Public Bodies Bill [HL]

Lord Taylor of Holbeach Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Baroness Andrews]

My Lords, one of the concerns that is so blindingly obvious—and this refers as much to Kew as to any other body on Schedule 7—is that the bodies listed on the schedule have no idea why they are on it. One of the reasons for their diffidence is simply that there is nothing for them to say, other than to open an opportunity for the Government to explore further action which may not be necessary, appropriate or positive, or in any way in the interests of the organisation. That is the real problem and why people are so inhibited about coming forward in relation to the Bill.

[Lord Taylor of Holbeach]

My Lords, I speak to the Government’s amendments as well as the other amendments in this group. The amendments are all concerned with the mechanisms by which the Bill enables the Government to make changes to public bodies through secondary legislation.

The group includes Amendment 121, tabled by my noble friend Lord Lester and the noble Lord, Lord Pannick, and Amendments 3A and 123, tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Royall. In addition, it includes a number of government amendments and consequential amendments tabled by the noble Lord, Lord Greaves, to which he spoke with his usual eloquence. These amendments reflect the commitments that I made at the end of the Second Reading debate on 9 November with regard to consultation and parliamentary scrutiny.

In this debate, I will discuss in particular government Amendment 114, which relates to orders made under the powers in Clauses 1 to 6. Amendment 127 replicates this amendment in relation to orders made under Clause 11, and Amendment 169 has the same effect in relation to an order made under Clauses 17 or 18, to which the noble Lord, Lord Clark of Windermere, referred. We also intend to create similar provisions in relation to the powers conferred on Welsh Ministers by Clause 13, and we are in discussions with the Welsh Assembly Government about how best to achieve this.

I am extremely encouraged by the level of consensus that has emerged across the Committee. We are clearly more united than divided on what needs to be done to improve the Bill, and I hope to continue in that spirit through this debate. During Second Reading, the House clearly expressed its feeling that the types of change that the Bill would enable should be subject to a period of consultation with interested parties outside Parliament. In many cases, departments have already undertaken, or are undertaking, such consultation—including the Defra consultation on governance arrangements in English national park authorities and the Broads Authority. That consultation runs for 12 weeks, as of 9 November. Sometimes there is independent review, such as the Dunford review of the Children’s Commissioner. There are many such plans. However, in addition, we are happy to place in the Bill a requirement to consult.

Perhaps I may comment on the points made by the noble Lord, Lord Clark of Windermere. The forestry clauses relate only to England, so the issue of the devolved Administrations, Ministers or Parliaments does not arise. However, I guess that the reason why in many cases references are to Ministers rather than to Parliaments is that Ministers are in turn accountable to their Parliaments. This would be the normal way in which Ministers talk to Ministers, rather than Parliaments to Parliaments. I hope the noble Lord is reassured as regards the Forestry Commission.

[Lord Clark of Windermere]

On that specific point, the commissioners are appointed at a GB level. The Minister is quite right on that. However, once appointed, they then take over devolved responsibilities as chairs of the national committees of Wales, Scotland and England. Although the Bill applies only to England, I am a bit perplexed, because none of the commissioners is appointed specifically to look after England. There is a lot of work to be done in teasing out how we deal with this aspect.

[Lord Taylor of Holbeach]

I hope that when we come to those clauses of the Bill, we will be able to discuss this and make it clear. I am sure that that is what the Committee would wish. We will have an opportunity to go through this.

The question was raised about the timing of the consultation period. I reassure noble Lords that the 12-week period is a 12-week period of consultation. Amendment 118 covers the process after consultation and states:

“The Minister may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began”.

That means that he cannot present a summary of representations received in the consultation before the 12-week period is over. I hope that noble Lords are reassured on that point.

We want to make the consultation effective. I hope that I can reassure my noble friend Lord Greaves on that. The Government have nothing to fear from being open on the matter. The noble Lord, Lord Hunt, went rather over the top with his allegation of a climate of fear across government. I would be prepared to take up any evidence on this that he presented to me. The probable reason that a number of bodies listed in Schedule 7 are not commenting on the Bill is that it is not necessarily the case that anything is going to happen to them. Within departments, any decisions will involve discussions before the public consultation period takes place. The precipitousness that the Opposition ascribe to the decision-making process does not give credit to the way in which the Government perform their public business. I am sorry that the noble Lord has not had critical comments from people in public bodies.

