Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 4th April 2011 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, it is my turn now to pay tribute to the Minister. This is a greatly improved Bill and it is with grateful thanks to our Minister in this House that those profound changes have been made. Amendment 60A is a testament to one of the big changes in the Bill.

The noble Lord, Lord Maclennan of Rogart, was right to point out that many of the problems relating to the Bill came from the speed with which it was introduced. There was no excuse for that because the Bill should not have been introduced so expeditiously. I in no way blame the Minister for that and he has been exemplary in the way in which he has engaged with Members on all sides of the House.

In relation to Amendment 60A, I appreciate that the Government have moved substantially in setting the criteria for making an order. We particularly appreciate subsection (1) of the amendment:

“A Minister may make an order under sections 1 to 5 only if the Minister considers that the order serves the purpose of improving the exercise of public functions, having regard to”.

We believe that to be particularly important but I still think that improvements could be made. It is clear, as my noble friend Lord Soley and others have said, that there is still a nebulous area over which more discipline could be exercised and which could feed the fees of lawyers and be long debated in the courts. It would be good if there could be a little more clarification.

The Delegated Powers Committee said:

“It is for the House to consider whether amendment 60A provides an effective indication of the purposes for which Parliament will expect Ministers to use their very broad powers under clauses 1 to 5”.

I think the House will probably agree that the noble Lord has met the necessary criteria. However, as noble Lords have said, perhaps one or two tweaks could be made. I pay tribute to the noble Lord, Lord Newton of Braintree, who we miss greatly today, because I think he has done a fabulous job on this Bill; not just because he happens to have agreed with some of the things we have said but because he has been courageous to be a Member of the government Benches and to stand steadfast on things in which he passionately believes. His amendment, which we are discussing today, is particularly important. As the Minister himself said, the intentions of the amendment are laudable and at the heart of the coalition Government’s approach. I do not know why the Minister would not feel comfortable with having regard to the objectives of achieving fairness, justice, openness and transparency being in the Bill. As the noble Lord, Lord Pannick, said, other words have been included in the Bill that the noble Lord, Lord Phillips, might say were otiose. It is a “belt and braces” approach. We would feel a lot more comfortable if the Government were able to accept the excellent amendment of the noble Lord, Lord Newton.

In relation to the amendments tabled by my noble friend Lady Hayter, she has also done some sterling work during the passage of the Bill. Something that she has pressed for throughout is for Ministers to have regard to the purpose for which the bodies were created in statute. The Minister has moved a long way towards that and it has largely been accomplished. I, too, have received some excellent briefing from the World Wildlife Fund, especially in relation to its concerns on behalf of the Marine Management Organisation. We should like to have further clarification from the Minister on that point.

[Lord Lester of Herne Hill]

Unfortunately, I was not able to be here when the Minister spoke. Therefore, strictly I am being unmannerly in saying anything at all, but if he and the House will permit me to make a couple of brief remarks, I would be grateful to do so. No one is looking cross, so I will continue, briefly. I regard Amendment 60A as an important step forward. I do not think that Amendment 61A on independence will be necessary in the light of the changes that we made in Committee and the safeguards that we put into Clause 16 on restrictions on ministerial powers. Those deal with the necessary independence criteria and seem to be adequate.

With regard to the amendments of the noble Baroness, Lady Hayter, I should be grateful if the Minister could clarify whether when his Amendment 60A refers to,

“improving the exercise of public functions”,

it is intended to mean the functions as defined in the legislation creating the body. If that is right, then it seems that what the noble Baroness, Lady Hayter, is seeking to achieve, with which I agreed at Second Reading, is achieved. The Minister, in making the order, will have to have regard to the aims and objectives of the body as they are specified in legislation. For example, the Equality and Human Rights Commission’s aims and objectives are defined in the Equality Act 2006. I assume that, when any change is made in relation to that body by delegated legislation, the Minister, in having regard to improving the exercise of the commission’s public functions, will have regard to those public functions as prescribed in the equality legislation. It could not really be otherwise because the functions are those defined by Parliament in that Act. If he could clarify that that is so, I do not think that the amendment of the noble Baroness, Lady Hayter, would be necessary.

On Amendment 60AB, in the name of the noble Lord, Lord Newton, again, it seems that openness and transparency are meant to be dealt with by the super-affirmative procedure itself and the requirements that the Minister makes. I thought that we had dealt with fairness and justice in the changes that we made to Clause 16 when we were dealing with restrictions on Ministers’ powers, which were to achieve the rule of law and fairness in doing so. I do not regard those as necessary amendments. I am grateful to have been listened to.

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[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.

