamentary procedure that should apply to orders made under this Bill. In responding to these amendments, I should clarify for your Lordships’ House that we have substituted government Amendment 118 with a new version that makes it explicit that the enhanced procedure can be activated by a recommendation of a committee of either House. This clarification responds to paragraph 24(a) of the sixth report of the Delegated Powers Committee—that is, the committee’s second report on this Bill. I am happy to clarify the Government’s intentions in response.
Amendment 118A seeks to make it explicit that a Minister wishing to make an order following a period of consultation must lay before Parliament a draft order and explanatory document. I agree with the spirit of the noble Lord’s amendment, but I do not consider it necessary. While the current drafting of subsection (1) in government Amendment 118 states that a Minister,
“may lay … a draft order, and … an explanatory document”,
it would in practice not be possible to make an order without following this procedure. Our current drafting simply reflects the fact that, following a period of consultation under Amendment 114, the Minister is not obliged to proceed with the proposal.
Amendment 118B would introduce a wholly new parliamentary procedure for these orders, giving a committee of either House the opportunity not only to reject but also to amend an order, or to recommend that the proposals be taken forward only through primary legislation. As I argued when we debated this issue on the first day in Committee, the Government cannot support that proposal for a number of reasons. First, I maintain my position that the noble Lord’s amendment goes beyond the scope of the Bill in seeking to effect a fundamental shift in how this House deals with secondary legislation. Secondly, I do not accept that the powers of the Bill, especially in the light of the removal of Schedule 7 and the additional safeguards that the Government are now proposing, justify the use of such a restrictive parliamentary procedure. It is now the case that no body can be subject to the powers of the Bill unless Parliament has consented through primary legislation to its inclusion in the Bill’s schedules. The waiting room of Schedule 7 has gone. Therefore, the scope of the powers in this Bill has been significantly narrowed. On this basis, to continue to suggest that the Bill requires a more restrictive scrutiny procedure than, for example, the Legislative and Regulatory Reform Act appears a disproportionate response, particularly in the light of the additional safeguards that we have introduced and continued to work towards and the fact that the proposed procedure would apply to each and every order made under this Bill.
I do not intend to quote a list of examples of such reforms. Suffice it to say that I do not consider that the opposition amendment represents a proportionate procedure for an order to abolish a body that is already defunct. Our approach, by contrast, gives Parliament the flexibility to select and enhance procedure while maintaining for the Government the reasonable ability to act to implement their programme. It is for this reason that I cannot accept Amendment 118B or Amendment 117.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Lord for giving way. I will not detain the Committee very long. I want to make two points. First, presumably in the case of defunct bodies, the Select Committee appointed by the House could deal with this matter in very short order. The Merits Committee, for instance, deals with a huge number of statutory instruments every week. It will list a huge number to which it does not draw the special attention of the House and it focuses on the orders it considers to be most important. Secondly, the noble Lord has been pretty forthright in rejecting my amendment. Between now and Report will the Government at least give careful consideration to the report of the Delegated Powers and Regulatory Reform Committee? It has reported only in the past few days and it covers this issue.
Lord Taylor of Holbeach
Of course and I would like to feel that the noble Lord would know that I wish to continue the very useful dialogue we have had on this Bill. I felt it would help the noble Lord if I defined the areas where I feel there is going to be more scope for improving the Bill—as we would both describe it—and areas where I think it is not going to be possible. I thought it was better to be upfront and frank about it and I hope that the noble Lord will understand that. We want to maintain our dialogue because, despite the difficulties the Bill had in its early days, I believe this could be a very useful piece of legislation and one which suits both Government and Parliament in its operation provided we put the proper work into the foundations. We will have a chance to talk about that when we come to other amendments in this now slightly enhanced grouping.
As I said, this is why I cannot accept Amendment 118B or Amendment 176 in the name of the noble Lord, Lord Dubs, which makes provision regarding the commencement date of amending orders using wording which appears to be drawn from the Civil Contingencies Act. That Act was designed to create a framework for dealing with emergency regulations, which, by their extreme nature, circumvent the usual channels of parliamentary scrutiny. I do not accept that there is a parallel between such orders and those which would be made under this Bill.
Originally my speaking note at this point mentioned sunsetting; then my speaking note did not mention sunsetting because the amendment of the noble Lord, Lord Goodhart, was going to be taken separately. If the noble Lord does not mind I will put it at the end because I think it is quite important that I can say a few words on it.
Amendment 176 would prevent an order being made under this Act from applying to more than one body or office. I understand the thinking behind the amendment which seeks to ensure proper parliamentary scrutiny of these important orders. However, I am also anxious that the Bill is not amended in such a way that will restrict the sensible decision-making of departments or overburden Parliament with a requirement to consider separately multiple orders of a similar class. I am thinking, for example, of the multiplicity of drainage boards which might have similar requirements for secondary legislation. I hope that any wording covering this would not exclude that because it would not be in the interests of efficient use of parliamentary time, particularly given that the changes to be taken forward by the said orders will in most cases have been debated thoroughly in primary legislation.
We do not accept the argument that in all cases the use of omnibus orders would necessarily reduce the level of parliamentary scrutiny. I should also say to the noble Lord that the particular amendments under discussion would have what I believe are unintended consequences by preventing any orders to merge bodies using the power in Clause 2 as such orders would by their nature apply to more than one body or office. However, I am willing to consider again whether some form of restriction on the use of omnibus orders might be appropriate. I would be happy to discuss that with the noble Lord prior to Report stage. So that is another item for our agenda.
