Public Bodies Bill [HL]

Lord Clark of Windermere Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Clark of Windermere]

My Lords, I should like to press the Minister a little on the Government’s new clause in Amendment 114, with specific reference to consultation on matters which might be devolved or partly devolved, particularly forestry. I take this opportunity to thank the Minister for the way in which he responded to my request regarding how the Forestry Commission might communicate with Members of this House on factual matters. Through his offices and those of the noble Lord, Lord Henley, we have found a means of communication through the all-party group on forestry. Unlike most of the other bodies that we are discussing, the Forestry Commission is accountable to the Crown as opposed to the legislature, which creates a problem. The Bill does not refer to the Forestry Commission but, rightly, to the forestry commissioners. As I explained at Second Reading, the 1999 Act devolved certain aspects of forestry which are planned to revert to central control, and this creates a very complicated body.

The Minister made the point that if matters pertained to Scotland or Wales, there would be a duty to consult Scottish Ministers or Welsh Assembly Ministers. Should we consult Scottish Ministers or Welsh Assembly Ministers as opposed to the Scottish Parliament or the Welsh Assembly given that we might have to find a statutory mechanism pertaining to the Scottish Parliament or the Welsh Assembly to enable us to communicate with those bodies? I should like the Minister to give me an assurance—I am sure that he will give it to me if he can—that a mechanism will be found to enable us to communicate with the Scottish Parliament or the Welsh Assembly.

[Lord Greaves]

My Lords, I have a number of amendments in this group—Amendments 115 to 117, 128, 129 and 170 to 172. They are all amendments to the three government amendments that have been put forward. Noble Lords know what those amendments say and can judge my amendments accordingly. The amendments that I have put down are very much along the lines of the amendments that I usually put down on consultation. I listened—as, no doubt, did many other noble Lords—with great admiration to all the detailed legal analysis on Amendment 1. I congratulate the Minister on understanding it all. We are dealing with something much more basic now that I do understand and in which I have been involved all my life—that is, public consultation.

As my noble friend Lord Maclennan said, these amendments put more detail on to the principles set out in amendments tabled by my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hunt of Kings Heath. The former states that,

“the Minister must conduct a public consultation”,

and the latter states that,

“the Minister must consult the public”.

That fundamental principle has to appear in the Bill. It is absolutely right that consultation should be with all the appropriate organisations, interests and individuals that the Government can identify. In addition to that, consultation has to be open and transparent. That means that anyone who wants to be consulted should have the right to be consulted. In other words, the definition of who is interested ought to be made by the people concerned.

The Government can never know who wishes to contribute in total and which contributions might be useful to them in improving what they propose, or in coming to the view that it is right or wrong. That principle is accepted in many areas, such as consultation over planning applications to a local authority. Local authorities all have a list of the people whom they automatically and systematically consult, such as neighbours—depending on what the proposed development is, people living within a certain radius of the proposed development or perhaps just people living adjacent to it. A whole series of organisations—some national, some local—also automatically get consulted. There is no problem about that; it is the kind of consultation the Government are talking about in the Bill. In addition, there is an open consultation. Traditionally, a site notice might be posted so that people who walk past can have a look and see that the application has been made. There may be newspaper advertisements in certain cases where the application is thought to be particularly important, or is specialist—applications for listed buildings, for example.

Probably universally now, an open invitation is put on the council’s website for people to put their views forward, and an increasing proportion of people do so that way. That is an open consultation—it is open to anybody to take part and the council has to consider those representations. It does not mean that the whole basis of local government collapses; it is just a normal part of the process. There is no reason whatever why the Government cannot accept that principle on the kind of proposals in the Bill, which are often far reaching. In many cases, the Government act in this way; they may have a specific obligation to consult certain people and bodies, but in addition they put things on websites and take account of what people say. However, that is fairly ad hoc at the moment; whether it is done depends on the people involved. The principle ought to be in legislation. The internet makes the whole process far easier. The idea of advertising in national newspapers, the London Gazette or whatever—nobody ever sees it—has been superseded completely. All the information can now be put on the internet via the Government’s websites and people can respond in that way, or write in if they wish to respond in that way. There is no reason why that should not happen.

My amendment is the standard one that I table whenever this kind of thing comes up in your Lordships’ House. I tabled it on the Academies Bill; we got a weak concession from the Government on consultation by school governing bodies proposing to become academies, which has turned out to be pretty feeble in practice. Consultation is not an option. It is essential and should be entrenched in the legislation. I can remember banging away on the same issue on the Marine and Coastal Access Bill and various local government Bills.

--- Later in debate ---

[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.

--- Later in debate ---

[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—

--- Later in debate ---

[Viscount Eccles]

My Lords, perhaps I may have one more go at this. The noble Lord, Lord Whitty, and I have held positions in public bodies in our careers. If someone sent me that injunction, I would pay no attention to it.

[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.