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[Lord Taylor of Holbeach]

My Lords, this has been an important debate and probably gets to the nub of how this particular Bill can be handled by Parliament and how the secondary legislation which it empowers can be properly scrutinised. I thank all noble Lords who have taken part in it.

In particular, I hope I can reassure noble Lords that the bespoke scrutiny process that the Bill provides for is the proper one for Parliament, giving Parliament proper input into the shape of the secondary legislation. As noble Lords will know, it has been specifically designed for the Bill and included in government amendments. I am grateful for the support of my noble and learned friend Lord Mackay of Clashfern, who has been prepared to give advice on the Bill and the particular constitutional challenge that it has presented, and for the support of my noble friends Lord Blackwell and Lord Eccles for the way in which they have recognised that the process that now exists in the Bill provides for a proper scrutiny process.

I start with Amendment 69, which was first debated in Committee on 9 March. I do not apologise for in effect repeating my remarks from that debate as this amendment is quite technical in nature. It would 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. While Clause 11 states that a Minister “may” lay a draft order and explanatory document, it would in practice not be possible to make an order without following this procedure. Our current drafting reflects the fact that, following a period of consultation, the Minister is not obliged to proceed with the proposal. To my mind, this appears right and proper. I think my noble friend Lord Lester of Herne Hill indicated that this was his interpretation of the current wording.

On Amendment 69AA, tabled—

[Lord Lester of Herne Hill]

My Lords, I am grateful to the Minister and sorry to interrupt. I was trying to grasp why one needed a discretion, and the Minister has indicated that one needs one because not every order will be required to go through this procedure. That is why it says “may” and not “must”. If that is the position, then I understand it.

[Lord Taylor of Holbeach]

My Lords, I can confirm that every statutory instrument will have to be accompanied by an Explanatory Memorandum. That is very important if a statutory instrument is proceeding under this Bill.

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[Lord Hunt of Kings Heath]

The next subsection uses “must”. I know that this is a very familiar argument, but it is quite clear that “must” is often used in legislation and I do not see why it is not used in this case.

[Lord Lester of Herne Hill]

I am in more of a muddle now than I thought I was. Clause 11(1) proceeds on the basis that,

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

That is the premise. If that is the premise, surely the Minister will have to lay a draft order and an explanatory document. If that is the position and there is no scope for discretion at that stage—because he or she has already made the determination that it is appropriate to proceed—I do not understand why it does not say “shall” or “must”. It says “must” elsewhere and it seems to me that it is a situation where it is a “must” and not a “may”. Maybe I have got it wrong.

[Lord Mackay of Clashfern]

My Lords, the point that is covered by “may” rather than “must” is that, in the light of the consultation, even if the Minister wants to make an order, he may well think it is right to do something else first; for example, have further consultations and make modified proposals before he proceeds with the order. That is why, in this context, the word “may” is often used when many of us might have thought it was going to happen anyway. That is the reason and I believe it is a good reason.

Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 7th March 2011 Lords Chamber

“Later, a spokesman for the Church Commissioners said preparations for the sale would continue while the review group considered other options. ‘We will continue with the proposed sale, on the timescale of a sale by auction next summer, while the working group continues to meet and come up with ideas. We will engage with any proposals they make, and consider them, but meanwhile the preparations for the sale of the paintings continue’”.

[Lord Lester of Herne Hill]

I hope that the noble Lord will not think that what I am about to say is in any way discourteous, but he plainly has a bee in his bonnet. He has spoken about it now for over 10 minutes and we have got the point. I wonder whether it is really necessary to read out quotations, as he has been doing, when we understand his point that the Church Commissioners should be within the Bill.

[Lord Howarth of Newport]

I feel deeply advised by the noble Lord, Lord Lester. I was at the point of concluding and I appreciate that I have detained the Committee longer than I should at this stage of the evening, but a number of noble Lords feel that we are talking about important issues. There are other, better ways for the church to raise £500,000 a year. That the Church Commissioners are contemplating doing it in this way is disgraceful. To protect the wider national interest from these depredations, I support the amendment.

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[Lord Deben]

I promise not to hold your Lordships' House any longer, so I shall reply specifically to that. If I felt that the Church of England had carried through its necessary duties in a way that was commensurate with its great heritage, I would not be supporting the amendment. If the argument of the right reverend Prelate were made by anyone else, no one would take it seriously. If anyone said, “I am very sorry. I am now running a business and it is really very difficult for me to keep this house as it is”, people would say, “I’m afraid that is your responsibility; that is what happens if you have been given the house; you have to look after it properly”. It is all right arguing about the churches, but you cannot make any money out of the churches.

