Public Bodies Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 9th March 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

84: Clause 5, page 3, line 2, at beginning insert “Subject to section (Restrictions on ministerial powers),”

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Debate on whether Clause 5 should stand part of the Bill.

[Lord Hunt of Kings Heath]

My Lords, we come to an important group of amendments, which are in part probing but in part really urge the Government to take a rather more transparent approach when an order under this Bill is used.

Clause 5 gives power to modify or transfer functions and on the face of it appears to give huge discretion to Ministers. I would really like to hear from the noble Lord, Lord Taylor, the circumstances in which he envisages the power being used. In our earlier debates on Monday in relation to Clauses 3 and 4, Ministers gave a great deal of comfort when they described the circumstances in which orders in relation to governance and financial arrangements would be used and it would be helpful if the noble Lord were able to give similar comfort in relation to Clause 5. If this clause is used, will the Minister describe how that use of it will then be made transparent? When the order is used, what will happen to the functions; who will be performing them in future; why are the changes necessary; what about the future performance of the transferred and modified functions; and what do the Government intend to do to track the performance of those transformed or modified functions to ensure that the decisions made by passing the order were and remain appropriate? What assurance can the Minister give about the information that will be given to Parliament at the time of the order, if it is used? What further work will be done subsequent to the order in relation to performance scrutiny?

It is fair to say that some of these concerns were raised by my noble friends during the UK Film Council/BFI debate on Monday. My noble friend Lord Stevenson noted in that debate that while some functions of the UK Film Council were clearly marked as transferred to the BFI and Film London, there were other central functions, such as working film exports, upon which the Government remained rather silent until prompted. I would like to get some reassurance that if this order is used in future, there will be a way of providing Parliament with as much detail as possible about what has happened to those functions.

On Clause 7, I am looking for some comfort. We have been approached by the Royal Society for the Protection of Birds, which is concerned about the legal effect of Clause 7. While bearing the innocuous title, “Consequential provision etc”, this clause appears to give Ministers the power to modify the functions of the transfer or transferee organisations. What appears to be missing is a qualifying element of consent. Where, for instance, the Government would like a body such as Citizens Advice, in the case of Consumer Focus, to assume functions, surely it would be a requirement of the Government first to obtain the organisation’s consent to the changes. It would also be nice to know that the CAB was in a condition to accept those responsibilities. I point out to the Minister the dire situation in the great city of Birmingham, with the potential closure of all the CAB centres. As currently drafted, the clause essentially makes it permissible for the Government to change the constitution or funding arrangements of a body that is to assume those functions without consent or even bothering to consult that body. I have looked for comfort there.

The Minister will know of the quality of the briefing provided by the RSPB, since he used it extensively during the wonderful days when we debated the Marine and Coastal Access Bill. It is quite extraordinary that officials have found a defect in that Bill, given the extensive briefing that we received from bodies like the RSPB.

The other two amendments in this group deal with the related subjects of data protection, freedom of information and privacy. We have tabled Amendment 102 to ensure that where public functions of bodies listed in Schedule 5 are transferred to another body, the public will continue to have assurances that the performance of these functions is transparent. They will be audited, the responsible body will report to Parliament on the exercise and expenditure of these functions and the freedom of information and data protection provisions will still apply to the organisation to which the function is transferred.

Then we come on to Amendments 175A and 175B. They are in the name of my noble friend Lord Knight of Weymouth but unfortunately he is unable to be here. His amendments effectively prevent a Minister making an order to share personal data. He was using these amendments to emphasise the complexity of these subjects and his doubt whether it is wise simply to include them in a statutory instrument. If he were here, he would speak of his own experience with data protection in the context of the Education and Skills Bill, which required further amendment through the Apprenticeships, Skills, Children and Learning Bill. The point that he wanted to make is that these are complex and sensitive issues and that, in relation to parliamentary scrutiny, it may be that secondary legislation is not really the most suitable vehicle. As we have learnt in the past, if you get this wrong you have to come back and try to put it right at a later date. I beg to move.

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[Lord Goodhart]

I should like to add a few words in my capacity as the previous chairman, and a member for several years before that, of the Delegated Powers Committee. A strong case has been presented for further action on this matter. The final sentences in paragraph 20 of the committee’s latest report state:

“Especially in the absence of a convincing explanation, it is not appropriate for an existing power to make subordinate legislation to be transferable to another, unidentified, body. This renders the powers in clause 5 in relation to these bodies especially inappropriate. The Committee draws the attention of the House to amendment 99A”.

Schedule 5 lists a group of bodies that are among the most important to be covered by the Bill. They include the British Waterways Board, the Equality and Human Rights Commission, the Competition Commission, the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the national parks authorities, Ofcom and the Office of Fair Trading. All are organisations of considerable importance. There is a very strong case for the arguments presented by my noble friend Lady Thomas of Winchester, the noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady Andrews. This matter needs further consideration and I hope that my noble friend the Minister will use the period before Report to have a serious look at it.

[Lord Hunt of Kings Heath]

My Lords, first, I echo my noble friend Lady Andrews in paying tribute to the stewardship of the noble Lord, Lord Taylor. Clearly, he has listened to the House and we have made a great advance. We very much appreciate the briefing sheets from his hard-working officials.