Amendment 177 would remove the provision in Clause 27 that aims to give certainty to the order-making procedure and to avoid lengthy debates on hybridity that could unnecessarily delay reforms from being taken forward by Ministers. This sort of provision is not without precedent; nor does it broaden the powers of Ministers in any significant way. Indeed, similar provisions form parts of a number of Acts passed by the previous Administration, including the Regional Development Agencies Act 1998, the Freedom of Information Act 2000, the Charities Act 2006, the Climate Change Act 2008 and the Equality Act 2010. In addition, I am happy to assure the Committee that the Government’s initial assessment was that none of the proposed orders to take forward the reform of bodies listed in Schedules 1 to 6 could be considered hybrid.
Amendment 178 would require an annual report from a Minister regarding the use of order-making powers. I understand that the intention of this amendment is to ensure that the Government are properly held to account for their use of these powers, which is of course right and proper. However, the exercise of the powers will be a matter of public record, as is the case in the exercise of any powers made by statutory instrument. In addition, parliamentarians have a variety of means by which to question the Government on all aspects of policy relating to public bodies via Parliamentary Questions and the Select Committee process. I am unclear what is expected to be gained by the creation of a new reporting burden.
It is also the case that these powers will not be exercised centrally via the Cabinet Office but elsewhere by individual Ministers in departments, who will each have set out their own approach to public body reform in their departmental business plans. It is by reference to those documents that the Government have committed to be held to account and departments will report quarterly on them as a matter of course.
I turn to my noble friend Lord Goodhart’s amendments, which seek to sunset the order-making powers contained in Clauses 1 to 6, 13, 17 and 18 so that they could no longer be used after the dissolution of the present Parliament. As noble Lords will know, perhaps all too well, this is not the first time that we have debated this issue. Since our first day in Committee, the architecture of the Bill has changed as the Government have listened and responded to concerns raised by noble Lords. Most recently, that has resulted in the removal of Clause 11 and Schedule 7. For that reason, this is a timely debate as it allows the Committee to consider the issue in the new context in which we find ourselves.
The issue of sunsetting all the parts of the Bill is a complex one. I can see logic in not leaving bodies in schedules in perpetuity; I think that the noble Lord, Lord Hunt, and my noble and learned friend Lord Mackay made a similar point. Although this is something that the Government are still considering, there is perhaps more merit in the option proposed recently by the noble Baroness, Lady Royall, of sunsetting the contents of the schedules to the Bill rather than the powers themselves. That is all the more persuasive in the light of the removal of Schedule 7, which has drastically limited the scope of these powers, something that had not happened when my noble friend Lord Goodhart tabled his amendment.
Inserting a sunset clause that would limit the period in which powers could be used could now be counterproductive and potentially leave us in the same position as we are in today—that is, without a mechanism to take forward reforms following the regular review of public bodies that the Government will take forward, which I hope will continue in future. By contrast, leaving the powers on the statute book would leave open the possibility for Parliament to debate and consent to the repopulation of the Bill’s schedules through later primary legislation, without having to cover what would be well trodden ground. However, as I made clear to the noble Lord, the Government have already committed to consider this issue further prior to Report stage. I do not intend to renege on that agreement. I am happy to engage on this issue with my noble friend Lord Goodhart and other noble Lords. In that spirit, I hope that he will not press his amendment.
I thank all noble Lords who have contributed to this debate and who have engaged in discussions at earlier stages as this is a culmination of other debates on mechanisms in this Bill. I have made it clear that we continue to look at Clause 8. I hope that my responses today and the amendments and the commitments that the Government have already made reassure the Committee that this Government will ensure that the procedure applicable to orders made under this Bill is proportionate and sensible and allows for proper parliamentary scrutiny of Ministers’ actions. In light of those assurances, I invite my noble friend Lord Newton of Braintree to withdraw his amendment.
Lord Newton of Braintree
My Lords, I need hardly say that I intend to withdraw the amendment. However, I wish to make a few observations. If I understood my noble friend aright, he said that there was no possibility that any order made in relation to any of these bodies could be hybrid.
Lord Newton of Braintree
In that case, why does subsection (4) of Clause 27 need to be in the Bill? I do not expect an answer to that now but given that a large part of my noble friend’s argument was about whether or not things needed to be in the Bill, to put in the Bill something against a risk that does not exist—or is said not to exist—seems to me superfluous. My other point is more friendly. I rather agree: I cannot see much point in the annual reporting requirement.
Beyond that I will not comment except on my own amendment. As I have already said, I could have predicted the “don’t think it ought to be in the Bill” stuff. I could have predicted the line of argument that all these values are so engraved on the hearts and minds—and no doubt other parts of the anatomy—of Ministers that there is no need to engrave them in the legislation, which gives them the powers to do what they can. However, given that they should be committed to the declarations in the coalition’s programme, they should be bound to observe those declarations in the legislation which the coalition passes. I cannot think that that is unreasonable.