[Lord Hunt of Kings Heath]

It is not that I have not had critical comments: I have not had any comments.

[Lord Taylor of Holbeach]

That rather proves my point.

[Baroness Andrews]

If it is the case that nothing will happen to many or some of the bodies on the list, why are they on the list? Why is there a list at all?

[Lord Taylor of Holbeach]

That comes back to the process. Schedule 7 lists those bodies. The review initiated by my right honourable friend Francis Maude, which was the subject of a Statement in the House that I repeated, placed these public bodies on the list because they were considered to be subject to a review process. They have been subject to a review process and will continue to be subject to reviews at three-year intervals. The justification for them being on the list is that they are not exempted from being on it by the special criteria laid before the House.

[Baroness Andrews]

I am grateful to the noble Lord giving way. It is very important that we have clarification. The bodies that went through the public review process were cleared as being independent, expert and accountable, yet they are in Schedule 7. The Minister has referred to a triennial review. This can take place automatically; in fact, I understand that those bodies have been informed that there will be a triennial review. The bodies in the schedule are not necessarily subject to triennial review; they could be reviewed for any purpose whatever. There is a distinction here and we need clarification.

[Lord Taylor of Holbeach]

Of course, it is intended that departments will review the bodies that are listed in Schedule 7; that is perfectly correct. However, they will do so through a process of discussion with those bodies. The noble Baroness is involved in a body that appears in Schedule 7. I trust that she is sufficiently confident in her own position and that of her organisation not to feel in any way intimidated. Certainly she has been particularly eloquent—and justifiably so—in many of the things that she has said in debate in the House. What I was saying to the noble Lord, Lord Hunt, was that he had overreacted—which was uncharacteristic because he is a pretty phlegmatic fellow—by suggesting that there was widespread intimidation across Whitehall on account of the Bill. I do not believe that that is the case. I would go so far as to say that most people involved in public bodies want to co-operate with the Government in building a more accountable public sector.

[Lord Hunt of Kings Heath]

I am grateful to the noble Lord for giving way. I am also grateful for his suggestion that I am usually very calm. However, I have been concerned because I have made contact with a number of organisations, and while informally I can be told what their views are, they are clear that they do not want to make any formal representations. In the case of some departments, officials have made it clear that the department does not expect the organisation to make any public statement. I am concerned about that. I do not think I have gone over the top. It is very different from the normal process of legislation. We are all used to being inundated—sometimes it is overwhelming—by comments from stakeholders on pieces of legislation. The noble Lord has said that he will seek to investigate individual matters. If I can bring him cases, I will. However, the issue is that when organisations are concerned, they will simply clam up, and I am not in the business of fingering civil servants. That is not something that I would ever do. However, there is a clear view that departments have made it absolutely plain to the organisations listed that they are not to make representations. I express very great concern about that. The Minister may be prepared to reflect on it. It would be very helpful if it was known throughout Whitehall that these organisations were perfectly free to make their views known, and that there would be no recriminations if they did.

[Lord Taylor of Holbeach]

It is quite difficult for government bodies to speak out against government policy. The noble Lord has been in government. I suppose that he is suffering from the realisation that in opposition things are a bit different.

[Lord Hunt of Kings Heath]

With great respect, perhaps we may go back to the Marine and Coastal Access Bill. We spent six happy months debating it. In that time, representations were received from a considerable number of public bodies. I am not sure if the noble Lord is right to describe them as government bodies; we should call them public bodies. Yes, it irritated me enormously—how I wished for something like this Bill, because then I could have shut them up. However, I could not, it was right that I could not and it was right that those bodies expressed their views. This matter cannot simply be dismissed. This is a very serious matter of constitutional practice. There is clearly a feeling throughout the public Bills land that people are not able to express their views publicly. That is a matter of legitimate concern.

[Lord Taylor of Holbeach]

The noble Lord has expressed his point of view and I have given him the point of view from the Dispatch Box. It would be useful if he were able to provide instances that he feels show an abuse of government. I would be grateful to receive them.

