Public Bodies Bill [HL]

Lord Taylor of Holbeach Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Taylor of Holbeach]

My Lords, I rise to speak to the Government’s amendments in this grouping. I am delighted to have the chance to debate these amendments which, as my noble friend Lord Lester has pointed out, are crucial to maintaining Parliament’s confidence that these powers will be used effectively and appropriately. I am encouraged by the level of consensus on the objectives of these amendments, along with those in subsequent groups that have been tabled with the aim of strengthening the framework in which these powers will operate.

I am determined to knock this Bill into shape. We have heard a number of contributions that could be considered to be Second Reading speeches, and we have had to go over ground covered at Second Reading. I do not hesitate to revisit this matter because it is important to reassure the Committee that one cannot sit in this House without being aware of the need to get the balance right between Parliament and government.

I thank my noble friend Lord Renton of Mount Harry for his contribution. He recognised that the Government needed to tackle this problem of public bodies efficiently and effectively because the public expect that of Parliament. However, I understand that Parliament itself, having set up bodies by primary legislation, feels that it needs its say in the process of reorganising public bodies, in specifics and in general.

My noble friend Lord Newton asked that I recognised the difference between explicit and implicit wording in the legislation. I understand that; it is a valuable point and I am grateful to him for making it.

I cannot go all the way suggested by the noble Lord, Lord Clinton-Davis, who asked me to withdraw the Bill. That is a big ask, if I might say so, and I hope that he will understand that I might not be able to meet it. I have to be honest; I do not think that I will be able to meet all the views expressed in this debate. The noble Baroness, Lady O’Loan—she is not in her place at the moment, unfortunately—took a fundamentalist view of the use of legislation of this type to try to deal with this matter. However, from the contributions of the noble Baroness, Lady Andrews, and the noble Lord, Lord Soley, I felt that they wanted some success out of the Bill. It would be wrong of me not to say that I listened to their contributions with great interest, as I did at Second Reading. I noted, too, the contribution of the noble and learned Lord, Lord Lloyd of Berwick. I will refer to the contribution made by the noble and learned Lord, Lord Woolf, and to other contributions on particular aspects of the subject where I am grateful for the elucidation that we received.

I said at Second Reading that I would seek to amend the Bill to safeguard the independence of public bodies in exercising certain functions. Government Amendment 108 does just that by amending Clause 8 to ensure that Ministers consider the need for functions to be exercised independently because they require professional or specialist expertise or impartial advice in respect of Ministers’ policy, or because they involve establishing facts in relation to scrutiny of Ministers’ actions. That set of amendments goes back to the Statement that I repeated in this House—if I remember correctly, it was 14 October—made by my right honourable friend Mr Francis Maude, as to the tests applied to public bodies. That must be placed on the face of the Bill, so that it is clear what test the Government apply in determining the validity of the independence of public bodies because of their functions.

The Delegated Powers and Regulatory Reform Committee’s report on the Government’s amendments states that the additional safeguards in Amendment 108 are still too limited. We take the report seriously and thank the committee again for its continued contribution to the debate on the Bill. On the important subject of safeguards, our amendments represent a proportionate response to the committee’s original concerns. We will of course consider further the detailed points raised in the committee’s second report and work with Peers to meet their concerns. On regulatory functions, the Government have already made it clear that they will not use the powers conferred by the Bill to make changes to network regulatory functions, and that such an exclusion is not necessary in the Bill.

In response to concerns raised on Second Reading, I have also tabled government amendments to make it clear that the necessary protections which the Minister must consider to be satisfied include the independence of the judiciary. I would like to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. However, given the concerns raised, I have included a specific reference to that principle.

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[Lord Taylor of Holbeach]

My Lords, these amendments of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt, would have the effect of time-limiting the Bill for a period of five years following Royal Assent. After this time the Bill would expire and Ministers would no longer be able to make use of the order-making powers within it to make changes to public bodies. I recognise, as the noble Baroness did when presenting them to the Committee, that these amendments have their origins in the Second Reading debate and the contributions of a number of my noble friends explaining why they thought that a sunset clause might be a good idea. The Constitution Committee also suggested that in its report, as well as suggesting that the Bill’s order-making powers are broad and not balanced by appropriate safeguards and parliamentary scrutiny. That was its position.