[Lord Lester of Herne Hill]

I am a Jewish atheist and, therefore, have no special interest, but I regard what the right reverend Prelate the Bishop of Leicester has said as totally cogent and convincing. I believe that the question he has asked has not been addressed by the noble Lord or by the noble Lord, Lord Howarth: who is to decide, the church under the separation of church and state, or a Minister? Unhesitatingly, I agree with every word that the right reverend Prelate has said. When I listen to noble Lords talking about palaces, I am reminded of the absurd and pompous discussions we had about judges’ lodgings and the notion that High Court judges could not be judges unless they were insulated from the public and lived in those amazing country houses. This is exactly the same argument; it is reactionary and I do not believe that the law of charity or the other mechanisms do not adequately protect the public interest.

[Lord Deben]

I say to my noble friend that I have never claimed that bishops should live in these palaces. I do not want them to live in these palaces. The noble Lord, Lord Howarth, thinks that, but that is not my argument. My argument is that the Church of England has a specific role in our society which involves accepting that it has a duty of care of that which it largely has received and did not itself create; someone else created it and it was handed on. The fact is that the Church of England has failed. Of course, it does not sell the churches; no one wants to buy medieval churches; it sells the things it can make money out of. Therefore, I unhesitatingly say that it will be very much better for the Church of England if a Minister were able to remind it of its duty, not just to the moment, not just to the future, but to the past, and its role, dependent on the fact that it is the Church of England; and if it forgets that, many of us will have to change our minds about its place here and in the establishment.

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[Lord Lester of Herne Hill]

My Lords, I, too, have put my name to this amendment and the others in the group. As the noble Baroness, Lady Thornton, has already mentioned, I did play a part when we were enacting the Equality Act 2006, the legislation which provided safeguards for the Equality and Human Rights Commission when it was being set up. The particular safeguards that we negotiated when the noble Baroness, Lady Ashton of Upholland, was the Minister were, first, that the Secretary of State should pay to the commission,

“such sums as appear to the Secretary of State reasonably sufficient for the purpose of enabling the Commission to perform its functions”.

The second one provided that the Secretary of State,

“should have regard to the desirability of ensuring that the Commission is under as few constraints as reasonably possible in determining—

(a) its activities,

(b) its timetables, and

(c) its priorities.

The third concerned the merit appointment of the commissioners. Those safeguards were put in because originally the Bill would have allowed Ministers to be very interventionist in relation to the commission. The then Government showed what I think was open-minded wisdom in realising that these safeguards were needed. So naturally I was concerned when I saw that the commission was in three schedules and, indeed, in Schedule 7, too.

I pay tribute to the patience of Ministers, but especially of their civil servants who have to be even more patient, in discussing the kind of safeguards that are needed not only in relation to this commission but also to any other bodies that are subject to the powers contained in the Bill. We are now very close to agreeing on general safeguards, without which I would have very great concerns, particularly in relation to the commission. But I am not quite in a position to tell the Committee what I think might be the safeguards that would be an improvement on Amendment 175, which is the amendment that the Committee has in effect already approved. It is important that these safeguards are put in place during the Committee stage in order that we know where we are when we get to the Report stage.

The particular safeguards that I think are very important for this commission are, first, safeguards of its independence when it is performing a judicial function, as it does, of course, when for example it is deciding whether to find someone liable for unlawful discrimination. It has to act independently and impartially in doing that. Secondly, the commission has oversight or scrutiny functions and can bring legal proceedings. Often those proceedings are brought against government departments, so it is important that Ministers should not be in a position to try to nobble the commission or persuade it not to perform its strategic law enforcement functions. Thirdly, it is important that there should not be overkill; that sledgehammers should not be used to crack a nut.

If those safeguards were in place, the Equality and Human Rights Commission would be quite wrong in suggesting, as it has in its latest briefing, that it should be outside the Bill altogether. Provided those safeguards are in place, the commission should not be immune from the kind of changes which it would be sensible to make and which are indicated in the briefing that the Government have published. Unfortunately, we do not yet have the consultation paper, but we have the benefit of a briefing note from the Government which indicates that they consider that there is a clear need for an independent equality regulator and a national human rights institution, and that the original aims of the commission are very much in line with the coalition Government’s new approach on equality as set out in the equality strategy, Building a Fairer Britain—I say amen to that.

