Public Bodies Bill [HL]

Baroness Royall of Blaisdon Excerpts

Tuesday 9th November 2010 Lords Chamber

[Baroness Royall of Blaisdon]

My Lords, I thank the Minister for his detailed exposition of the Bill and for the constructive discussions that we have already had on it, which I know will continue in the future. I do not doubt his sincerity one bit. I thank him, too, for the concessions that he has indicated, although I do not believe that they are sufficient for the Bill.

We need constructive discussions because this is a bad Bill. It is badly thought out, badly structured, badly executed, bad for the constitution, bad for public bodies and bad for government. We will oppose the Bill, and the lengthy list of eminent speakers wanting to debate it today suggests that we will not be alone in so doing.

At the beginning of the debate, I want to draw to the House’s attention the recent report on the Bill by the House of Lords Select Committee on the Constitution and add my thanks to the committee for its work on the Bill. The committee’s report is one of the most devastating critiques of a government Bill that I have ever seen a committee of this House deliver. I am sure that distinguished members of the committee who are down to speak in today’s debate will detail the committee’s report. However, for the moment, I should like to quote one of its most compelling conclusions. It is as follows:

“The Public Bodies Bill [HL] strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber”.

I believe that that is right, fair and accurate. In dealing with this Bill, it is a judgment of which the Government and indeed this House tonight in the Division Lobbies need to take full account.

We want to oppose the Bill constructively and reasonably. The amendment that we are proposing, which my noble friend Lord Hunt of Kings Heath will detail later, is both constructive and reasonable. It is not obstructive in any way. It simply seeks to refer the Bill to a special Select Committee of the House for fuller and proper consideration ahead of its Committee stage. This is exactly the approach proposed for the Constitutional Reform Bill in 2004, when my noble and learned friend Lord Falconer of Thoroton brought forward measures to reform the office of the Lord Chancellor and to create the Supreme Court. The noble and learned Lord, Lord Lloyd of Berwick, proposed putting the Bill to a special Select Committee of the House, and the House agreed that that was a proper and appropriate step. It is not telling tales out of school to say that we as a Government did not want to take that step. Perhaps that is the Government’s position today, but my noble and learned friend Lord Falconer was the first to admit that the Bill, after it had been considered by the special Select Committee, was improved—indeed, greatly improved—by the process. I urge the Government today to heed that judgment and agree that this Bill should take the same route. To do so would improve—indeed, greatly improve— the Bill.

We on these Benches believe that arm’s-length public bodies, the subject of the Bill, play an important part in our public governance and public life. Many carry out vital and sometimes essential functions. However, they must be effective and efficient, as the Minister said. Like the noble Lord, we do not believe that these bodies should be set in aspic; we do not believe that they should be preserved at all costs. In some instances, they come to the end of their usefulness or natural life. In some cases, other bodies or entirely different means are better at addressing the issues that the arm’s-length bodies were established to consider. That is why, earlier this year when still in government, we proposed and began our own review of arm’s-length bodies.

The Benches opposite like to present this party as a quango creator, but, in fact, when we came to power in 1997 there were some 1,230 arm’s-length bodies and, even by the time we began our own review, we had cut the number to some 750—a cut of 40 per cent. By contrast, since coming to office, the coalition Government have created 20 new bodies. We are not die-in-a-ditch defenders of arm’s-length public bodies, but we oppose what the Government are doing in the Bill and how they are proposing to do it.

The first point is that the coalition is proposing to abolish or change fundamentally any or all of the bodies listed in the schedules to the Bill. These are, in fact, largely statutory bodies, although some are constituted by royal charter. Many Members of your Lordships’ House will, I am sure, raise particular concerns about individual organisations specified in the Bill. I, too, wish to do so.