My next observation increases my puzzlement. As I said on Monday, when I raised somewhat comparable points with the noble Baroness, Lady Ashton of Upholland, in relation to the terms of reference of a justice council in the Tribunals, Courts and Enforcement Bill, she went away and produced an amendment which wrote in some of these values. I have not been able to consult the noble Baroness as she has rather different responsibilities on her plate in other climes, but my guess is—I hope that I do not upset my noble friend by saying this—that she took my amendment away from a Committee in the Moses Room and went back to the department and it said, “We don’t think this needs to be in the Bill”, and then she said words to the effect of, “Get stuffed. I think this is reasonable and I think Lord Newton is a decent bloke. Let’s put it in the Bill”. I hope that something similar will happen between now and Report. But for the moment, such is my docility and my dedication to the coalition that I beg leave to withdraw my amendment.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
My Lords, government Amendments 113ZA to 113E would change the circumstance in which consent is required from the devolved Administrations for orders brought forward under Clauses 1 to 6. Clause 9 stipulates the circumstances in which the consent of the devolved Administrations should be sought. At present, consent is required from the Scottish or Welsh Ministers or the appropriate Northern Ireland department. The Constitution Committee’s report recommended that consent should more appropriately be obtained from the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly.
Following that report, and in consultation with the devolved Administrations, the Government have tabled amendments to change the current reference to Ministers to reference to the legislatures, in order to reflect the views of the Constitution Committee and the devolved Administrations, which are content with these proposals and have agreed to legislative consent Motions based on this provision.
The remaining government amendments are in response to further consultation with the devolved Administrations. They widen the circumstances in which consent from the Scottish Parliament and the Northern Ireland Assembly would be required in order properly to reflect the relevant devolution settlements, and have been reached in agreement with those Administrations and, again, the devolved Administrations have agreed to legislative consent Motions based on this provision.
Amendment 113AA extends the need for consent from the Scottish Parliament to take into account situations that may arise where functions of Scottish Ministers are altered by changes made by the Bill, but where those changes are not already covered by Clause 9(1) as it stands. The amendment excludes the need for consent to some changes under Clauses 1 and 2, because it would not be appropriate to require consent from devolved Ministers where a body’s functions are in a reserved area and the body is being abolished, or abolished by way of merger. Without this exception, consent of devolved Ministers would be required in areas that are primarily reserved under the Scotland Act 1998.
The drafting reflects agreement reached with the Scottish Government, and we believe that it is a sensible and pragmatic solution that will allow us to implement orders under this Bill effectively. The amendments also ensure that the Bill is consistent with the legislative consent motion currently lodged in the Scottish Parliament, following discussions between my department and the Scottish Government. I beg to move.
Lord Rowlands
I warmly welcome the amendments introduced by the Minister, because the Constitution Committee made a sensible proposal. It was obviously clear that it should apply to not only Welsh Ministers but the Welsh Assembly.
Lord Taylor of Holbeach
(b) which modifies the functions of the Scottish Ministers.(1A) Consent is not required under subsection (1)(b) in relation to provision abolishing a function of the Scottish Ministers which relates to a body abolished under section 1 or 2.”
“(2) An order under sections 1 to 6 requires the consent of the Northern Ireland Assembly to make provision—
(a) which would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of the Assembly, or(b) which modifies the functions of a person within subsection (2A).(2A) The persons referred to in subsection (2)(b) are—
(a) the First Minister and deputy First Minister of Northern Ireland;(b) a Northern Ireland Minister;(c) the Attorney General for Northern Ireland;(d) a Northern Ireland department;(e) a person exercising public functions in relation to a transferred matter (within the meaning of the Northern Ireland Act 1998).”
Lord Taylor of Holbeach
“(4) An order under sections 1 to 6 requires the consent of the National Assembly for Wales to make provision which would be within the legislative competence of the Assembly if it were contained in a Measure of the Assembly (or, if the order is made after the Assembly Act provisions come into force, an Act of the Assembly).
(4A) An order under sections 1 to 6 requires the consent of the Welsh Ministers to make provision not falling within subsection (4)—
(a) which modifies the functions of the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government, or(b) which could be made by any of those persons.”
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“Consultation
(1) A Minister proposing to make an order under sections 1 to 6 must consult—
(a) the body or the holder of the office to which the proposal relates,(b) such other persons as appear to the Minister to be representative of interests substantially affected by the proposal,(c) the Scottish Ministers, if the proposal relates to any matter, so far as applying in or as regards Scotland, in relation to which the Scottish Ministers exercise functions (and where the consent of the Scottish Parliament is not required under section 9),(d) a Northern Ireland department, if the proposal relates to any matter, so far as applying in or as regards Northern Ireland, in relation to which the department exercises functions (and where the consent of the Northern Ireland Assembly is not required under section 9),(e) the Welsh Ministers, if the proposal relates to any matter, so far as applying in or as regards Wales, in relation to which the Welsh Ministers exercise functions (and where the consent of the National Assembly for Wales is not required under section 9),(f) where the functions affected by the proposal relate to the administration of justice, the Lord Chief Justice, and(g) such other persons as the Minister considers appropriate.(2) If, as a result of consultation under subsection (1), it appears to the Minister appropriate to change the whole or part of the proposal, the Minister must carry out such further consultation with respect to the changes as seems appropriate.
(3) It is immaterial for the purposes of this section whether consultation is carried out before or after the commencement of this section.”
Lord Taylor of Holbeach
“Procedure
(1) If after consultation under section (Consultation) the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6, the Minister may lay before Parliament—
(a) a draft order, and(b) an explanatory document. (2) The explanatory document must—
(a) introduce and give reasons for the order (including reasons relating to the objectives in section 8(1)),(b) explain why the Minister considers that the conditions in section 8(2)(a) and (b) are satisfied, and(c) contain a summary of representations received in the consultation.(3) The Minister may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began.