The government amendments address these concerns. They protect the independent exercise of important public functions and give Parliament an enhanced role in scrutinising orders made using the Bill. In doing so, they provide great reassurance that both this and future Governments will use the Bill’s powers in the responsible and considered manner that I know your Lordships would expect.

By sunsetting the Bill as the amendments propose, Parliament would be denying the opportunity to use the Bill to make changes to public bodies following the five-year period. This seems to me a disproportionate response. I recognise noble Lords’ concerns about the Bill—and we have acted to address those concerns—but I also recognise the wide support for the policy intent not only in Parliament and among the general public but, indeed, on the Benches opposite, as the noble Baroness, Lady Royall, said in her remarks about the need to review public bodies.

The Government’s preferred approach is to pass a Bill which allows the flexibility to make changes to public bodies quickly when it is in the public interest, but which also ensures the protection of important public functions and allows for full consultation and parliamentary scrutiny. However, there is a strength of feeling in the Committee that the Bill and the powers in relation to the relevant schedules should not be open-ended, and I must take account of that.

We could sunset in relation to the bodies in Schedules 1 to 6 at five years, as these relate to agreed proposals which will be implemented within that timeframe or, in the majority of cases, much sooner. However we accept that that is not noble Lords’ main concern, and that we therefore have to look again at the powers in Clause 11, which relate to Schedule 7. If it is not possible to provide the reassurances needed, we will have to look to the possibility of further primary legislation in five years’ time to effect any future reforms—and I am sure that noble Lords would look forward to the prospect of another Public Bodies Bill with great anticipation. I therefore ask the noble Baroness to withdraw her amendment so that we can consider my suggestions.

[Lord Soley]

The Minister now understands clearly—and probably has done from the beginning—that there is acute concern about the Bill. He also understands, which perhaps other people do not immediately understand, that there is a great deal of support for some structure or agreement on how we can reform these bodies. Is it not possible to perhaps come back to the House on the sunset clause and, in the mean time, talks could take place between the parties and the Cross-Benches on what would be a good model to bring before the House in five years’ time? We could end up with better legislation, even if it takes five years to get it.

[Lord Taylor of Holbeach]

I thank the noble Lord, Lord Soley, for that suggestion. It is well intentioned and reflects a course of action which is open to the Government. At the moment, I believe there are ways of sunsetting within the Bill as it currently stands which might be used positively to enable the Bill to be used to better effect. I should like to use the time between now and Report to be able to discuss that, which is why I am asking the noble Baroness to withdraw her amendment. This matter has been raised in our discussions outside the Chamber.

[Lord Adonis]

Did I understand the Minister to say that the further conversations he would undertake with my noble friend would concern the possible sunsetting of the entire Bill? He elided his comments about some sections of the Bill with a comment that he would be prepared to discuss the sunsetting of Clause 11. I think that my noble friend’s concern goes considerably wider than Clause 11. Could he clarify what he is prepared to consider sunsetting?

[Lord Taylor of Holbeach]

I am prepared to consider everything. I do not rule anything out, because that is the wrong way to approach discussions. I gave an indication, however, of the implications of different sunsetting. Sunsetting the whole Bill would mean that we would need another Bill in five years, if it was determined that that was necessary. Sunsetting clauses of the Bill is a different approach. I have also made it clear in my response to the amendment that the Government are looking at the interaction of Clause 11 and Schedule 7, and at whether sunsetting might help relieve some of the anxieties, well expressed across the Chamber, about those sections. I hope that I have been pretty open about where we are looking at sunsetting. I assure the noble Baroness that, should she withdraw her amendment, we would enjoy discussing this matter with her and other Members of the House who have expressed an interest.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the Minister for his response to my amendments. I think that he has said that he is willing to consider sunsetting the whole Bill as well as specific clauses within it. He is nodding his head, so I take it that that is so. I shall therefore not press my amendments. I look forward to discussions with the Minister and the Bill team. My noble friend Lord Soley suggested that we might try to do this on a whole-House basis. I realise that one does not have representatives from the Cross-Benches, but if we can ensure that someone from those Benches who is particularly concerned about this aspect of the Bill is present, together with somebody from the Liberal Democrats and the Conservatives—because they would perhaps have different views—I shall willingly withdraw my amendment.