It is good that the noble Lord, Lord Goodhart, has joined in our debates. I do not know whether the Government think the same, but the point that he raised underpins the remarks of his noble friend Lady Thomas, the noble and learned Lord, Lord Mayhew, and my noble friend Lady Andrews. They made pertinent remarks about how the powers in the Bill should be exercised. The noble Lord, Lord Taylor, and his noble friend Lord Henley have given us eminently reasonable explanations as to how Ministers intend to use the powers. The problem is that future Ministers may take a different approach. The noble Lord, Lord Walton, put forward the good example of the HFEA and the HTA.

We are looking for ways to build further reassurances into the Bill. We will have a later debate on what the noble Lord calls the enhanced scrutiny of orders and on my amendment proposing a super-affirmative procedure. That is one approach, but we should also pursue the suggestion of both the noble Baroness, Lady Thomas, and the noble and learned Lord, Lord Mayhew. I am glad to hear that work is in progress on Clause 8. The noble Lord said that he could not give any guarantees, but I encourage him in that direction.

I am glad that the noble Lord also said that reviews of these bodies will take place in future. We on the opposition Benches support that. It is right that these bodies and their functions should be kept under regular review. I was also glad to hear that accountability, reporting and FOI responsibilities will continue if the functions are transferred. However, does that apply only if they are transferred to a public body? What would happen in the case of Consumer Focus, whose functions will be transferred to Citizens Advice? What about the British Waterways Board when it transforms itself into a charity? What will happen to the accountability, reporting and FOI requirements?

I take the noble Lord’s point about the sparing use of data sharing that is likely to occur under any order arising from the Bill. However, I issue a caution that past experience suggests that this issue is very complex and will demand the careful use of orders. The noble Lord may want to write to me on the issue of non-public bodies in relation to FOI and accountability functions. In the mean time, I am glad that work is in progress.

Clause 5, as amended, agreed.

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[Lord Henley]

My Lords, like the noble Lord, Lord Bradshaw, I regret that we have been deprived of the pleasure of having my noble friend Lord Greaves move this amendment this afternoon, but I am very grateful that his noble friend was able to step in and move it, because it is important that the Government set out their case in relation to the waterways.

As the Committee will be aware, the British Waterways Board was originally established under the Transport Act 1962 to operate and maintain much of Britain’s waterways network. In passing, I shall mention that we are dealing with England and Wales here; Scotland is another matter. I am not sure that any waterways go across the border, so there are not going to be any concerns there. However, I remember that with the passage of the Scotland Act we had problems with some of the rivers—

[Lord Hunt of Kings Heath]

Because the boundary moves.

[Lord Henley]

Indeed, because the boundary moves. If the noble Lord remembers correctly, that legislation allowed the Scottish Government to have an interest in English matters relating to some rivers’ tributaries and vice versa. With England and Wales, the case is different. I do not know the answer to the noble Baroness’s question about the powers of the Welsh Assembly Government but I shall certainly write to her in due course.

In the intervening years since 1962, the British Waterways Board has done an excellent job in transforming what was a very run-down industrial transportation network, with its roots in the industrial revolution, into a hugely valuable environmental, heritage and leisure asset, but it is one which still—again, I am grateful to the noble Lords, Lord Bradshaw and Lord Greenway, for stressing this—also carries some freight, so it continues to have a commercial operation. Its network consists of some 2,200 miles of historic canals, rivers and docks, and it is visited by some 13 million people a year. Again, as I think noble Lords have made clear, it provides benefits that range from not just freight, which has been mentioned, but flood relief and sanctuary for wildlife, as well as its users, through to employment and recreational facilities for walkers and others.

The intention behind setting up a new waterways charity—and I am grateful to the noble Baroness, Lady Quin, for stressing that the previous Government were thinking of something along very similar lines—is to give waterways users and the communities alongside them greater involvement in how waterways are managed, thus contributing to their sustainability in the longer term. Moving the powers, functions and assets of British Waterways to civil society through the creation of what we would like to think of as a sort of national trust—a phrase used by the noble Lord, Lord Bradshaw—for the waterways will allow key stakeholders the opportunity to play a role in their governance and allow them to bring their expertise and passion to the organisation. Providing greater engagement by local communities will, we believe, lead to a range of enhanced public benefits, including green travel to work, health and well-being, support for inner cities and rural regeneration.

As I have mentioned governance, it is worth stressing that the consultation includes proposals for governance on the charitable company model. Subject to the passage of this Bill through Parliament, there will be further consultation on the draft order or orders—I cannot remember whether there is one or more than one—required to transfer the duties and functions of British Waterways to that organisation. However, in relation to the questions that the noble Baroness asked, following on from the speech of her noble friend Lord Hunt in relation to Clause 5, I hope she will await a response from my noble friend which, I am assured by him, will come before we get to Report stage.

There are obvious concerns over funding, particularly in the light of what has been, as we know, a very tight spending review settlement—and I will not say again why it has been so. British Waterways’ funding has seen a reduction in line with other bodies that are attached to Defra and to other parts of government. It is no greater because British Waterways is becoming a charity. We recognise, however, that the move to a charity will require a long-term contract for continued government support, and we have given a commitment to maintain levels in line with the spending review until 2022-23. That will obviously be subject to—