Public Bodies Bill [HL]

Debate between Lord Pannick and Lord Maclennan of Rogart

Monday 4th April 2011 Lords Chamber

[Lord Maclennan of Rogart]

I am very grateful to my noble friend Lord Elton for making that clear. There is a difference; in fact, there are at least two differences which may be of some significance, between government Amendment 60A and my Amendment 61AZ. The first is that in my proposal the Minister should be permitted to make an order only if he considered that,

“the order will achieve one or more of the objectives in subsection (1)”.

That embodies two points; first, that there should be an expectation on the part of the Minister that the power, “will achieve” one of the purposes; and, secondly, it does not require all the purposes to be achieved by the use of the power.

The Minister referred to my amendment as being in some ways less than his, in that it refers to,

“one or more of the objectives”,

whereas, in his amendment, the Minister has to consider,

“that the order serves the purpose of improving the exercise of public functions, having regard to—”.

It appears to me that the listing of,

“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”,

is a collective, not a single test, or even one to be applied to two of these criteria. Therefore, I felt that the amendment that I had tabled was, in some ways, more realistic because it is quite often the case that effectiveness and economy are not necessarily the same and not necessarily both achievable by a measure of government. That is, it is desirable that they should all be achieved, but it cannot be certain and if there is a choice, it ought to be possible for the Minister to make that choice.

This is not a form of words, as I understand it, which just bows in favour of motherhood and apple pie; it is, as I see it, an opportunity for the Government to indicate, in the report that they will produce before Parliament considers the legislation, what it is that is moving the Government. I think it reasonable that, if they could demonstrate greater efficiency, greater effectiveness or greater economy, they should be able to say so and not necessarily have to tick all four boxes. However, this is probably a matter for construction by greater legal brains than mine and consequently, I hope that the matter might be reconsidered at a later date. I am very grateful to the noble Lord, Lord Taylor, for the changes he has proffered to the House, which are a substantial improvement on what went before.

[Lord Pannick]

My Lords, I, too, warmly welcome the amendments brought forward by the Minister. I, too, associate myself with all the tributes paid to him. I hope that the praise from your Lordships’ House does not cause him any embarrassment back at the ministry. I am a little disappointed, however, that he did not feel able to respond positively to the amendment in the name of the noble Lord, Lord Newton of Braintree, who all noble Lords will wish to see back in his place as soon as possible. That amendment would add fairness, justice, openness and transparency to the list of factors to which the Minister must have particular regard. The Minister suggested in his opening remarks that to add such concepts to the clause would impose what he described as an “abstract evidential burden”. I am sure that on reflection he will recognise that the concepts introduced by the noble Lord, Lord Newton, are no more abstract than the concepts of efficiency, effectiveness, economy and accountability that are included in his own very welcome amendment. I ask him to reflect further on the criteria in the amendment of the noble Lord, Lord Newton.