The Government have also made it clear that difficulties in the transition process from the old commission and the breadth of the new commission’s duties have contributed to the underperformance of the commission to date, referring among other things to the report by the Joint Committee on Human Rights, to which I was party, as well as to the Comptroller and Auditor-General and the Public Accounts Committee. That is a good reason why the Government, although they have decided to retain the commission—I am delighted by that—wish to reform it. They have also said that they want the commission to become a valued and respected national institution focusing on its core role as a strong, modern equality regulator and UN-accredited national human rights institution but being able to show that it is using public money wisely. I do not want to wash linen in public, whether clean or otherwise, but there is no doubt that there have been arguments between the commission and the Government when the Government have sought to ensure proper financial regulation and accountability and so on and the commission has asserted its independence. I suppose that I can claim to be one of the great-grandfathers of the commission since I was there even in the 1970s when we first set up the EOC and the CRE. I think that there is a difference between self-government, which provides the independence which is needed, and irresponsibility when it comes to financial control. Therefore, provided the safeguards are in place, I think that the commission has to be accountable—I am sure that it would not disagree with this—when it comes to value for money.

What I suggest this evening—or rather this morning, since we have now just passed midnight—is that we should not proceed further with this subject other than to listen to the Minister, because we need to get the safeguards in place as soon as we can. Those safeguards are generic; they are to apply not only to the commission. Once they are in place, I believe that the Government’s aims will be legitimate and that we can proceed further.

Lord Boswell of Aynho: My Lords, it is indeed a very late hour, and I rise only briefly to thank the noble Baroness, Lady Thornton, for raising this issue in quite moderate terms. I also thank my noble friend Lord Lester for the way in which he has nuanced it in relation both to the judicial or quasi-judicial activities and responsibilities of the Equality and Human Rights Commission and to the need for what might be termed a proper look at administrative reform, subject to the necessary safeguards.

I have had a developing interest in this matter over a number of years. At one stage in another place, I held a Front Bench brief on behalf of my party for disability issues at the time when the first discussions were taking place about a coalescence of the various bodies. I also had, for separate and unrelated reasons, an interest in both gender and racial equality issues. I supported, and I am very glad that we have effected, the merger of these various bodies. However, just as in relation to the previous amendment we discussed I bear no malice towards the Church of England in suggesting its inclusion in the Bill, I bear no malice towards the Equality and Human Rights Commission in suggesting that its position should be maintained within this schedule.

We need to concentrate on its main responsibilities while preserving its independence. Having had, because of those Front Bench responsibilities, dealings with Trevor Phillips, for example, at the time these bodies came together, and a number of constructive discussions about this, I do not think things have quite gelled as they might have done. There is more work to be done in taking the inefficiencies out of the system and in concentrating on core business. However, I would not like that to be interpreted by the Minister or anyone else as code for saying that there is no role for the EHRC. In the previous Equality Bill, when I had become before my retirement from the other place a Back-Bencher, I had immense support from the EHRC on some of the issues—for example, in introducing a long and complex amendment about a principles clause, which did not commend itself to the previous Administration, and also, indeed, in suggesting that there might be a human rights responsibility alongside the public sector equality duty.

As my noble friend Lord Lester said, there are some very important points about turning the ability of the commission to operate independently where there are defects, or arguments about defects, in the public sector. That integrity has to be maintained. The basic job which the commission was set up to do is worthwhile. We need to make sure that we clear out of the way any of the clutter and that that duty is clearly and effectively discharged.

Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Monday 28th February 2011 Lords Chamber

[Lord Goodhart]

My Lords, I am extremely grateful to my noble friend Lord Taylor of Holbeach for informing us of the removal of Schedule 7 and Clause 11. I was seriously concerned about this matter because I was until the general election the chairman of the Delegated Powers Committee, and I think I am its only surviving former chairman. As it was drafted, the Bill gave power in Schedule 7 and Clause 11 for the Government to do all sorts of things whenever they decided to do so. It was entirely uncertain, and whenever I looked at it I saw in my mind the quotation from King Lear:

“I will do such things, what they are yet I know not, but they shall be the terrors of the earth”.

What is now proposed is broadly within the standards recognised by your Lordships’ House for delegated powers and I am very pleased that this difficulty is over. It will cut a very substantial amount of time from what we would have expected.

[Lord Lester of Herne Hill]

My Lords, the Minister was kind enough to refer to the noble and learned Lord, Lord Mackay, and myself. The noble and learned Lord, Lord Mackay, is sorry that he cannot be here today, but I explained to him what I would like now to say. We are delighted that over the past seven weeks discussions have continued with members of the Civil Service, the Cabinet Office, and so on, on what to do about Amendment 175. My noble friend Lord McNally, who is even more optimistic than I am, said seven weeks ago that he hoped and believed that we would be able to come to a satisfactory arrangement on Amendment 175, and I share his hope still. It is extremely important that this is settled by the next day this Bill is in Committee, because it goes to the architecture of the Bill. Although we are debating details today, the House will need to be quite sure that the safeguards in Amendment 175, or something very close to them, are in place before the Bill leaves Committee. Otherwise, we will be in the position of someone trying to cross a river and not knowing whether a stepping stone is solid or slippery.

Motion agreed.