Public Bodies Bill [HL]

Baroness Andrews Excerpts

Tuesday 9th November 2010 Lords Chamber

[Baroness Andrews]

My Lords, I declare an interest as chair of English Heritage and as a vice-chairman of the national parks authorities. Both these bodies are identified in Schedule 7 to the Bill—the pending tray of the Bill, as it were. It is on the implications of Schedule 7 that I want to concentrate. I also declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, which will make its own judgment on the Bill in due course.

In the Bill before us, Ministers have simply asked your Lordships to agree to rewriting the constitutional balance between the Executive and Parliament. The Constitution Committee has been extensively quoted and it has made its position abundantly clear. What is at stake in this Bill is a testing point for this Parliament and this House. I was sorry to hear the Minister say—I believe—that he was unable to respond to the Constitution Committee’s report this evening and that he would get back in touch. I hope he will take advantage of my noble friend’s invitation to respond to the serious concerns expressed by that committee in its report.

The Bill is also extremely important because it will come to define the ambitions of a Government who seek to consolidate power in their own hands on an extraordinary scale, irrespective of normal parliamentary procedure. In the context of being an ex-Minister, I say that I stood at the Dispatch Box several times and tried to persuade the House of several modest proposals on powers to be given to Secretaries of State, usually to arbitrate in matters of policy. From both sides of the House there came cries of, “Too much power is accruing in the hands of the Secretary of State”. I was flattered by noble Lords who said that they trusted the Minister but would not trust my successors. I did not think we would ever debate a Bill that would require an accumulation of ministerial power on a scale that would not have been conceived of in the previous Parliament.

The Bill is about public bodies and they are just that. Over the past few months, in the frenetic atmosphere of the comprehensive spending review, all the virtues of public bodies and the public service they represent seem to have been denigrated, along with the integrity and astonishing commitment of the majority of people who serve on those bodies. Of course, we can all make a case for efficiency and rationalisation; we have and we should, and we should deliver on that. However, there has been no public debate on how our public bodies should best adjust to new challenges and no proper consultation. There is little dignity in the situation that many good public bodies now find themselves in. I regret that, not least on behalf of their staff, more than I can say.

Now we have before us a Bill that proposes to alter not just the present and predictable status and governance of organisations but their future status, existence, powers, functions and governance. It is as though the legislation that brought them into being—often detailed, hard won and hard fought, not least in this House—had never been introduced, and as though their purposes were not worth debating. It suggests that the time we spend scrutinising, correcting and improving legislation in this House is rather a waste. That is not something your Lordships agree with; we know how many hours we have spent debating the regulation of everything from child protection to energy security. We know how important it is and we know that the problem often rests here, where we solve it.

Worse still, we now have a Bill that brings with it a threat of future changes that are as yet unknown, either to the institutions identified or to the Ministers in place. For the first time a Bill proposes to hand powers to Ministers without requiring them to make clear what their intentions are or might be, without giving power to Parliament to challenge or change that. While I agree with much of what the noble Lord, Lord Freeman, said, affirmative orders do not allow this House to make changes. I sympathise with the Minister. The Bill is not of his doing; I am sure he wishes he had never set eyes on it. However, it is now for him to answer the questions that this House is putting to him. The Constitution Committee has said clearly that the Government have not made the case for why the vast powers in the Bill are needed. I am sorry to say that I do not think the Minister’s opening speech did so either, but he will have another chance at the end.

What lies behind the sweeping powers in the Bill? What is the problem that the Bill is intended to solve? Can the Minister give me any precedent for a Bill that attempts to give Ministers powers to legislate for the future without clear purpose or intent? The Minister has taken refuge in a raft of protections lifted from the legislative reform orders legislation, but I for one have absolutely no confidence in the ability of loose terms such as freedom and efficiency to protect vital bodies and their functions, especially when the rest of the protections offered in the legislative reform orders legislation have been left out of this Bill: for example, that it is not constitutionally significant. Why have those powers been left out? I invite the Minister to respond to that point.