[Lord Greaves]

I am grateful to the Minister for giving way. I previously backed up what the noble Lord, Lord Hunt, said, albeit in perhaps a slightly less dramatic way, but there is certainly some reluctance there. Is the Minister saying that if we meet that reluctance in the coming weeks, when inevitably we will want to get factual information out of organisations, we can say to people, “The Minister in the Lords, Lord Taylor of Holbeach, says that it’s okay for you to talk to us”? Can we use the Minister’s name in that way?

[Lord Taylor of Holbeach]

Heavens above, my Lords, I do not think that I can really be such a door-opener. What might we find? I say to all noble Lords that we have access to public bodies. Whether we are on the Front or the Back Benches in this House, we are capable of tabling Questions and we can find out facts. It is quite proper to do so if things are in the public domain. The Library is there to help us and, if we seek opinions, no doubt we all have contacts that we are able to use. I do not want this debate on the Bill to be stifled by ignorance but here we are talking about the consultation process that we are seeking to bring in through the Bill, once enacted.

[Lord Liddle]

One welcomes the steps that the Government are taking in the Bill to ensure that there is wider consultation, and the noble Lord’s Amendment 114 refers to the consultation that is necessary for the bodies listed in Schedules 1 to 6. Of course one welcomes this consultation, but with regard to the area with which I am particularly concerned—that of economic development—what sort of consultation will now occur on the Government’s policy of abolishing the regional development agencies, which are referred to in Schedule 1 to the Bill? To my knowledge, there was no consultation of any kind on that policy—indeed, rather the reverse.

Soon after the general election, we were told that the Secretary of State for Business, Innovation and Skills thought that the regional development agencies should be saved, and there was a tremendous sense of relief about that in the regions, particularly in the north. Indeed, I am told that the Secretary of State said that to the chairman and chief executive of one of the leading regional development agencies in the north. Then, a few weeks later, it was suddenly announced in the Budget that these bodies were to be abolished. A few days later, a joint paper appeared in the names of the Secretary of State for Business, Innovation and Skills and the Secretary of State for Communities and Local Government saying that the Government had decided to abolish them altogether and were now going to set up local economic partnerships. However, what consultation has occurred, and how is consultation now to take place in the light of the proposed new clause in Amendment 114 that the Minister intends to introduce? I should be very interested to hear his reply.

[Lord Taylor of Holbeach]

We are in effect debating all these bodies, as the noble Lord knows, and when we come to Schedule 1 there are amendments tabled—indeed, there is one in the name of the noble Lord, Lord Liddle—relating to the north-west, if I remember rightly. I notice that the Opposition have populated these amendments with suitable spokesmen for the regions. We will be debating that. Indeed, noble Lords should not forget that we will be debating it in the course of a piece of primary legislation. The political decision has in fact been made on the RDAs. Parliament has to agree to it but the political decision has been made. We are now talking about the process that will apply to future decisions.

[Lord Liddle]

I am sorry but that is not what the noble Lord’s Amendment 114 says. He is talking about a consultation process that applies to all the bodies listed in Schedules 1 to 6. Of course, I hope that during the course of our debates the regional development agencies—particularly those in the north of England—will be removed from Schedule 1, but there will still be no process of wider consultation, and we are going to be taking this decision with none of the normal consultation processes that one would expect when such a matter is before us. Therefore, I am still a bit mystified.

[Lord Taylor of Holbeach]

I have been passed a very helpful brief by my noble friend the Minister with responsibility for these matters, who happens, by chance, to be here at my side. She reminds me that the decision to close RDAs was in the coalition agreement; proposals for local enterprise partnerships to replace the RDAs were invited in June 2010 and a White Paper on sub-national growth—in other words, growth at a regional or local level—was published in October this year. Therefore, so far as concerns White Paper consultations, we are indeed in a period of consultation at this moment, and I suggest that the noble Lord gets about consulting it. Perhaps I can return to my comments on—

[Lord Clark of Windermere]

Perhaps I may try to clarify the position—and for once I am not talking about forestry or the Forestry Commission. The assertion was made by my noble friend Lord Hunt that certain public bodies—I emphasise “public bodies”, not government departments—have felt inhibited about expressing their views on this Bill. Is the Minister saying that if public bodies wish to make observations about the Bill, the Government are quite happy for them so to do?