I share the concerns of many Members across the House about particular organisations, but my own concerns relate specifically to Clauses 17, 18 and 19, on the powers in relation to forestry. I grew up in the Royal Forest of Dean, an area of great beauty, history and heritage. I live there still. Foresters are immensely proud of their ancient rights and traditions, but also of the environment and the flora and fauna and of our contribution to being part of the solution to the problem of climate change. The forest is protected and well managed, but it is also a place where people have free access to walk, picnic, ride or swim in the ponds.

Clause 17(2) enables the Secretary of State by order to amend the Forestry Act 1967 to modify the purposes, objective or conditions by which the Forestry Commission disposes of land, manages and uses it or lets or grants rights or interests over it. The Secretary of State may exercise such a function for “any purpose or unconditionally”. Those are chilling words. This appears to allow the Secretary of State to order the disposal of any Forestry Commission land in England, or its use for some other purpose. It is hard to conceive why Ministers want such draconian powers, unless it is the Government’s intention to dispose of much or all of the Forestry Commission’s land. I have no idea why the Government would wish to do that. Perhaps the Minister could tell us.

Ministers may speak about the big society, as they do on the Defra website. I am in favour of the good society, but I do not want my forest, or other woodlands and forests that are well managed and cared for by the Forestry Commission, at a cost to the Exchequer of a mere £10 million last year, to be sold off. Mrs Thatcher’s Government, in accepting amendments to the Forestry Bill of 1981, recognised that,

“the Forest of Dean is unique and that its land should not be sold except … surplus cottages, small areas of the Waste in the forest and the like will be sold as in the past, but there will be no power to sell significant areas of forest land”.—[Official Report, Commons, 8/7/81; col. 502.]

I will do everything in my power to ensure that this situation continues. Friends of my local MP, who as a government Minister clearly supports the Bill, criticised my support for the Forest of Dean, as I am against a corporate buyout of the forest. The forests of this country are and must continue to be a national asset, where trees are managed, where biodiversity is protected and where public rights of access continue in perpetuity. If they are sold off with the weak voluntary safeguards mentioned in the Bill, how can the quality of access, management of the land, biodiversity and habitat be guaranteed for future generations?

The second point concerns how the Government propose to do what they seek to do. Through the Bill, they propose a fundamental shift in who controls these bodies. It will not be Parliament; it will be Ministers. The whole scheme—and a skeleton scheme at that—is built on the Government’s supposition that it is better to have a process where Ministers make the decision about the life or death of an arm’s-length body and fast-track the parliamentary process. As the Select Committee points out, the issues raised by this approach transcend politics and go to the heart of Parliament’s role in scrutinising legislation and deciding whether fundamental government proposals in respect of these bodies should be enacted into law.

The architecture of the Bill includes a series of Henry VIII clauses, which enable primary legislation to be amended by simple affirmative order. Henry VIII clauses are devices that Governments need to deploy with care. Some people see them as rare and unusual beasts that strike at the heart of parliamentary supremacy. The Constitution Committee clearly states:

“Departures from constitutional principle”—

such as the Henry VIII clauses—

“should be contemplated only where a full and clear explanation and justification is provided”.

I am sure that the House would benefit from a full explanation from the Minister of why this is the case and, for each body listed, why it is appropriate for Parliament to cede this responsibility.

As noble Lords will be aware, in the normal course of affairs this House does not overturn draft orders that are subject to the simple affirmative procedure. However, the procedure that the Government are proposing so overloads the practice and principle of secondary legislation that we give them fair notice that the circumstances of the Bill are such that it may well be right in this instance not to follow that approach. In this we are in line with the conclusions of the most recent examination of the convention carried out by a Joint Committee of both Houses, chaired by my noble friend Lord Cunningham of Felling. The Joint Committee’s report, approved by all parties in both Houses, states that the House of Lords should not regularly reject statutory instruments but that in exceptional circumstances it may be appropriate for it to do so. One exceptional circumstance mentioned by the committee is when a parent Act was a skeleton Bill and the provisions of the SI are of the sort more normally found in primary legislation. This is exactly the circumstance that we are in with this Bill. It is precisely this kind of provision in the Bill that a Select Committee would be best placed to consider.

