Public Bodies Bill [HL]

Baroness Andrews Excerpts

Wednesday 9th March 2011 Lords Chamber

[Baroness Thomas of Winchester]

My Lords, I speak at this point wearing my hat as chair of the Delegated Powers and Regulatory Reform Committee. As the noble Lord, Lord Hunt, has said, Clause 5 contains perhaps the widest power in the Bill now that we no longer have Clause 11 and Schedule 7. Schedule 5 includes bodies exercising a very wide range of statutory functions. The abolition or transfer of some of those functions could completely alter the character of the primary legislation that set up the bodies in the first place—added to which, any Minister in future could add new functions or alter existing ones considerably. Nothing in any amendments that the Government have so far proposed changes that fact.

That is why the committee of which I am chair has reiterated, in each of its three reports on the Bill so far, the inescapable fact that the powers in Clauses 1 to 5 and 13 are inappropriate delegations of powers. What we are looking for—and I hope that it may still not be too late—is that the Minister should consider amending the Bill to say briefly how these delegated powers should be exercised in relation to each body. The detail could then safely be left to delegated legislation.

[Baroness Andrews]

My Lords, it is a pleasure to follow the chair of the Delegated Powers and Regulatory Reform Committee, and I reinforce what she said. I declare an interest as the chair of English Heritage and as a member of that committee.

I will address the stand part debate regarding Clause 5, but it is difficult to do that without referring to Clause 11, Schedule 7 and indeed to Clause 8, which we will come on to later. I think that I am the first Member of this House—in this debate anyway—to congratulate the noble Lord on his success in getting rid of Clause 11 and Schedule 7. I know that as we proceed through the Bill today, he will be inundated with congratulations on what he has achieved regarding those clauses; it will be like his birthday. My thanks are very much a foretaste of joy to come.

I have always seen this Bill as more the product of William McGonagall than of Machiavelli in terms of how it had been put together and what it represented. Even for a Government who are fast establishing a reputation for recklessness, the Bill was a step too far. As I recall, the kindest thing that was said in our earlier debates about Schedule 7 was that it was “Kafkaesque”; it certainly created a feeling of victimisation without any sense of the crime that had been committed or indeed the sentence and the punishment that might follow.

I could end there, with unqualified praise, but I must pick up on the points that the noble Baroness, Lady Thomas, made. We are not yet done with this Bill—there are more changes that we have to press the Government to deliver. The problem that was widely recognised in this House, certainly at Second Reading and earlier in Committee, is that the whole Bill, frankly, is misconceived. It is an object lesson in making policy by prejudice. It demonstrates a failure to understand the nature, the role and the effectiveness of public bodies. It is an object lesson in how not to make legislation that will provide the substance of many a PhD thesis in future.

In recent days, the Committee has done its work very well by taking individual bodies and holding the implications of the Bill up to the light, defending their future and fate. The stand part debate allows us to say again to the Minister that it is not too late to recognise the fundamental problem that has been established in Clauses 1 to 5: that the powers in these clauses are far too wide. I echo what the noble Baroness, Lady Thomas, has said: Clause 5 is the widest power of all. We know where we are with Clauses 1 to 4; we know what “abolition” and “merger” mean. However, we do not know what Clause 5 implies and those bodies listed in the schedule certainly do not. It is very different in scope. It modifies or transfers functions, purposes and objectives, and could change the rationale for an entire organisation at a stroke—all by ministerial edict. Given the importance of the bodies that are listed in Schedule 5, this is a very serious predicament in which to put them.

It is no wonder, therefore, that the Delegated Powers and Regulatory Reform Committee reiterated in its 11th report on Monday that our original concerns were unmet. In our original report we were concerned about the inappropriate delegation of powers in Clauses 1 to 5. “Inappropriate” is a word that we have returned to time and again on this Bill. We are still concerned about those powers, which are still inappropriate. We said that the delegation of powers in Clauses 1 to 5 was “inappropriately broad in scope” and that there should be appropriate parliamentary scrutiny. That is still the view of the committee. We suggested in our earlier report that if Clause 11 were to be removed, it might make it easier for the powers in Clauses 1 to 5 to be better calibrated to matters that are appropriately left to delegated powers.