(4) Subject as follows, if after the expiry of the 40-day period the draft order laid under subsection (1) is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the draft order.
(5) The procedure in subsections (6) to (9) shall apply to the draft order instead of the procedure in subsection (4) if—
(a) either House of Parliament so resolves within the 30-day period, or(b) a committee of either House charged with reporting on the draft order so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject it within that period.(6) The Minister must have regard to—
(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,made during the 60-day period with regard to the draft order.(7) If after the expiry of the 60-day period the draft order is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the draft order.
(8) If after the expiry of the 60-day period the Minister wishes to proceed with the draft order but with material changes, the Minister may lay before Parliament—
(a) a revised draft order, and(b) a statement giving a summary of the changes proposed.(9) If the revised draft order is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the revised draft order.
(10) For the purposes of this section an order is made in the terms of a draft order or revised draft order if it contains no material changes to its provisions.”
Lord Norton of Louth
My Lords, I rise briefly to welcome the decision of the Government not to proceed with Clause 11 and Schedule 7 to the Bill. As I said on Second Reading, the prime mischief of the Bill is to be found in Clause 11 and Schedule 7. It is not the only mischief—hence several of the other amendments under discussion—but it is the prime mischief. As the Constitution Committee emphasised, the provision was objectionable on constitutional grounds. The concerns expressed in the report recurred on Second Reading and have been pursued since. There were problems with the inclusion of quasi-judicial bodies, as explained in a powerful speech by the noble and learned Lord, Lord Woolf, and the Government came to recognise the force of that argument.
However, even with the removal of the bodies with a quasi-judicial role, the basic objection to the provision remained. I saw no clear rationale for placing statutory public bodies in a living uncertainty. As I said in November, this was a lazy way of legislating: effectively parking certain bodies in Schedule 7 until such time as the Government decided what to do with them, whereupon they would place them by order in another schedule. I am very pleased that the Government have now recognised the force of the argument against Clause 11. That argument has been widely accepted in the House.
As I said on Second Reading, there is an alternative to the clause. The Government plan a triennial review of non-departmental public bodies. Why should we not have a public bodies Bill in each Parliament, thereby enabling concrete proposals to be put before Parliament and given proper scrutiny by both Houses? That is the way forward. I am delighted that my noble friend Lord Taylor of Holbeach has added his name to oppose the Motion that Clause 11 stand part of the Bill, and I pay tribute to the way in which he has listened to Members in all parts of the House and taken on board the points made.
Lord Goodhart
My Lords, I support what my noble friend Lord Norton said. The independence of the judiciary is a central and essential part of the constitution. In particular, the provision that would have enabled the Government to get rid of the Judicial Appointments Commission was plainly unconstitutional and could only have been dealt with by primary legislation.
Baroness Hayter of Kentish Town
My Lords, first, I declare an interest as chair of the Legal Services Consumer Panel, which is part of the Legal Services Board and thus funded indirectly by lawyers, although technically appointed by the Secretary of State. Although we are about to see the LSB dropped from the Bill, I will raise some issues. It will become clear as I speak why I need to do that.
The UK has a long and proud record of an independent Bar, and of independent solicitors. This is important for its own sake, but also because the Bar is the pool from which our judiciary is drawn. They are thus already known for their robustness and independence from political influence by the time they don their judicial wigs. Even before that, lawyers can freely represent clients who are prosecuted by the state or even represent clients taking action against the state safe in the knowledge that their licence and freedom to practise cannot be removed by the state, as it was given by the Bar Council or the Law Society, over which the state has no control.
It is that security that enables lawyers to feel quite free to represent clients without looking over their shoulder to see whether they will be jeopardising their future livelihood. It is very hard to emphasise how important this tradition has been both here and abroad. There were therefore concerns when it was decided that the role of the Bar Council and the Law Society in authorising and disciplining lawyers was to be overseen, and indeed authorised, by the Legal Services Board, which was set up by statute with its members appointed by an elected politician, or at least a member of the legislature—the Secretary of State.
Although they accepted that the era of full self-regulation was past and that some independent membership of relevant boards was required, lawyers here and abroad were wary of the Government taking over ultimate responsibility for effectively granting or removing the licence to practise, with the implication of the regulation of lawyers coming under government control. Nevertheless, when the LSB was set up, albeit funded by lawyers, there were many—I am sure sincere—assurances as to the independence of the Legal Services Board from political interference. Lawyers both here and abroad—because of course many are trained here—were assured that government Ministers would not remove a lawyer who could upset or challenge them. It is very much for that reason that I am delighted about the loss of Clause 11 and Schedule 7, which of course list the LSB. However, in the mean time, another part of government has taken a quite serious swipe at the LSB, as well as my own Legal Services Consumer Panel, and at the new Legal Services Ombudsman set up under the same 2007 Act.