[Lord Taylor of Holbeach]

I am not in a position to say that because I do not believe that that is what public bodies exist to do. They do not have a brief to comment on government legislation. However, they do have a brief to comment on anything that might affect them in particular, and that is why they are perfectly entitled to be involved in a consultation process on matters that may affect them during enactment of the Bill and during the presentation of a statutory instrument to change their position within the schedules, which is what the consultative process identified in Amendment 114 is all about. I should like to be able to talk more about that. The government amendment—

[Baroness O'Loan]

My Lords, I am still having some difficulty in understanding the Government’s position and in knowing exactly to which policy the noble Lord is referring in this context. We all know from long experience that there are many ways of influencing public bodies, and one of them, notwithstanding this legislation, is to make budgetary decisions that impact adversely on them. The comprehensive spending review has led many bodies to anticipate budgetary changes which may well be adverse for them. In those circumstances, and given the determination of this House to ensure effective and proper consultation at every stage of legislation, would it not be helpful, speaking as a fundamentalist, if the noble Lord were to declare that public bodies do have the right to comment on matters affecting them and that inclusion in any schedule is a matter that affects a public body and may well impact on the discharge of its statutory functions?

[Lord Taylor of Holbeach]

I am sorry but I am not prepared to concede that. I think that it would take public bodies into the role of advocacy and campaigning, which is not really their function. It is up to Governments to make decisions about these matters, followed by a process of consultation, and to make quite clear that all public bodies are affected.

[Lord Whitty]

I declare an interest as the chair of Consumer Focus for a few more days. Does the noble Lord not realise that some bodies on the list were established in order to give their opinion to government and more widely, and that their future, or the future of the role that they currently undertake, is therefore of vital importance to government? What the Minister seems to be saying is pretty appalling stuff: that the injunction on public bodies not to commentate extends not just to them talking to newspapers or lobbying Members of Parliament but even to talking to Ministers and responding to public consultation about their own future. That seems to me to be pretty draconian. If that is the Government’s position, frankly, it is shocking.

[Lord Taylor of Holbeach]

I think the noble Lord has got it totally wrong. I made it quite clear that any discussions concerning public bodies are a matter of consultation within departments and between departments and those public bodies. There is no question of inhibiting bodies in performing their proper function in relation to government, giving the advice which, by statute or by request, they are required to give to government. We shall be working closely with all public bodies in respect of these reforms. They affect people and their livelihoods and it has been beneficial for the Government to work with organisations. It is not the job of public bodies to lobby in relation to government policy.

[Lord Whitty]

My Lords, if that is where the line is, we understand it. Public bodies were set up primarily to administer policies which have been established by Parliament. Therefore, I still think that their inability to comment on policies pursued by government and others, or to inform Members of this House or another place of their opinion of the Government’s approach in this Bill, is a very severe inhibition of democracy. I think that is what the noble Lord is now saying. I understand that they can talk to their own departments and that they can respond in those areas, but if they cannot even inform Members of Parliament of their views, I think that is a restriction on the ability of Parliament to make a judgment.

--- Later in debate ---

[Lord Clark of Windermere]

My Lords, perhaps I can give example of the Information Commissioner listed in Schedule 7. One of his specific tasks is to adjudicate on the actions of government in withholding or providing information. Therefore, he is independent. Is the Minister saying that if a Member of this House made an inquiry of the Office of the Information Commissioner or any other public body it would not be right for the Information Commissioner or the other body not to provide the factual information to Members of this House?

[Lord Taylor of Holbeach]

I am not saying that at all. I do not suppose that any Member of this House will be able to say that they have had difficulty in getting that sort of factual information from public bodies or from government departments because that is a prerequisite of parliamentary responsibility, and I accept that. I think I should have made it quite clear that we recognise that it is beneficial for government to work with organisations and public bodies but it is not the job of public bodies to lobby in relation to government policy. I think that is a fair position to state and I think that is where the Government stand on this matter. If noble Lords disagree with it, fine, but that is the position that the Government take at the moment.

