Public Bodies Bill [HL]

Lord Adonis Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Adonis]

Can my noble friend clarify one important point? As I understand the amendment in the name of my noble friend Lord Hunt, proposed new subsection (10) in effect gives the House the power to amend an order by agreeing to a recommendation by a committee that an amendment should be made. Does that not meet the point that my noble friend is trying to make in his amendment?

[Lord Dubs]

It does partly, but Amendment 96 is a little stronger, as it would mean that, when faced with an order, we could simply amend it without any preconditions. If I understand it correctly, the other amendment has a precondition in it, whereas this one does not. My argument is that that would be right not just for this Bill but for the run of orders.

[Lord Lester of Herne Hill]

Amendment 69 seems unexceptionable. I do not understand why the word “may” is included in Clause 11(1) and the word “must” is in Clause 11(2). I do not understand why there is a need for any discretion in that area. The clause refers to a situation in which,

“after consultation under section 10 the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.

If he is satisfied with all that, he or she should have the obligation to lay a draft order and explanatory document before Parliament. Unless the Minister has some special reason why he needs to retain a discretion, I agree with the noble Lord, Lord Hunt of Kings Heath, on that narrow amendment.

My noble friend Lord Phillips of Sudbury’s Amendment 69AA is on proportionality. This is a bit complicated, but I hope that I have got it right. I like to think that the noble and learned Lord, Lord Mackay of Clashfern, and I are godparents to Clause 16 and, especially, to including proportionality. The principle of proportionality simply teaches that you must use necessary and proportionate means to accomplish a legitimate aim. The Minister is proposing to leave out from Clause 11(2) the words,

“including reasons relating to the objectives in section 8(1)”,

so that it would just state,

“introduce and give reasons for the order”.

Another amendment changes Clause 11(2) to include a reference to purpose in what will be Section 8(1).

The Minister will explain all this, but the reason for leaving out the words,

“including reasons relating to the objectives”,

in Clause 11(2) is presumably that they are unnecessary, because the reasons will be the reasons and, once the reasons are given in the Explanatory Memorandum and otherwise, one has in the Bill the point that my noble friend is making—the Minister will have to state the reasons for the order and then under Clause 16 he or she will have to comply with the principle of proportionality. It therefore seems to me that, subject to drafting points, the substance of what my noble friend Lord Phillips is seeking is already catered for. The principle of proportionality is fully embodied in the Bill because it requires the Minister to state the reasons. When the Minister legislates by order, he or she must do so in a way that is proportionate to achieving the legitimate aims in the reasons. I hope that that is more or less intelligible. I think that I know what I am saying, but others may not. Anyhow, that is the best I can do.

[Lord Adonis]

The case made by my noble friend Lord Hunt in respect of the super-affirmative procedure is extremely strong. There is a fundamental point of principle here: do we take ourselves, the House of Lords, seriously as a legislature? If we do, I do not believe it right that we should delegate the degree of power that we are delegating to the Executive without retaining more of the power of control simply to debate and amend the proposals that come forward in respect of the merger, abolition or reconstitution of public bodies. The critical factor at stake is that all these bodies were established by statute. They are all important bodies—you just need to read the schedules to see the importance of the bodies listed—and they were all subject to lengthy debate in Parliament when they were established. All that my noble friend Lord Hunt is seeking to do, with the full authority of the relevant committee of the House, is to give the House a somewhat larger power to amend orders and to require proper debate and a proper account by the Government to Parliament where they are not minded to take account of that debate and any amendments that are proposed. It seems to me that, if we are not prepared to stand up for the rights and responsibilities of this House to that extent, we are quite wrongly denuding ourselves of our proper responsibility as a legislature.

[Lord Whitty]

I can only agree with what my noble friend Lord Adonis has just said with regards to Amendment 71. However, I rise in the regrettable absence of the noble Lord, Lord Newton of Braintree, to speak to Amendment 69D. This refers to the functions of those bodies that are to be abolished in Schedule 1 and would require the Government to give a clear indication of which functions are to be retained and by whom they are to be carried out.

I draw attention to this and have become active on this Bill because of an interest of mine as the former chair of Consumer Focus. Consumer Focus is still in Schedule 1, but, as I have previously argued, that is probably the wrong place, in that the Government have indicated that they want to transfer its functions rather than to abolish them. While Consumer Focus remains as a body to be abolished, it is right that the legislation should require the Government to specify to whom its functions should be transferred. The Government’s current indication is that they wish to transfer the majority of its functions to Citizens Advice and some of its functions to a body relating to Northern Ireland law, the Consumer Council for Northern Ireland. Citizens Advice is a charity incorporated under English law and separately under Scottish law. It is not at all clear that the Government will actually transfer all those functions to Citizens Advice or, pre-empting an amendment that the Minister will move in the last group, whether Citizens Advice would necessarily agree to take on those responsibilities; as an independent charity, it has a right to refuse to do so.

Developments in Scotland and Wales may well also result in somewhat different arrangements being set up after the forthcoming elections. Indeed, arguments relating to the regulated industries are different from the general run of consumer issues. Given all that uncertainty at this stage when we are passing the primary legislation, it is surely incumbent on Ministers or future Ministers to give a clear indication to Parliament of where the current functions set down in primary legislation are going to go or whether they are going to lapse. The amendment in the name of the noble Lord, Lord Newton, would achieve that objective and therefore I see no reason why the Government should not accept it, if not tonight then at some later stage.

In the mean time, I endorse the general view expressed by my noble friends Lord Adonis and Lord Dubs and by the noble Baroness, Lady Thomas, that at some point we are going to have to look at the way in which we deal with the secondary legislation under this Bill, because the normal form of so doing will not be adequate for many of these changes.

--- Later in debate ---

[Lord Adonis]

Would the noble Lord be prepared to give that power to the House as a whole, because at the moment there is no other means of amending a statutory instrument? If he is not prepared to give that power to the House as a whole or to a committee, he is not prepared to accept that the House has any power to amend a statutory instrument, which is the central point of principle at stake in this amendment.

[Lord Blackwell]

I thank the noble Lord for his intervention. I was going on to say that, if there were to be a change in procedures, the change would out-favour the one recommended by the noble Lord, Lord Dubs, to enable that debate to take place on the Floor of the House. However, I am reluctant to see a committee venture into areas that became highly controversial and that moved outside the narrow debate around the appropriateness of the regime and its constitutionality, and end up, in effect, having votes in committees that should be votes on the Floor of the House. It would be a wrong step to try to move committees into taking that view.

Given the way in which orders are dealt with, there is an argument for considering the suggestions made by the noble Lord, Lord Dubs. A more significant issue is whether we ought to have and exercise the power genuinely to vote on these orders. Frankly, if we do not, it is all a bit of a charade anyway. Therefore, I support those who have suggested that it is worth, in the wider scope of things, looking at reforms to procedures to allow amendments to be made and voted on on the Floor of the House and reconciled with the other House. However, that is not achieved by the Opposition’s amendment to move to a super-affirmative procedure, which would create undesirable complications. The way in which the Government have proposed to deal with it is the best compromise within the existing structure of orders.