Public Bodies Bill [HL]

Debate between Lord Adonis and Lord Lester of Herne Hill

Monday 4th April 2011 Lords Chamber

[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.