Public Bodies Bill [HL]

Lord Pannick Excerpts

Monday 29th November 2010 Lords Chamber

[Lord Hunt of Kings Heath]

My Lords, I support my noble friend in her amendments. As we have already briefly debated, Clause 1(3) is very important because it specifies which bodies and functions can be transferred from the bodies listed in the schedules. My noble friend is, first, seeking clarity and then, importantly, asking the Government questions, particularly about their ability to transfer functions to an unincorporated body of persons.

I find it surprising that the noble Lord is proposing to give himself power to give such functions to a group of unincorporated persons. It would be helpful if he could explain under what circumstances this could happen and what safeguards would be in place. In a sense we are following on from our previous debate. Will the accounts of such organisations come under the auspices of the Comptroller and Auditor-General? Will freedom of information or data protection legislation apply to the same extent as when functions are delivered in the public sector? Potentially all the functions carried out by all the bodies listed in these schedules could be transferred to such bodies. My own view and that of the Opposition is that those powers are far too open-ended. The noble Lord has said that in the end accountability is to Parliament, and that is so. However, the problem we have, as the noble Lord, Lord Greaves, has spotted, is that it is likely that even when we have orders, they will in themselves give considerable discretion to Ministers in their dealings with the functions that are encompassed by the bodies listed in the Bill.

When it comes to the orders, we have another problem. We have the Cunningham committee’s report on conventions. We debated that in Question Time this afternoon. But the noble Lord, Lord Taylor, will know that the conclusion of the Cunningham convention in relation to this House seeking to defeat secondary legislation is now disputed by the noble Lord, Lord Strathclyde, the Leader of the House, in correspondence between himself and the Merits Select Committee which has been published in the past few weeks. So we are not even sure at this stage whether the Government even accept that it is the right of this House to vote to seek to defeat the Government on secondary legislation.

Behind the amendment moved by my noble friend lies a real concern about the draconian powers being given to Ministers and a doubt whether the kind of parliamentary scrutiny currently envisaged in this Bill is sufficient to ensure proper discharge of ministerial accountability to Parliament.

[Lord Pannick]

My Lords, I should like to add a question to the series of questions put by the noble Lord, Lord Hunt of Kings Heath, and give my support for the amendment tabled by the noble Baroness, Lady Henig. Is it the Minister’s understanding that if these functions are transferred to a company limited by guarantee, for example, judicial review in the courts would apply to the exercise of those functions by such a body, and would the Human Rights Act apply where appropriate to the content of any decision taken by such a body? This is of obvious importance because if the answer is no to either of those matters, the very important safeguards that exist when the functions are exercised by public bodies would be lost.

[Lord Blackwell]

My Lords, since this is the first time that I have participated in Committee on the Bill, perhaps I should declare my interest as a board member of Ofcom. I have to admit that I am puzzled by these amendments. The purpose of the Bill is to enable the Government to bring forward over time specific and detailed proposals on each of these bodies and to put those proposals in front of Parliament. A huge prize can be won by enabling this process to be conducted as quickly and effectively as possible. If we try to box the Government in by defining all the proposals up front and limiting the scope of what the answers might be, we complicate the process in a way that will make it impossible for the Government to bring forward those proposals one by one and to have the debate around them that each will require. These amendments are self-defeating because, in trying to put the cart before the horse by asking the Government to specify what they want to do before bringing forward the detailed proposals, they would limit the Government’s scope for action.

--- Later in debate ---

I hope my noble friend the Minister will understand our proposition, not just for the removal of this institution from the schedule but for much more fundamental scrutiny of the way in which these still rather alarming propositions are being presented to the country.

[Lord Pannick]

My Lords, I add my support to this amendment and agree with all that has been said. There is a further reason why it is so essential that we retain an independent and impartial body to review the performance of tribunals; so many of the decisions of these tribunals concern the implementation of government policy, and it is government departments that are the defendants in those tribunal proceedings.