On 8 October last year, just days before the 14 October announcement of the bodies to be abolished or amended by this Bill, all three bodies received letters from the Ministry of Justice saying that the Secretary of State had received a letter from Francis Maude, the Minister for the Cabinet Office, telling us that our three independent, stand-alone websites “will have to be closed” and that we would need to use “an approved government website”—in other words, a .gov.uk domain. It will not come as any surprise that all three bodies protested most strongly that, being independent of government, we would not be treated in that way. Elizabeth France, the chair of the Legal Ombudsman, wrote to the Minister of Justice on 25 October saying that there was no justification for an ombudsman, set up to demonstrate independence from government regulation and the profession and spending no government money, having a .gov address. As she stressed, other ombudsmen, whether it be the Local Government Ombudsman, the Pensions Ombudsman or the Financial Ombudsman, all have .org.uk URLs, signifying their independence from the sectors on which they adjudicate and their independence from government. Our three websites cost nothing to the public purse as they are funded by lawyers, so there is no public expenditure rationale for this. However, it raises serious constitutional issues about the independence of the governance of those bodies—something to which the Government seem a little deaf.
On 28 February, we had confirmation of the very welcome decision to drop Clause 11 and Schedule 7, as reported at col. 799 of Hansard, and indeed had the Minister’s declaration that:
“The Government absolutely recognise that some public functions need to be carried out independently of Ministers”.—[Official Report, 28/2/11; col. 798.]
Just days after that, on 2 March, guess what? We received another e-mail from the Ministry of Justice telling us, “You will need to close your website by 31 March 2011”. To my knowledge there is no legal basis for such diktat from the Cabinet Office and there is, of course, no saving of public money.
Lord Rowlands
My Lords, I had tabled two amendments in this group, Amendment 131, to leave out the Advisory Council on Public Records, and Amendment 161, to leave out the Public Records Office. While I, like everyone else, welcome immensely the fact that Clause 11 and Schedule 7 have gone, I am dying to know what would have happened to these two bodies had the schedule remained.
What would have happened, for example, to the Advisory Council on Public Records? I had the pleasure of serving on this council for a number of years; I thought we were rather a useful body. Most Lord Chancellors seemed to think we were helpful, giving independent advice on whether sensitive records should be released or not. We were a kind of independent buffer, and assisted the Lord Chancellor in that respect. I hope this does not sound boastful but we were quite a well qualified group on the council, and very cheap. It was chaired by the Master of the Rolls, and the last time I saw it was costing about £2,500 a year in expenses to run.
I would be fascinated to know what the intention of including the Advisory Council on Public Records in Schedule 7 was. What was the alternative? I would love to know whether former Lord Chancellors thought a change was necessary.
On a much larger count, what were the Government going to do about the Public Records Office, which was included in this Bill? At various times in my life I have almost become a resident of the Public Records Office and an ex officio member. I have admired and benefited enormously from the fantastic research facilities at Kew and the quality and the dedication of the staff there.
I am happy to tell you that, thankfully, these bodies are now outside the scope of the Bill, but can the Minister tell us what they would have done with them had they left Schedule 7 in? I would very much welcome my curiosity being satisfied in this respect.
Baroness Royall of Blaisdon
I, too, am delighted that the Minister has added his name to the Clause 11 and Schedule 7 stand part debate, and pay tribute to him for listening so attentively to everyone around the Chamber.
I feel sure that I know exactly how it will have happened. He will have been in the Cabinet Office, or wherever, and the Secretary of State will be saying, “Don’t be silly. Of course you can get it through the Lords”. He will be saying, “No, I’m listening. I can't. It’s too difficult”. Eventually, the noble Lord’s arguments will have prevailed, and I am delighted about that.
In moving that the Bill be read a second time, the noble Lord said:
“The fact that a body is named in Schedule 7 to the Bill should not be misconstrued as constituting an intent to abolish or otherwise reform”.—[Official Report, 9/11/10; col. 67.]
He said that in good faith, but it is understandable that any body mentioned in Schedule 7 was immediately worried. Its current operations and future prospects were thrown into doubt and confusion. I recognise that that cannot have been the Government’s intent—that simply does not make economic sense or for good governance—but it was the reality. Each organisation believed itself to be just two orders away from modification, merger or, even worse, abolition. The chilling factor already mentioned was mighty.
If the Minister had not indicated that the Government were minded to delete Clause 11 and Schedule 7, I can assure him that Committee stage would have lasted for even longer, because it would have been our duty to table an amendment on each of the bodies to tease out from the Government their intentions for the body in question. Thankfully, such scrutiny was not needed but, more importantly, the clause and schedule are being deleted, so the axe has been lifted and the bodies mentioned can get on with their work.
I do not want to detain noble Lords at this hour, but I must say that Clause 11 and Schedule 7 were very unwise. They are a testament to rushed drafting and a woeful lack of consultation between the Cabinet Office and other departments. The Government have seen sense; and I am glad. I have a question for the Minister. I presume that some of the bodies mentioned in the schedule might be moved at some stage in the legislative process. Can he say which or how many bodies will be moved, where they will be moved to and when that will be? I would naturally also be grateful for confirmation that the necessary consultation is taking place at this moment with any bodies likely to be moved from Schedule 7 into another schedule.
I have great sympathy with the noble Lord, Lord Norton of Louth, when he says that there should be a Public Bodies Bill at the beginning of each Parliament but, in essence, if we are all content with the framework of this Bill and the schedules are sunsetted, that is what we will have.