Government Amendment 114 echoes many of the proposals of my noble friend Lord Lester and the noble Lord, Lord Pannick, and of the Opposition Front Bench, but we believe that it goes further in some regards: for example, by stipulating a requirement for a 12-week consultation period, and by requiring Ministers to consult the Lord Chief Justice where a proposal relates to the administration of justice. I am pleased to note that paragraph 2 of yesterday’s report of the Delegated Powers Committee has welcomed this amendment.

I note the emphasis of my noble friend Lord Lester on the role of the public in any consultation process. In the same spirit, I note my noble friend Lord Greaves’s amendments to the government amendments on consultation, which would require that the Government publish a notice of the proposal to make an order under the Bill on the Government’s website and other places considered appropriate by a Minister, and to publish a summary of responses and the Minister’s response to them in a similar fashion.

I fully appreciate that in some circumstances, a public, properly publicised consultation in accordance with the Government’s existing code of practice will be appropriate. However, I also believe that there is a need for some flexibility here; it is important that the Government should be able to carry out proportionate, value-for-money consultations that minimise the burden on those consulted as well as on the Government. Indeed, such a consideration forms criterion 5 of the current code of practice on consultation, which was produced under the previous Administration.

Therefore, although I agree with the intent behind these amendments, in appropriate cases, I do not believe that they should be placed on the face of the Bill. The requirements in our proposed amendments mirror those in other legislation and do not preclude a public consultation in accordance with the Government’s code, if appropriate. It should be for Ministers to decide how to consult and for Parliament to hold them to account in this regard.

I hope, therefore, that noble Lords across the House will feel able to support government Amendments 114, 127 and 169, which create a parallel procedure for the other order-making powers in the Bill. I hope that, in the light of my comments, the noble Lord will feel able to withdraw his amendment and to support the Government’s proposals when they come forward.

[Lord Hunt of Kings Heath]

My Lords, I thank the noble Lord, Lord Taylor, for his extensive response to the points raised in the debate. On the general point, I think the question still arises as to whether it would give comfort if the words “public consultation” appeared in the Bill. I believe, and I would pray in aid the noble Lords, Lord Greaves and Lord Maclennan, that it would give reassurance if we could see in the Bill when it eventually leaves your Lordships' House some reference to public consultation. I am sure that we shall return to this on Report. I certainly acknowledge that the government amendments move us into a better situation. I am also very grateful to him for the point he raised in response to my noble friend Lady Andrews about the 12-week period, which encompasses the actual consultation with outside bodies and organisations. That is very reassuring.

On what public bodies can and cannot do, clearly I shall not be able to bring to him any evidence that officials have acted improperly because it is quite clear that what officials have been doing in departments is simply enunciating the policy that the Minister has laid down tonight which is, very simply, that public bodies should not comment on public legislation. I am gobsmacked because, frequently in debate, noble Lords opposite, when in Opposition, commented and quoted public bodies which have commented on legislation. Looking at the list, I can pick out organisations with which I have had some dealings: the Committee on Climate Change is not able to comment or the Environment Agency, or Ofgem, or the Health and Safety Executive or Natural England. Goodness me, how I wish Natural England—

[Lord Taylor of Holbeach]

Natural England has been very keen to comment at certain stages of the legislation and the noble Lord is quite right to single it out. What I said was “comment on legislation”; I did not say that they were not in a position to comment on those areas of their responsibility. Of course, Governments set these bodies up with the idea of seeking their advice on these matters, but Governments have to have the responsibility for bringing legislation before the House and it is for Parliament to advise the Government through its procedures on what it thinks of the Government’s legislation.

[Lord Hunt of Kings Heath]

My Lords, in my remarks I very advisedly quoted public legislation. I think it is a very rum do indeed that the organisations listed are clearly not being permitted to comment on this legislation. This raises huge matters of concern. In fact, looking at noble Lords, it adds to the concern that we feel about this legislation. Clearly, we will return. I am grateful to the Minister for the amendments that he will move. I beg leave to withdraw the amendment.