It is undoubtedly a fact today that a far greater proportion of legal rights are vindicated in tribunals than in 1958 when the Council on Tribunals was established. It will be the inevitable consequence of the reductions in legal aid that those trends are exacerbated. It is therefore even more important today than it was in 1958 that there be an independent and impartial body that supervises and assesses the performance of these judicial functions.

[Baroness Scotland of Asthal]

My Lords, it is with mixed feelings that I rise to speak about the Administrative Justice and Tribunals Council and add my voice to all of those who are urging the Minister to think again in relation to this council. What has been said by my noble friend Lord Borrie, what has been said so eloquently by the noble Lord, Lord Newton, and by the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, supported by the noble Lord, Lord Pannick, is not only correct but I hope the Minister will take comfort from the fact that he could not have been shot at by more accurate huntsmen. If he is feeling that he has been holed beneath the water, he should draw comfort from the fact that the whole House has done it and not just those noble Lords who sit behind him.

I have pleasure in rising because I am pleased to add my voice to those others. There is also, however, concern and a little sadness that I am driven to speak at all, prompted by the Government’s as yet unsubstantiated case for abolishing the council. It is sad to see the council head the list for abolition under Schedule 1.

This House will remember the debate in 2007. The noble and learned Lord, Lord Lloyd, and others are right to say there was unanimity in this House about the necessity to keep the council, the sagacity of Sir Andrew Leggatt’s report and the rightness of supporting it. The Minister may recall that the late and much missed Lord Kingsland said in relation to the then Government’s proposal that they had got it absolutely right by following Sir Andrew’s arguments. He was talking about constitutionality. The noble and learned Lord, Lord Lloyd, was therefore right to quote what was said by Sir Andrew Leggatt and to endorse it.

I was also concerned, when looking at the Chairman’s foreword for the most recent annual report of the Administrative Justice and Tribunals Council, to read:

“However, as the text of this foreword was being finalised we learned that the AJTC is to be included among the MoJ sponsored Arms Length Bodies to be abolished through the Public Bodies Reform Bill, due to be introduced in Parliament in the autumn. Whilst recognising the absolute prerogative of Ministers and Parliament to take such a decision, the outcome is disappointing and it is unfortunate that we were not included in the discussions leading to this decision. However we look forward to contributing to the debate”.

The foreword points to the fact that this council in its various forms has done sterling work on behalf of individuals for the past 50 years and has throughout been applauded for its achievements. My concern is aggravated therefore by the quality of the process undertaken by the Government in making this choice. The annual report sets out all the reasons why the council should be retained. There are many around this House who feel that the inclusion of the council on the Schedule 1 list is extraordinary.

That feeling of unhappiness is exacerbated when one considers the millions of people who may be affected by the acts and omissions undertaken by various administrative bodies which have their roles scrutinised by tribunals with the council supporting them.

I, too, agree with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, and echoed by the noble and learned Lord, Lord Howe, that if we are to go through the list organisation by organisation, entity by entity, it will take some considerable time if each body is to be given the scrutiny it deserves.

Your Lordships will know that if the council is to remain on the list, a great deal of unhappiness—not just in this House but for individuals who are adversely affected by that decision—will be occasioned. I should conclude with a view comments from Sir Andrew Leggatt himself, when talking about the Administrative Justice and Tribunals Council. He said:

“There should be one guiding principle. In origin, many tribunal functions started within the administrative process. Tribunals were established because it was clear that the citizen needed an independent means of challenging possible mistakes and illegalities which was faster, simpler and cheaper than recourse to the courts. Tribunals are an alternative to court, not administrative, processes. They will keep the confidence of users only in so far as they are seen to demonstrate similar qualities of independence and impartiality to the courts”.

His words go to the heart of why judicial and quasi-judicial bodies need additional protection, and is why I and many others support the amendment. Independence has to be established and has to be seen, felt, and tasted. If the council is removed, I add a question to those posed by the noble Lord, Lord Newton: how is that to be guaranteed if everything is invested in the department, which may be in need of challenge, assistance and advice?

I urge the Minister to say this evening that the council's name will be struck from the schedule. Then the House would not be put through the burden to vote and the noble Lord may have greater time to consider the other bodies which may or may not merit inclusion.