Public Bodies Bill [HL]

Lord Crickhowell Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Crickhowell]

My Lords, the noble Baroness has given us a preview of the speech that she will no doubt make again in Committee. The problem that I have had to confront is that, while I completely agree with the aims of the Government in preparing this much-needed legislation, I am a member of the Constitution Committee, which produced the report that was laid before the House on 4 November. Bearing in mind the importance of that report, I suppose that it is as a punishment that the two members of the committee who have put down their names to speak tonight have been placed at 32 and 41 on the speakers list. That may have been a mistake, as Ministers knew that I for one would be bringing forward proposals, which they said that they would welcome, designed to address the very criticisms of the Bill contained in our report and which the House might have found helpful to be informed about early in the debate rather than during the dinner hour.

The Whips understandably believe that the members of a party or parties that form a Government have a duty to support them, but we have other duties as well. In this case, they are to ensure that constitutional conventions are not abused, to defend the right of Parliament to scrutinise and, if necessary, to amend the legislation brought before it and to see that the ability of this House to carry out its most important job—the proper scrutiny of legislation—is not undermined.

In the impact assessment that they have published, Ministers tell us that they considered proceeding by means of separate pieces of legislation but decided that that would have made it difficult to deliver the Government’s policy intention and would have been,

“an unnecessary burden on parliamentary time”.

It is not at all surprising that Ministers decided to bring forward a single Bill so that they could,

“effect the changes they need, through the less time-consuming process of secondary legislation”.

The drawbacks to that approach have been clearly identified by the Constitution Committee. With 910 public bodies in the scope of the review and 481 selected for some kind of change, I think that the Government, the House and, especially, Members on these Benches should try to work together to find ways of solving the very real problem that exists without wrecking the Bill, the aims of which are very widely supported.

At a meeting last week with Ministers and the Bill team, I was concerned by their repeated references to what they described as safeguards. The trouble is that the affirmative resolution procedure is not a safeguard, for the reasons so eloquently described by my noble and learned friend Lord Mayhew of Twysden and others, and other so-called safeguards are equally insubstantial. The words,

“the Minister must have regard to”,

and “if the Minister considers”—I quote from Clause 8 —do not provide any kind of reassurance.

So how do we resolve the difficulty? I have made a number of suggestions to Ministers, and my right honourable friend Francis Maude, the Cabinet Secretary, seemed sympathetic to all of them. First, there are several bodies listed in Schedule 5, such as the Human Fertilisation and Embryology Authority and the Human Tissue Authority, on which the Government are awaiting reports and have not yet decided how to proceed. The reform of some of those bodies raises sensitive issues. I believe that the Government would be well advised to take them out of this Bill and, when they have decided how to proceed, to produce separate Bills or include them in other legislation that the departments are almost certain to bring forward.

Secondly, there are some bodies included in the Bill with quasi-judicial or judicial functions where the changes raise legal and human rights issues, which were eloquently referred to by the noble and learned Lord, Lord Woolf, and by my noble friend Lord Lester of Herne Hill. I think that Ministers would be very wise not just to consider carefully and accept what the noble and learned Lord and the noble Lord said but to accept the recommendations that they made.

Thirdly—and this proposal does not by any means apply in every case or even in a very large number of cases—I say to my noble friend Lord Taylor of Holbeach that if he wants his Bill, as I do, he would be very wise to offer the super-affirmative resolution procedure used in the Legislative and Regulatory Reform Act 2006, which requires Ministers to take into account any representations, any resolution of either House and any recommendations of a parliamentary committee in respect of a draft order, laid for 60 days, particularly where, perhaps quite recently, there has been lengthy scrutiny of the legislation that brought the bodies into existence. Would it also not be wise to follow another precedent established by the 2006 Act, which is that there must be consultation with affected parties and that, following the consultation, the order must be laid in draft accompanied by an explanatory document? Those steps would provide substantial reassurance that the more controversial changes can be adequately examined, which would be further strengthened by an undertaking from Ministers that the legislation would be used never to increase but only to reduce the powers of public bodies.

Fourthly, a large number of public bodies, as we have heard, are included in Schedule 7. A Minister may by order transfer any of these bodies to one of the other schedules so that they may be abolished, merged or have their constitutional or financial arrangements modified. I realise that Ministers intend to hold regular reviews and that from time to time it will be clear that a public body has fulfilled its functions and is no longer required, but it is important, as a number of noble Lords have pointed out, that all public bodies that continue to function can do so with confidence and can use their independent judgment in carrying out their duties and in giving their advice to Ministers. If a public body faces the prospect that, by means of one order debated for an hour and a half, it can be transferred to a different schedule and by a second order merged or abolished, its confidence and its independence are likely to be undermined.

Many bodies on that list are important: the Environment Agency, the Health and Safety Executive, the Chief Inspector of Prisons, national park authorities, Ofcom and the OFT are there, just to pick a handful almost at random. Surely, at the very least, before moving a body from Schedule 7 Ministers should have to publish a paper explaining their intentions and allow an adequate period for consultation before any order is prepared. In some of these cases, Parliament may feel that the super-affirmative resolution procedure should be used. Some bodies, as the noble and learned Lord, Lord Woolf, has suggested, should be removed from the schedule entirely—some might argue that it should not be just a few.

The opposition amendment asks us to refer the Bill to a Select Committee. It does not require an instruction from the House for the Constitution Committee to consider the Bill. We have already done so. We stated that we will closely monitor the progress of the Bill and may report again to the House. What we could not do is carry out a detailed examination case by case of the large number of bodies covered by the Bill.

To send the Bill to a committee to carry out a full pre-legislative scrutiny would be to disguise an attempt to throw out the Bill at Second Reading without breaching the convention that this House does not reject Bills at Second Reading. I have served on two pre-legislative scrutiny committees. They are suitable mechanisms for dealing with Bills covering a limited number of changes in law, practice or principle. In this case, if the committee was drawn into scrutinising 481 separate cases, it is clear that it would be swamped by the weight of evidence, written and oral, and the Bill would effectively be killed.

For the Opposition seriously to obstruct, let alone kill, this Bill would be very odd politics. Mr Byrne, the shadow Cabinet Office Minister, has argued that the Government are carrying out the work of their Labour predecessor, in that two-thirds of the 192 bodies that are to be closed are those that he announced in March, that the tests proposed largely confirmed his approach and that he welcomes the principles of a sunset clause for quangos and triennial reviews.

My noble friend Lord Maclennan of Rogart offers a more tempting option, but I am extremely doubtful that even with a limited brief a committee could complete a useful job by the end of February that could not be better done by the House. I much prefer the proposal of my noble friend Lord Lester of Herne Hill. I hope, like him, that the Minister will, in the wind-up, give a clear undertaking that the Government will, at the start of the Committee stage, bring forward amendments to improve the process—it is on the process that most of the criticisms have concentrated—and include the adequate safeguards that have been suggested by noble Lords who have immense knowledge and experience in their own fields. I think that that is what the whole House demands.

My noble friend Lord Lester of Herne Hill referred to a comment made by the late Roy Jenkins about not digging trenches. I served for many years on the legislation committee under Lord Whitelaw. I have to say that I do not think that this Bill would have had a cat’s chance in hell of proceeding if Lord Whitelaw had been around. He would at this stage have made some pretty rough remarks to my noble friend on the Front Bench about not digging holes unless you can get out of them. I suggest to my noble friend that he quickly gets out of the mud before it becomes too deep. If he can do so, and if he can give us some reasonable undertakings—his right honourable friend Francis Maude has told me that he is sympathetic to much of what I have been saying—I will have no hesitation in voting for the Bill and against both amendments.