Lord Taylor of Holbeach
I am very grateful for those contributions. If there were any doubt why we were wise not to keep Schedule 7 in the Bill, the answer lies in the comments of the noble Lord, Lord Rowlands. As like as not, nothing would have happened to those bodies. They would have been subject to a review in another three years under a periodic review of public bodies, which is an ongoing commitment of the Government. As the noble Baroness pointed out, it was very difficult for any representative of the Government to convince public bodies that that was the case. We may now have a much more satisfactory solution—from both a parliamentary and a practical point of view—to how the review of public bodies can be an ongoing process.
I thank my noble friend Lord Norton of Louth. He and I have known each other longer, I guess, than any other people in this House. We were youngsters together. Indeed, my noble friend was the William Hague of his day at Conservative Party conferences, but he will probably not thank me very much for revealing that to the House. I thank him for his comments. We have taken the committee’s reports seriously and sought to address them, because I have taken the view that the guidance of this House has been positive rather than destructive.
I turn specifically to a comment of the noble Baroness, Lady Royall, that there was a lack of discussion between the departments. I do not think there has been any Bill in which there has been so much discussion across government departments. It is one of the complexities of this Bill that it involves every department, so all departments have been involved in the preparation and structure of the Bill.
As for the detailed question which the noble Baroness asked me about any movement of bodies into schedules during various stages of the Bill, I am not in a position to give an answer on that at this stage, but I will keep the House informed. We are determined that nothing should be introduced to the Bill that cannot be justified by a strong sense of purpose and suitability, and it is not a large number of bodies involved. Consultations are going on, but there will be a number of bodies where proposals exist to come into the Bill that will not be introduced into the Bill because we do not consider that they are in a suitable state of preparation. We feel that we have to justify the admission of any body that we bring into the Bill at this stage. I think that is a reasonable position, and I hope all Members of the Committee will agree with that.
The noble Baroness, Lady Hayter, and I have talked about the problem that she has. When she talked about the Government being deaf, I hope she was not referring to me. I hope she would acknowledge that I responded immediately to the point she made; I got a response and I showed it to her this evening before we came in here in the hope that we would not have to debate it. That is because it is not really a matter for this Bill; it is a matter of the relationship between public bodies—and particularly those in the legal sector—and Government. I will, of course, write to her on the situation as it is, and I note her interest in the matter. I hope that we can keep in touch.
I should just say a few words on these parts of the Bill. As set out in the House on 28 February, these parts of the Bill were designed to facilitate the Government’s stated commitment to the regular review of all public bodies by creating a means by which changes to such bodies could be made following future reviews without recourse to further primary legislation. It was not, as some have suggested, intended to threaten the status of public bodies that the Government had decided needed to be retained. In particular, the Government recognise that some public functions need to be carried out independently of Ministers. Schedule 7 was never intended to hinder or threaten their independence. However, following representations from noble Lords across the House, including Members of the Delegated Powers and Regulatory Reform Committee, the Government have acknowledged the significant concern within the House that these parts of the Bill represented a significant delegation of powers to Ministers and had the potential to constitute a threat to the necessary independence of some public functions.
Accordingly, I have added my name to those of other noble Lords opposing the question that Clause 11 and Schedule 7 should stand part of the Bill. The consequences of removing these parts from the Bill will be that the powers in the Public Bodies Bill cannot apply to any body or office without the express approval of Parliament through primary legislation for that body or office to be listed in one of the Bill’s schedules. Accordingly, any changes to public bodies following the Government’s planned future reviews which necessitate legislation will require a primary legislative vehicle. I hope that this change provides a significant assurance to the Committee both as regards the status of bodies and the Government’s commitment to the appropriate parliamentary scrutiny of government policy.
As I set out on 28 February, it will also be necessary, as a result of the removal of Schedule 7, to introduce a small number of amendments to move bodies currently in that schedule to one or more of the other schedules. These changes will ensure that all the reforms announced in last year’s review can be implemented. These amendments will be made at a later stage of the Bill.
I thank noble Lords for their contributions to the debate and for their positive and helpful engagement on the question of the proper scope and mechanism of this Bill. Throughout its passage to date I hope that, in agreeing to oppose the question that Clause 11 and Schedule 7 should stand part, I have been able to demonstrate the Government’s commitment to engage with and respond to the concerns of noble Lords.
Viscount Eccles
This clause covers the procedure for orders made under Clause 11, so I imagine that it must go. It is about orders made under Clause 11(1). If Clause 11 has gone, Clause 12 must go, too.
Lord Taylor of Holbeach
Having just been speaking, it was quite difficult to get order into my papers, but I am there now.
Lord Wigley
“Welsh language requirements
(1) An eligible person to whom functions are transferred by an order made under section 1 or 5 shall be subject in relation to the exercise of those functions to any Welsh language requirements applicable to the body or office from which functions are transferred.
(2) A new or existing body, office or eligible person to which or to whom functions are transferred by an order made under section 2 shall be subject in relation to the exercise of those functions to any Welsh language requirements applicable to the body or office from which functions are transferred.
(3) A new body, the Welsh Ministers, the Environment Agency, the Forestry Commissioners, the Countryside Council for Wales (“CCW”), or any other person exercising public functions in relation to Wales, to whom any function is transferred by an order made under section 13 shall be subject in relation to the exercise of that function to any Welsh language requirements applicable to the CCW, the Environment Agency, the Forestry Commission, the Welsh Ministers or any person exercising any Welsh devolved function relating to the environment.
(4) A body specified in section 15(2) or section 15(3) which makes arrangements under section 15(1)(a) to exercise a function of another such body shall be subject in relation to the exercise of that function to any Welsh language requirements applicable to that other body.
