Public Bodies Bill [HL]

Lord Pannick Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Campbell of Alloway]

I support the noble Lord’s Amendments 1 and 175. What he said was wholly consistent with the acknowledged function of this House to protect the constitution and to amend the Bill as it goes through, to delay it and afford the other place an opportunity to reconsider or, indeed, to compromise. What the noble Lord said is wholly consistent with that. What the Opposition will say in a moment is not, so I am not speaking about the Opposition. This is a sound approach for the reasons that I have given and it was very well presented.

[Lord Pannick]

I have added my name to the amendments tabled by the noble Lord, Lord Lester of Herne Hill, for a simple reason: this is a bad Bill. It confers excessive power on the Executive. It is of fundamental importance to include in the Bill as many protective provisions as possible.

Amendment 1, read with Amendment 175, has a simple purpose. It would restrict ministerial powers so that they can be exercised only in a way that is compatible with judicial independence and human rights and freedoms; is used proportionately; and does not prevent a public body performing its functions to establish facts or to give expert advice independently and impartially. I cannot imagine that the Minister could possibly disagree with any of those well established principles. I suspect he might say that he is doubtful that such principles need to be expressed in the Bill. However, he does then need to explain to the Committee why such principles were expressly included in the 2006 Act. He also needs not merely to explain this question of precedent but to address the question of principle.

Given the breadth of the powers that the Minister seeks in the context of the Bill; given the concerns that were expressed about the scope of those powers by your Lordships’ Committee on the Constitution, of which I am a member, and by your Lordships’ Delegated Powers and Regulatory Reform Committee; and given the concerns expressed by many of your Lordships at Second Reading, it is of vital importance to identify in the Bill important constraints on the exercise of these powers. It is important for two reasons. It is important to ensure that future Ministers are as careful in their use of the powers as I am sure the Minister will be. It is also important to reassure public bodies and members of the public that we in Parliament have not lightly conferred such powers on Ministers, but rather that we have been anxious to emphasise in the Bill that there are important limits on what Parliament is willing to authorise Ministers to do.

The importance of Amendment 1, read with Amendment 175, is confirmed by the much weaker protection that the Minister is inviting the Committee to add to the Bill in his amendments. The Government’s amendments, although a welcome improvement on the original Bill, are insufficient. They simply require the Minister to consider defined matters before exercising powers. They do not—as they should—prevent the Minister making an order if and to the extent that it would interfere with the independence of the judiciary, or concern functions which require to be exercised independently of Ministers as they involve giving impartial advice or the scrutiny of Ministers’ actions. For example, government Amendment 108, which we are considering in this group, will require the Minister to consider only the extent to which the functions affected by the order need to be exercised independently of Ministers. If the functions do indeed relate to such matters, primary legislation should be required to ensure proper parliamentary scrutiny. Amendment 109, in the name of the noble Lord, Lord Lester of Herne Hill, would remove from Clause 8(2) “the Minister considers that” in relation to necessary protections.

It should not be simply a matter of the Minister forming an opinion on these matters; the Bill must provide that he or she cannot make an order if it would remove necessary protections, such as interfering with the independence of the judiciary. That would ensure—

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way. I am entirely sympathetic to what he and my noble friend Lord Lester are saying but I hope that he can help me and, I think, the House by answering the following question. I think he said that the provisions in paragraphs (a), (b) and (c) in the proposed new subsection (1) in Amendment 175 are implied by law and therefore do not need to be expressed in the statute. My noble friend Lord Lester wonders about proportionality, but by inserting existing powers in this Bill, are we in danger of shackling future legislation where those provisions are not inserted in the relevant Bill, and perhaps therefore getting into an argument that, as they are not there, they are not considered part of the Bill? I hope that I have expressed myself clearly.

[Lord Pannick]

I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional—it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.

I was dealing with the Minister’s amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,

“must uphold the continued independence of the judiciary”.

It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.

As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders—a matter to which I am sure that we will return later in Committee—it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.

I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.

[Lord Clinton-Davis]

If the Government were to prevail so far as the amendment was concerned, could the issue be raised again in the courts? I think it could.

[Lord Pannick]

I am sure that there would be ample room for argument in the courts. I am concerned that we do not leave matters of this importance, in relation to a Bill that confers such exceptional powers on the Executive, to legal argument for the future. It is our task and our responsibility to ensure that these matters are clearly stated in the legislation that we are considering.

[Baroness Hayter of Kentish Town]

My Lords, I endorse the words of both noble Lords, Lord Lester of Herne Hill and Lord Pannick. I urge the Minister and the Committee to do the same.

Amendments 14 and 107 seek to ensure that, in any move to abolish, merge or alter the various organisations listed in the various schedules, the Minister must have regard to the original powers or objectives laid down in law for those bodies. It would therefore not be enough to say simply, “We can save money by these changes”, although I always agree with saving money. The amendments would make it necessary to consider more than just the need for specialist and technical expertise, much though I also support that; and more than simply independence from government, as has been spoken of, much as I also concur with that.

Parliament needs to be satisfied that the raison d'être of each body—its objective, as set down in statute—will be protected and continued under whichever body takes over from the abolished, reformed or merged organisation. I would like to give four brief examples listed in the schedules where legislation has been passed, including through this House, to give powers or duties to those organisations. We need assurance that, in any change to their status, the very purpose and duties for which they were set up should be retained, even if carried out in a more resource-efficient way.

I start with the Legal Services Board; I declare an interest as chair of the Legal Services Consumer Panel, which is funded by the Legal Services Board. The Legal Services Act 2007 requires the establishment of the board, and says that it,

“must … act in a way … compatible with the”,

Act’s “regulatory objectives”, which are about,

“protecting and promoting the public interest … supporting the constitutional principle of the rule of law … improving access to justice … promoting competition in the provision of services”,

and,

“encouraging an independent, strong, diverse and effective legal profession”.

The Act also demands that the board promotes adherence to the professional principles of lawyers, which are to,

“act with independence and integrity … act in the best interests of their clients”,

and,

“comply with their duty to the court to act with independence in the interests of justice”.

This goes further than judicial independence—important though that is; those objectives would need to be retained. My amendment would ensure that those objectives were still met if there were any alteration to the board’s set-up. They are absolutely central to the administration of justice.

--- Later in debate ---

[Lord Pannick]

After a two-hour debate on matters of fundamental importance, does the noble Lord accept that it would be of value for the Committee’s opinion to be tested so that the Minister—whose open attitude is much admired by all noble Lords—and the Government generally are left in no doubt of the Committee’s views on the need for further essential safeguards to be written into the Bill?

[Lord Lester of Herne Hill]

I am grateful to the noble Lord for asking a question which I am trying to answer as I speak. The Minister will have heard everyone around the Committee. I am sure that some of us recall what was once said by Archbishop William Temple in a famous lecture: “Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it”. The Minister has heard the voice of a united Committee, and I am going to be pusillanimous and much criticised for my moderation in not dividing it. However, I do so as a friend and supporter of the coalition. Unless we get the amendments that have been asked for on all sides of the Committee, this Committee will act as the ticket collector rather than myself. If we are trying to achieve a constitutional Bill that we can pass, the right way to do that is not by flexing our muscles on Amendment 1 and proceeding on that basis.