A Select Committee would be best placed to consider the inclusion of Schedule 7 to the Bill, and the organisations covered by it, over which the Government propose to station permanently the sword of Damocles, throwing their current operations and future prospects into doubt and confusion. A Select Committee would provide the opportunity for a range of interested bodies to be consulted and to give evidence to your Lordships’ House. The lack of consultation on the Bill is woeful, and a Select Committee would provide the Government with the best means of correcting that. It would allow them to fill in the gaps in their provision, including the provision of a regulatory impact assessment, and it would allow them to bring forward the financial assessment and figures that they are currently withholding and that we are trying to obtain through our tabling to the Cabinet Office, in relation to every organisation instanced in the Bill, requests under the Freedom of Information Act for the financial and employment information to be provided. If we succeed, I promise that we in turn will provide the information to Members of your Lordships’ House.

I stress one point in particular. We are aware that it is being suggested that we are playing politics with the Bill and are proposing a Select Committee simply to make things politically awkward for the coalition. This is not so. Certainly, we are opposing the Bill and this includes political opposition. However, we believe that proposing that a Select Committee consider it is the best way forward for the Bill, just as it turned out to be the best way forward for the Constitutional Reform Bill when, to the great benefit of the Bill, this House sagely referred it to a Select Committee. This is not playing politics but simply trying to make a bad Bill better—a Bill of huge importance to the many organisations cited and to the people whom they serve, protect and employ.

Therefore, as my noble friend Lord Hunt of Kings Heath will detail, we are entirely content to accept the amendment proposed by the noble Lord, Lord Maclennan of Rogart, in the bipartisan spirit in which it is offered. We believe that, just as with the Constitutional Reform Bill, which was with the Select Committee for about the same length of time, three months is ample for the Select Committee of your Lordships’ House to consider and propose improvements to the Bill before it comes to the House for a Committee stage. I look forward to the debate that we are about to have—

[Lord Martin of Springburn]

Perhaps the noble Baroness will allow me to intervene to voice a big concern that I have about quangos. The east end of Glasgow is the poorest area of the city and the west end the wealthiest. Most people whom I know on quangos live in the west end, and I think that the same would be true for many cities throughout the United Kingdom. I am concerned that, when we wring our hands and say that we want to do more for the poor communities, we never invite people from those communities to be on our quangos.

[Baroness Royall of Blaisdon]

My Lords, the noble Lord makes a very valid point. I do not know whether such an issue would come within the scope of the Bill, and that is entirely a question for the Minister to answer. However, it is a very good point and one that we should take into consideration when thinking about the future of these non-departmental bodies, because they should reflect the needs and desires of the whole community.

[Lord Lester of Herne Hill]

The noble Baroness was talking about the Select Committee and the kinds of matters that it would deal with but, as she spoke, the list became quite long. Does she think that in three months it would be possible to look, for example, at all the bodies listed in Schedule 7? I could understand it if she were saying, “Keep it narrow. Keep to procedure and safeguards”, but is she considering something wider than that?

[Baroness Royall of Blaisdon]

My Lords, I think that it should be a fairly narrow committee and that it should meet regularly. I do not think that it would be appropriate or possible, for example, to invite people to give evidence in relation to every single body mentioned in Schedule 7, but it would be appropriate for the committee as a whole to consider the entire schedule. It is a vast schedule listing a jumble of different organisations and I think that some order needs to be put into it. The Select Committee would provide an opportunity to take evidence from some of the most important quangos, if I may put it that way, included in Schedule 7.

I urge the Government to heed the wise words that we are about to hear in the debate. I also urge them to take full account of the genuine and extensive concerns of this House’s Select Committee on the Constitution and to take the opportunity to improve the Bill, as is sorely needed.