(5) This section does not prevent the amendment of Welsh language requirements by a further language scheme, Welsh language scheme or standards.
(6) In this section—
“language scheme” means a language scheme prepared in accordance with section 5 of the Welsh Language Act 1993;
“standards” means standards specified by regulations made by the Ministers or the Welsh Ministers under section 26(1) of the Welsh Language (Wales) Measure 2010;
“Welsh language requirements” means requirements arising under any language scheme, Welsh language scheme or standards which is or are in force on the coming into force of any order or arrangements to which this section applies; and
“Welsh language scheme” means a Welsh language scheme adopted under section 21 of the Welsh Language Act 1993.”
Lord Wigley
My Lords, in moving this amendment I shall speak also to Amendment 166BZB. I certainly shall not unduly detain the Committee at this late hour, and we touched on certain aspects relating to Welsh speakers in the context of S4C earlier today—it seems very much earlier by now. Ministers will be aware that public bodies in Wales have Welsh language responsibilities under the Welsh Language Act 1993. This is now in the process of being replaced by new legislation passed by the National Assembly for Wales last year. The question that arises in the context of the Public Bodies Bill is that of ensuring continuity, clarity, consistency and the safeguarding of Welsh language rights when bodies operating in Wales may be merged with other bodies which do not necessarily currently have either a statutory or possibly a voluntary language plan.
These new clauses address two aspects of this. Amendment 166BZA provides for the continuity of language requirement when functions transfer from one body to another under this Act. Amendment 166BZB places a responsibility on relevant Ministers, before making an order under this legislation in relation to a public body that provides services to the public in Wales, to undertake an assessment of the implications of change on the use of the Welsh language in the provision of those services. Consultation for such assessment could be done either by the Minister here or by Ministers of the Welsh Government, as might be appropriate.
I would therefore ask the Minister either to accept these new clauses, to consider before the Report stage how to deal with the issue, or to give me an assurance that somehow these matters have already been looked after in a way that neither I nor the Welsh Language Board, which helped me with these amendments, are aware of so far. I beg to move.
Baroness Royall of Blaisdon
My Lords, we support the amendments because they would safeguard and promote the Welsh language. They are fundamental to the protection of the Welsh language in Wales and to good governance there. We hope that the Minister will be able to take them away and consider them before Report.
Baroness Rawlings
My Lords, we return to Wales. At this late hour, I am sure that noble Lords will appreciate my being brief, but this does not imply that we do not take the two amendments seriously.
The Government sympathise with the desire of the noble Lord, Lord Wigley, to make certain that support for the Welsh language, which is undertaken by many bodies providing public services in Wales, is not lost when roles are transferred from one person to another. This is not our desire and we are committed to making certain that this work is not undermined. However, where we differ with the noble Lord is on whether the amendments represent the best means of achieving this aim.
I shall first consider the noble Lord’s Amendment 166BZB, on Welsh language assessments. I understand that there are 18 bodies whose roles could be transferred under the Bill which currently have Welsh language schemes and services. If the roles of those bodies are transferred elsewhere, the Government will consider the options for maintaining these services. Ministers will conduct impact assessments when proposing to make orders under the Bill. The Bill will require them to consult a wide range of interested parties.
I turn to Amendment 166BZA, on the application of Welsh language requirements. Welsh Ministers already have the power to bring bodies within the scope of the Welsh language legislation. The precise duties which are imposed are then a matter for negotiation with the Welsh Language Board. In the Government’s view, these powers provide a more appropriate way of addressing this issue than the noble Lord’s amendment. Indeed, the amendment could even reduce Welsh language provision. We consider it more appropriate to assess what requirements are needed in the context of each specific transfer, using the powers available in Welsh language legislation and in the Bill.
I thank the noble Lord for bringing up this matter. Consultation is going on. I hope, therefore, that he will not wish to press his amendments.
Lord Wigley
I am very grateful for that response. On the second of the two proposed new clauses, that an assurance has been given that assessments of the impact of any changes on the Welsh language will be possible in many ways meets the point that I make in that clause.
On the first of the proposed new clauses, the Minister’s comments with regard to the powers of Ministers in the National Assembly for Wales reassure me that those powers can be used fully to ensure that there is no loss of Welsh language requirements. That was my interpretation of what the Minister said. If there are any aspects of the ongoing discussions to which she referred that bring out questions that have not been covered, perhaps there will be an opportunity to tie up those matters fully on Report. On the basis of the assurances that have been given tonight, I beg leave to withdraw the amendment.
Lord Lester of Herne Hill
“Restrictions on Ministerial powers
(1) The modification or transfer of a function by an order under the preceding provisions of this Act must not prevent it (to the extent that it continues to be exercisable) from being exercised independently of Ministers in any of the following cases.
(2) Those cases are—
(a) where the function is a judicial function (whether or not exercised by a court or tribunal); (b) where the function’s exercise involves enforcement activities in relation to obligations imposed on a Minister;(c) where the function’s exercise otherwise constitutes the exercise of oversight or scrutiny of the actions of a Minister.(3) Provision made by an order under the preceding provisions of this Act must be proportionate to the reasons for the order.
(4) In this section “enforcement activities” means—
(a) the bringing of legal proceedings or the provision of assistance with the bringing of legal proceedings;(b) the carrying out of an investigation with a view to bringing legal proceedings or to providing such assistance; or(c) the taking of steps preparatory to any of those things.”