My image of Schedule 7—its impact and the implications of unjustifiable uncertainty—is of a sort of ghastly waiting room where public bodies await some form of operation. They do not know what kind of operation it will be, whether it will be performed, whether the right limb or any limb at all will be amputated, or whether they will survive. The bodies in Schedule 7 may be abolished or changed without the democratic challenge and accountability of primary legislation, notwithstanding that in many cases their existence and purposes were decided by Parliament, and it is to Parliament that they are accountable as well as to government. These bodies may be altered in their name, powers or ability to employ staff. They may be transferred to another body or their functions delegated. In short, their functions can be dismissed, diminished or distorted without Parliament being able to lift a finger to help them. This is what government secondary legislation provides—no powers for this House to protect, challenge or change.

Let me turn to the list itself, which is the first challenge to common sense and comprehension. Can the Minister tell the House how the list for Schedule 7 was drawn up? The Explanatory Notes do not help. They say that the schedule contains bodies where there is currently,

“no policy intention to make changes to their status or functions”,

and that the justification for their inclusion is that they had been,

“subject to the review process”.

However, the review of public bodies that has just taken place could not have been more thorough. Each of the bodies reviewed has already passed the three critical tests, posed by the Prime Minister, of independence, expertise and accountability. Why should there now be any indecision over their future? If, as a result of that review, there is no policy intention to make changes, why are these bodies on the list at all? Why does the list exist?

The corollary question is: why does this list not consist of bodies that have not been reviewed and therefore might be reviewed in the future? If the Government have a definite intention to review a body again and make further changes, why do they not declare their own tests null and void? Why do they not openly say that more changes are needed and deal with that process honestly and transparently? Why should a body that has been through the rigours of the review and been found to be serving a proper and necessary function not be left now to get on with a difficult job of managing massive changes, often involving serious redundancies and redefining structures and jobs in very difficult circumstances?

A further clarification is needed. The Explanatory Notes suggest that bodies are on the list because any changes that would follow any future review process would require legislation. However, my understanding is that not all public bodies that would require legislation for changes to be made to them are in the schedule. Why are some bodies here and others not? We have a schedule that is neither consistent nor inclusive in its coverage, leaves some bodies out when others with similar requirements are in, and includes bodies where there is no intention to change but excludes others that have not been reviewed for the purpose of change. At best, this is dreadful drafting; at worst, it raises serious issues of motivation.

There is a compounding factor—a further twist—that reduces opportunities for scrutiny even further. To effect a change to a Schedule 7 body, there will have to be two orders; I refer to Clauses 11 and 12, both of which will require a resolution of both Houses. However, there is no requirement that they be laid at the same time. Noble Lords might therefore be faced with a debate on moving a body to one of the other schedules, with all the implications that that involves but without sight of the order that really matters—the one that will make the changes that will affect the organisation. Of course, policy intentions can change. A second order to effect the change may be for an entirely different purpose than was expressed to be the intent when the order moving the public body from Schedule 7 was debated. Can the Minister tell me why we need two orders? Why would a single instrument describing the effect of the change on the public body not be sufficient?

The Minister said that he understood the concerns of public bodies and the situation they face. These good public bodies are now living with a totally uncertain future, when at any time another review, another change, another structure, could be put forward—not for public debate, but by way of an order that invites this House to decide that future without knowing what it will mean. I believe that to be profoundly unethical, unwise and unconstitutional.

What about the impact on staff? Does the Minister agree with me that independence becomes something of a fiction when he appears to be constantly looking over his shoulder? This is not so much the big society as Big Brother. How can one remain independent of judgment? How can one retain freedom of action? How can one be prepared to innovate and take risks—all the things that public bodies do well and successfully—while living with the constant fear of more change?

I think the Minister already knows that the House finds this Bill unacceptable, if not deeply offensive, to its sense of constitutional propriety and democratic responsibility. I have never read anything quite as excoriating as the Constitution Committee’s report or heard a speech of the nature made by the noble and learned Lord, Lord Woolf, this afternoon. I know that the Minister is a good and thoughtful man, and I was grateful that we had the opportunity to meet. I hope that he will have the courage to acknowledge the deep flaws in the thinking behind the Bill, and in the Bill itself, and will join us in supporting the amendment in the name of my noble friend Lord Hunt.