Clause 11 will, I am pleased to say, be removed. However, the powers in Clauses 1 to 5 are as yet unchanged. I say “as yet” because the Minister has said that he is considering these concerns. I certainly welcome that. I hope he will be as successful in dealing with that as he was in dealing with Clause 11 and Schedule 7. A crucial concern that we want him to consider before Report stage is spelling out more specifically the purposes for which the powers may be exercised. In Clause 8, the existing references are to matters to which the Minister may simply have regard. That is not strong enough. They do not deal with the fundamental problem of the Bill’s silence on the general purposes for which Parliament expects the powers to be used. They need to be so specified. It is extremely important that the Minister should address that point, at the end of either this debate or the debate on Clause 8.

[Lord Mayhew of Twysden]

My Lords, I, too, am a member of the Delegated Powers and Regulatory Reform Committee. I support everything that my noble friend Lady Thomas has said and much of what the noble Baroness, Lady Andrews, has said. She will not expect me, as a loyal supporter of the coalition Government, to endorse every epithet that she used— certainly not the word “reckless”, for which I might substitute the word “courageous”— but I warmly endorse the grateful compliment that she paid to my noble friend Lord Taylor for the changes that he has been more than instrumental in securing. As somebody who contributed to a rather torrid debate at Second Reading, when tremendous dissatisfaction with the Bill was expressed, I am extremely grateful that the answers that my noble friend returned with have turned away wrath for the time being. However, as the noble Baroness, Lady Andrews, has just said, that wrath has not gone away. It may have been turned away but it has not gone away entirely. I am afraid there is still more to come, particularly on expressing in the Bill the purposes for which these powers are to be used.

I take it to be a principle of the rule of law that an executive power may be exercised only for one of the purposes for which it was conferred. A ground that appears frequently in court judgments on judicial review proceedings is that a power has been purported to have been used in a way that was not authorised by the legislation giving rise to it. There is a good way to go yet, but I am heartened by the letter that my noble friend Lord Taylor sent to the committee—in appendix 2 to the report—in which he says that he is grateful to the committee for its report and goes on to say that the Government,

“continue to consider, in particular, the committee’s concern that the Bill should give greater clarity in clause 8 to the purpose for which the powers may be exercised”.

I hope that his efforts in that regard will be just as successful as they have been in relation to the appalling Schedule 7 and the equally alarming provisions affecting forestry. I hope he will be able to tell us that there is work still to be done and that he is looking forward to doing it.

--- Later in debate ---

[Baroness Andrews]

My Lords, perhaps I may press the noble Lord on one point. I am very appreciative of what he said in his response about Clause 8, but the example he gave of what the powers would be used for was interesting. The example related to the British Waterways Board’s transfer from the public sector to the charitable sector. The list of 14 bodies in Schedule 5 involves very specific uses of powers. Given the mystery—and, frankly, slightly sinister nature—of Clause 5, which we have addressed in different ways, can the Minister publish some sort of schedule that identifies the powers to be used in relation to those bodies? I do not think that that would be onerous, although it would certainly have been onerous if Clause 11 and Schedule 7 had survived. That would go a long way to meeting our concerns. I do not speak on the committee’s behalf, but I suspect that such a schedule would help the committee and those who will read and use the legislation—as well as the public bodies listed in the Bill.

[Lord Taylor of Holbeach]

I thank the noble Baroness for her intervention, because it reflects outside conversations and my discussions with the chairman of the Delegated Powers Committee on this matter. I should emphasise that we have found it possible—and I hope noble Lords will agree that it has been helpful—to produce the A4 briefing sheets that more or less provide a background for the changes we have been discussing. Those briefings have been explicit in describing the framework of the changes—not the detail, only the framework. To include such details in the legislation, given the large number of bodies involved, would lead to an extremely large Bill and would not necessarily be the way to deal with this matter.

We are discussing these bodies in principle in primary legislation because of the way that the debates and this Committee have taken the Bill. We know, because of the exclusion of Schedule 7, that there can no longer be the “stroke of the pen” that the noble Baroness, Lady Andrews, eloquently described when she expressed her anxiety about these issues. We know that that cannot happen and we know what the nature of the changes that will occur under the Bill will be. It is important to emphasise that no Minister can act under the Bill without a period of consultation or without explaining in detail the reasons for the change, its nature and consequences, in the explanatory document that will be provided alongside the statutory instrument that will effect change under any of these schedules. That is an effective way to ensure that Ministers do not act precipitately. If we are to try to meet the concerns of the Delegated Powers and Regulatory Reform Committee, we need to focus less on that than on the wording of Clause 8.

However, I make no promises—and I do not want to make promises—on this matter because it may be that I have stretched my run of good luck too far already. However, I believe that an explanatory document is a much more effective way of answering the Committee’s concerns and those of the noble Baroness.