Public Bodies Bill [HL]

Debate between Lord Pannick and Viscount Eccles

Monday 4th April 2011 Lords Chamber

[Viscount Eccles]

My Lords, I should like to take this opportunity to pay tribute to Lord Colville of Culross. Lord Colville was serving on the Merits Committee when I joined it some five years ago. I am not serving on it now, of course, because I did my four years and then got cycled off. Lord Colville taught me an enormous amount about consultation. It was his subject: he knew it from A to Z.

The Merits Committee of your Lordships’ House considers more than 1,000 orders every year. It looks at the Explanatory Memoranda. I can tell you for sure that the members of the committee usually go first to paragraph 8, the consultation paragraph. There is an enormous amount of expertise in your Lordships’ House in assessing not only whether consultation has been properly done and whether the 12 weeks were sufficient but also what has been left out or might have been elided. Noble Lords are extremely skilled in going back to departments and questioning the presentation of these paragraphs. That also applies to the paragraphs in the impact assessment, if there is one required.

I imagine that the orders in the Bill, when it becomes an Act, will be submitted to a committee of this House as well as, presumably, to a committee of the other place—that is clear from the language in the Bill. This clause includes, as well as paragraphs (a) and (b), paragraph (g), which says,

“such other persons as the Minister considers appropriate”.

If I am allowed from the Back Bench to give an assurance, I can give noble Lords a little Merits Committee assurance that, if a committee of your Lordships’ House considers that the Minister has missed out on who it is appropriate to consult, then his department will be pretty sharply told. I hope that we do not underrate the capability of this House to make sure that consultation is done in a really workmanlike manner. Of course, it is never satisfactorily done because there are winners and losers at the end of consultation. Nobody is completely satisfied for ever that the consultation has been properly done but if there is a way of monitoring consultation it certainly exists in your Lordships’ House.

[Lord Pannick]

My Lords, I support Amendment 65, in the name of the noble Lord, Lord Hunt of Kings Heath, for three reasons. First, these remain very broad and extensive powers to abolish or modify a public body. It seems essential that there should be the broadest of consultation obligations so that the Minister is properly informed before a decision is taken. Secondly, public consultation does not require considerable expenditure if modern methods of communication are used—the point already made by the noble Lord, Lord Maclennan of Rogart.

Thirdly, if these powers are to be exercised in relation to public bodies—we are talking about public bodies—surely it is right and proper that the Government should consider the comments of all sections of the public who feel that they have something to say. Indeed, if there were to be no specific consultation duty in relation to members of the public and nevertheless a member of the public, knowing of the proposal, submitted representations to the department, then I assume that the department would consider them and take them into account in reaching its conclusion. With respect, I do not share the view of the noble Viscount, Lord Eccles, who drew attention to Clause (10)(1)(g), which provides that the Minister must consult,

“such other persons as the Minister considers appropriate”.

It seems to me highly desirable that there should be clarity in the Bill that there is an obligation to consult members of the public rather than leaving it as a discretionary matter.

Public Bodies Bill [HL]

Debate between Lord Pannick and Viscount Eccles

Tuesday 14th December 2010 Lords Chamber

[Viscount Eccles]

My Lords, I fully agree that the separation of the powers of the Executive from those of the legal profession and our courts is absolutely central to our constitution. Unfortunately, this Bill does not affect that separation because the chief coroner does not have that independence. If one reads the terms under which he is employed and what he has to do to satisfy the Lord Chancellor, the real power has been left with the Lord Chancellor.

[Lord Pannick]

My Lords, I am puzzled by the speech of the noble Viscount, Lord Eccles. As I understand the Act, the chief coroner will enjoy considerable independence. He or she will be appointed by the Lord Chief Justice and will report to the Lord Chancellor. If the Lord Chancellor were to tell the chief coroner how to perform the substance of the duties, I have no doubt whatever that the courts would uphold the independence of the chief coroner under the Act.

The other point made by the noble Lord—

[Viscount Eccles]

On that point, the noble Lord, Lord Pannick, is correct. But the appointment can be made by the Lord Chief Justice only with the approval of the Lord Chancellor. All my experience of public appointments has shown that the power of appointment rests with the Lord Chancellor.

[Lord Pannick]

I remind the noble Viscount that the same is true of judges of the Supreme Court. There is no suggestion that people cannot be independent in their judicial role because the Government have a responsibility for their appointment or for the appointment of their staff. The performance of the function is what matters. The noble Viscount said that we elect Governments so that they can deliver. I suggest to noble Lords that there are some functions that can be delivered to the satisfaction of the public only if they are delivered by an independent body. The reason for that is that the decisions they are making are either judicial decisions or quasi-judicial decisions which often concern the relationship between the individual and the state.

These points were made with great power by the noble Baroness, Lady Finlay, in opening this debate. She referred to the support given by Dame Janet Smith in the Shipman report to the creation of the office of chief coroner. Dame Janet put her finger on the fundamental point which has provided the recurrent theme in the debates in this Committee so far and will continue to be the recurrent theme of the debates in this Committee unless and until the Government change their general approach. The point was made by Dame Janet at paragraph 19.22 of her third report on the Shipman inquiry. She said that,

“if coroners and the Coroner Service are to command the confidence of the public, they must be and must be seen to be independent of Government”.

That applies also, as the noble Viscount, Lord Slim, said, to the views of the bereaved. They must have confidence in the coronial service if it is to perform its function. Dame Janet added:

“Although coroners investigate on behalf of the state, they might well reach verdicts and make recommendations unwelcome to Government”.

That point was made by the noble Baroness, Lady Miller. Dame Janet went on to say that,

“it would no longer be satisfactory for the coroner service to be administered from within a Government Department”.

But that is precisely what the Government are now proposing.

There are many functions under this Bill which the Government are seeking to bring within the Ministry of Justice, of which the role of the chief coroner is just the latest. These roles can effectively be performed only by bodies that are independent and are seen to be independent. The man or woman from the ministry simply does not know best and cannot be seen to know best. This core principle is being trampled on by the Bill. I have great sympathy for the Minister, the noble Lord, Lord Taylor of Holbeach, because the Government’s position in relation to the chief coroner is quite indefensible.