Public Bodies Bill [HL]

Lord Norton of Louth Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Adonis]

My Lords, the noble Baroness has made an immensely powerful case and the House is deeply indebted to her and her committee for the work that they have done. Essentially what is being introduced here is what on the continent would be called a decree-making power. There is now a capacity well beyond the usual use of ministerial orders for the Government to legislate by decree. One needs only to look at the scope of the Bill and the headings of Clauses 1 to 6 to see how significant this is. Clause 1 is entitled “Power to abolish”—that is, to abolish wholesale a whole string of organisations listed in the Bill which have been established under a proper statutory procedure. Clause 2 is headed “Power to merge”; Clause 3, “Power to modify constitutional arrangements”; Clause 4, “Power to modify funding arrangements”; Clause 5, “Power to modify or transfer functions”; and Clause 6, “Power to authorise delegation”. This is essentially a wide-ranging, decree-making power which, if the Bill is passed in its current form, Parliament will be conferring on the Executive. This has very significant constitutional implications, and the seriousness with which the House has been addressing the Bill is well merited in this case.

My noble friend’s amendment looks to me to be the minimum necessary to ensure that this decree-making power—because that is what it is—is kept within proper bounds and that there is proper parliamentary scrutiny, including a requirement in each case for the Government not simply to explain their reasons but to explain why they are seeking to reject the expert opinion of a committee of both Houses expressed upon proposals put forward by the Government. It seems to me that this is exceptionally important. The amendment of my noble friend Lord Hunt would require the Government to explain why they are not prepared to accept the reasoning of a committee of either House and, where that committee recommends for good and sufficient reasons that proceedings on an order should not take place, it requires the authority of the two Houses for proceedings then to take place. It is called a super-affirmative procedure and, as always when we are discussing new things, it appears to be a significant enhancement of parliamentary authority. However, looked at another way, conceptually this is putting a proper curb on a decree-making power, which in the opinion of the noble Baroness and her committee is probably one that should in any event be vested in the normal legislative process.

In order to see that the Bill is kept within proper constitutional bounds, I believe that the prerogatives of your Lordships should be respected. A move of this kind is essential or we will be faced with claims that we, as a House, have given the Government a power to legislate by decree without even the capacity for the recommendations of committees of our own House to be properly debated before the Government proceed.

[Lord Norton of Louth]

My Lords, I shall be brief because the noble Baroness, Lady Thomas of Winchester, has said everything that I would have wished to say. I welcome the fact that the Government clearly heard what was said at Second Reading and have taken on board the comments concerning the need for the procedure to be changed so that there is a greater role for Parliament in the process. Therefore, although the Minister has heard, perhaps the problem was that we were not shouting loud enough. I welcome the moves in the right direction and the fact that we now have Amendment 118, but it raises the question of why it was not in the Bill in the first place. However, the amendment goes only so far, for the reasons that we have heard. When one contrasts Amendment 118 with the super-affirmative resolution procedure, it is clear that Amendment 118 diminishes the role of Parliament relative to the super-affirmative resolution procedure, for the reasons that the noble Baroness mentioned. Therefore, I think that the Government should take away this new clause and come back with something that builds in the role of Parliament, akin to the super-affirmative resolution procedure, so that we play the role that we should be playing.

[Lord Clark of Windermere]

My Lords, I wish to follow the noble Lord, Lord Norton, because his point about the role of Parliament is absolutely critical. In a sense, we heard the legal expert, the former Law Lord, discussing earlier today in a learned way the basic thrust of what the noble Lord, Lord Norton, and I are saying. Ultimately, we are talking about the power of the legislature and the power of the Executive, and it is very important that we pursue the lines set out by the noble Lord, Lord Norton, and the noble Baroness, Lady Thomas, who explained the matter expertly and lucidly.

I very much welcome government Amendments 173 and 174 because they elaborate and outline in much more detail the orders which follow Clauses 17 and 18, which specifically relate to the forestry commissioners—the individuals. Of course, under these powers the Bill says that the constitutional arrangements of the commissioners can be changed by ministerial edict. That raises an important point because I think we will find that at least one of the commissioners is appointed by Her Majesty. It is interesting to see whether Ministers can take this power simply by an order. I put that in a positive way for Ministers to have a look at.

I am also interested in Amendment 174 because, as I understand it, it inserts a new clause after Clause 18. I seek information from the Minister: does this mean that Clause 19 becomes redundant? Does the second part of government Amendment 174 become the new Clause 19? That appears to be the case, but I would welcome guidance on that. I shall not detain the House any longer.

--- Later in debate ---

[Lord Taylor of Holbeach]

Perhaps I may take the noble Lord back to that section of my speech which addressed this issue. I was merely making a point of observation. I think that the only statutory instrument to have been voted down in my time in this House was the casinos order. I think that it is reasonable to say that we do not do it. Whether we should is a different issue altogether. My point was that many noble Lords might welcome a debate about that, but it is surely not a question that should be resolved within the confines of deliberation on the Public Bodies Bill. The right place is in the sort of discussions to which the noble Lord referred; it is not this Bill.

[Lord Norton of Louth]

My Lords, I do not want to digress too much into academic discussion on conventions, but the fact that we have not done it does not necessarily make it a convention. For many years, MPs did not defeat the Government in the House of Commons, but it was not a convention that MPs did not vote against the Government. Just because we have not gone through with doing this—I have never accepted that there has been a convention—it does not mean that this House is not perfectly free if it wishes to reject secondary legislation. It is not, as is sometimes claimed, a nuclear option; it is a popgun option. It is perfectly open for the Government to come back with a fresh order, so I see no reason why we should not exercise our due powers.

[Lord Hunt of Kings Heath]

My Lords, that is a very helpful intervention. The Minister said “by convention”. I am afraid that I interpret that to mean that it is a convention of this House that we do not vote down statutory instruments, which I must refute.