Lord Lester of Herne Hill
I believe that Charles James Fox became known as the dinner bell because when he got up to speak everyone had dinner. This is the second time this week that the House has had the misfortune to hear me after midnight, so I hope that I do not become known as the nightcap as a result. However, it reminds me of the barrister who once asked an Irish judge for time and the judge replied, “Thou hast exhausted time and trespass now upon eternity”.
This amendment is tabled in substitution for Amendment 175. It has support from all sides of the House. I am extremely grateful to the Bill team, the Government’s senior legal advisers and my noble and learned friend Lord Mackay of Clashfern, who have enabled an amendment to be produced to give effect in clear terms to Amendment 175. I am also grateful to the noble Lord, Lord Pannick, who managed a successful revolt on the first day in Committee to obtain the House’s approval of our paving amendment. I express thanks to the noble Lord, Lord Hunt of Kings Heath, and the Minister, without whom what is now proposed would not have come to pass before the Bill left the Committee. Three scrutiny committees have also played a vital role: the Constitution Committee, the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights, of which I am a member. Ministerial clearance of the amendment came too late to be able to advise those committees before the amendment was tabled yesterday late afternoon.
Lord Mackay of Clashfern
I have been privileged to put my name to the amendment and of course I support it wholeheartedly. It makes clear the legal framework within which the ministerial powers under the Bill may be exercised. I thank my right honourable friend Francis Maude for seeing me on this matter and I assure the noble Baroness, Lady Royall, that the consultation right across Whitehall was necessary. That is perhaps one of the reasons why we were not quite as early with this as some of us might have liked. I thank members of the Bill team very much for the patience that they exhibited in listening to me preaching to them about this, in a manner to which your Lordships are accustomed.
Lord Hunt of Kings Heath
My Lords, I say to the noble Lord, Lord Lester, that if he continues to table amendments of this quality he will be very welcome to move them after midnight, day after day. I, too, thank him, as this is an important amendment. It provides considerable reassurance to noble Lords about how the Bill will operate when enacted. I am grateful to him; it goes right back to that first vote on day one in Committee, which seems a little time ago. I also thank the noble and learned Lord, Lord Mackay, for his great assistance, and the Bill team and the Minister. This is a very positive outcome.
Lord Norton of Louth
I add my thanks to the noble Lord, Lord Lester, and all those involved in generating the amendment. I have previously made the point that, in terms of parliamentary scrutiny, the work on the Bill has been an example of best practice. The amendment is a particularly fine example of that in terms of the consultation that has taken place to produce an amendment for which there is agreement throughout the House. It is an excellent addition to the Bill.
Lord Taylor of Holbeach
My Lords, I am delighted that the amendment has received such a welcome. As noble Lords will know, my name is on it, too. I have a note here that thanks an awful lot of people, quite correctly, including my noble friend Lord Lester of Herne Hill, for his persistence and commitment to get this right, and my noble and learned friend Lord Mackay of Clashfern, whose advice has been invaluable to us all. I am grateful for the support that the noble Lord, Lord Pannick, has also given to this and to noble Lords opposite for their support. We have all wanted to see the amendment included. My speaking note contains no mention at all of the people who probably had to work hardest of all on the amendment—the Bill team—in trying to get the wording right. I am grateful to the noble Lord, Lord Hunt, for mentioning that and I thank members of the team for their commitment to get this right.
As noble Lords have said, the amendment will, I hope, provide substantial reassurance to the Committee and the wider public that the Bill will be used to bring forward only necessary and proportionate reforms that will maintain the independence of those public functions that clearly need to operate at arm’s length from government. I am delighted that it has been added to the Bill and I trust that it will secure the support of all sides of the House.
Lord Henley
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)
My Lords, it is with some delight and some relief that I move Amendment 175C and in doing so speak to Amendments 175D, 175E and 182. The relief for all those in the Committee at this stage is because this is the last substantive group in the entire stage.
Before I finish, I offer an apology to the noble Lord, Lord Wigley, in that I promised him that we would end with a Welsh amendment. I am afraid that we are not doing that—it was going to come earlier but it was not moved.
I informed the Committee last week that the Government had decided to remove the forestry clauses from the Bill, and this we have now done. This set of amendments would remove a series of references to the Forestry Commission from Clauses 23 and 24. It is a tidying up exercise. I beg to move.
Baroness Royall of Blaisdon
My Lords, I warmly welcome these amendments and the removal of the final references to the Forestry Commission. We have been told on numerous occasions that the campaign against the sale of our forests and woodlands was inflammatory and misguided, but the forestry clauses were, I believe, a testament to the fact that the Government wished to enable the sale of our woodlands and forests. The Minister responsible made that clear on a number of occasions. I am glad that the Bill is now being amended. I know that hundreds of people up and down the country will feel mightily relieved—the very people who welcomed the independent panel looking into the future of forestry. We look forward to their deliberations in due course.
Lord Taylor of Holbeach
Lord Taylor of Holbeach
Lord Taylor of Holbeach
“(2) In this Act, references to the “30-day”, “40-day” and “60-day” periods in relation to any draft order are to the periods of 30, 40 and 60 days beginning with the day on which the draft order was laid before Parliament.
(3) For the purposes of subsection (2) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”
Lord Taylor of Holbeach