Public Bodies Bill [HL]

Lord Clinton-Davis Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Pannick]

I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional—it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.

I was dealing with the Minister’s amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,

“must uphold the continued independence of the judiciary”.

It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.

As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders—a matter to which I am sure that we will return later in Committee—it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.

I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.

[Lord Clinton-Davis]

If the Government were to prevail so far as the amendment was concerned, could the issue be raised again in the courts? I think it could.

[Lord Pannick]

I am sure that there would be ample room for argument in the courts. I am concerned that we do not leave matters of this importance, in relation to a Bill that confers such exceptional powers on the Executive, to legal argument for the future. It is our task and our responsibility to ensure that these matters are clearly stated in the legislation that we are considering.

--- Later in debate ---

[Lord Elystan-Morgan]

My Lords, may I mention two matters very briefly? The first is the matter that was dealt with so magnificently by my noble and learned friend Lord Woolf. It seems to me that only an insensitive Government would even contemplate putting in any one of those schedules quasi-judicial bodies that are so central in their very existence and purpose to the administration of justice. There is no justification whatever for allowing them to remain in that particular jeopardy; they should be inviolate; they should be free from any prospect of ministerial diktat.

The second matter is the wider point of the issue that is before the Committee. Many people will say that they think the issue is whether Ministers should have the right and power to deal in such a savagely surgical way with 481 public bodies. No, that is not the issue. The issue is not the question of the conflict between Ministers and those bodies but that between the Executive and the sovereignty of Parliament. The question is whether those Ministers should have the power to strike down all those masses of legislative developments that have led to the very creation of those bodies in the first place. That is the issue. If I may make a biblical reference, I would say that the proposal is almost an Armageddon issue.

Henry VIII clauses are nothing new. About 80 years ago, Sir Gordon Hewart, a former Attorney-General who later became Lord Chief Justice, wrote a book called The New Despotism, whose title refers to the use of such clauses. Over the past 80 years, there has been a massive growth in the use of Henry VIII clauses such that we have now reached the point at which Parliament must either say no and call a halt to their use or allow the situation to develop ever further and thereby corrupt even the existence of Parliament.

[Lord Clinton-Davis]

I would like to say a few words, so I propose to speak for about two minutes.

I think that the indictment that the noble Lords, Lord Lester and Lord Pannick, have mounted today is worthy not only of the agreement of the noble Lord, Lord Taylor, to their amendments but of his agreement to the withdrawal of the Bill. We have been especially fortunate to hear the noble and learned Lord, Lord Woolf, give a devastating denunciation of the Bill today that ought to be heard by those on the government Benches.

We all have a great affection for the noble Lord, Lord Taylor, who has done an enormous amount to try to improve the unimprovable. The Minister has made some gallant efforts, but the best thing that he could do, in my view, is to withdraw the Bill and enable the House to consider afresh what ought to be done.

I simply want to underline my concerns as a solicitor. Amendment 175 interprets some crucial and important points that the Government have neglected. To confer upon Ministers the powers that the Government currently contemplate in the Bill is unworthy. The limitations that are provided for in the amendment are really crucial, so I hope that the Government will take those into account properly in their consideration of what has been said.