Public Bodies Bill [HL]

Lord Howe of Aberavon Excerpts

Monday 29th November 2010 Lords Chamber

Once we are in Select Committee—I know how it works from past experience—one is amazed by how quickly things go. The Minister would soon see that certain bodies in Schedule 1 clearly must be excluded. The rest of us would equally soon see that certain bodies in the schedule clearly ought to be abolished. The whole thing would be much simpler and quicker. It would take perhaps three or four months at most, as it did last time, but in the end a great deal of time would be saved because we would not have to go through each of these bodies and take a vote, which is the only course open to us now. I very much hope that the noble Lord, who has been so reasonable throughout, will consider again the possibility of opting for a Select Committee. I know that there was a vote against this, but it would still be possible—and, I suggest, very desirable—to reverse that vote.

[Lord Howe of Aberavon]

My Lords, I am the final person who has their name down in support of the amendment, and I support all the points made so far by noble Lords on all sides of the House. I confess that when my noble friend the Minister first presented this set of propositions upstairs to a collection of us from all sides of the House, I was reckless enough to describe the prospect as a potential tsunami of constitutional vandalism. That phrase struck me because of the structure of the Bill, which has since been criticised by the Constitution Committee. However, the more I have heard about the way in which my noble friend has been handling the Bill and responding to debate in this House, the more I am convinced that that is certainly nowhere near his intention, nor near the intention of the Government.

The Government may have been misled in the definition of their objective by the rationale set out by the Minister for the Cabinet Office, Francis Maude. He said that the Government should not leave this to people or bodies that were unelected and allowed to remain when their mission had long been accomplished. This is the approach: to see what may have outlived its usefulness. A Cabinet Office press release of 14 October this year states that,

“the Government’s presumption is that state activity, if needed at all, should be undertaken by bodies that are democratically accountable at either national or local level”.

No one could quarrel with that. However, the power is often exercised by Ministers and civil servants—no doubt most of the time in good faith—and it ignores the necessity of having an independent, external review. That is why the structure of this law—recounted in full by the noble Lord, Lord Borrie, and the noble and learned Lord, Lord Lloyd, rests on history. The noble Lord, Lord Borrie, recollected the Society of Labour Lawyers in the 1950s, and I recollect similar activity in what was then the Inns of Court Conservative and Unionist Society. We pressed for change under the leadership of people such as Lord Gardiner and Lord Simon of Glaisdale, seeking to promote the case that was scrutinised by Lord Franks and that led us, as has already been recounted, to the Tribunals and Inquiries Act 1958. The remarkable thing is that that has been the foundation for further review and reform. Noble Lords have already gone through that and brought us up to date with the Inquiries Act 2005 and the Tribunals, Courts and Enforcement Act 2007.

Perhaps I may add an anecdote of my own. It was my good fortune, while practising the profession that I have long since forgotten but of which I am still proud, that after representing Coal Board officials at the Aberfan inquiry, I was appointed to conduct an inquiry into misbehaviour at Ely Hospital, Cardiff. It was an ad hoc inquiry of the kind that has been repeated in many cases since. It was also an illustration of the way in which administration can go wrong. Throughout the operation of the inquiry, we struggled to secure our independence. In the first instance, we were not allowed to announce our existence, but we pressed for that to happen in order to appeal for outside witnesses. We were told that we could not have sufficient legal representation within the organisation. When we submitted our first report, we were told that we were going beyond our requirements by exceeding the mere description of facts and by daring to venture recommendations, and so on. My colleagues and I wrote two reports, one of which included the recommendations and one that did not. Happily, we were able to make sure that the then Secretary of State, Richard Crossman, who had a special adviser who had been a colleague of mine at Cambridge, knew of the existence of the two drafts and immediately authorised publication of the full draft. This decision was acclaimed later in a biography by Anthony Howard as one of his most courageous acts.

The point of the anecdote is to illustrate the extent to which conduct within a democratically elected institute can be less than perfect. That is why we have the structures that the noble and learned Lord, Lord Lloyd, went through so carefully—the outside tribunals and bodies to which appeals can be taken. The Tribunals and Inquiries Act was replaced to some degree by the Tribunals, Courts and Enforcement Act 2007—after the preceding body had been in existence for 50 years. Its position was enhanced and its structure detailed in Schedule 7 of the Act, which covered some 11 pages. Therefore, we have a body that has been well established for a specific purpose: to oversee areas that might otherwise be left entirely to elected bodies and people appearing before them. It would be wholly indefensible to remove this body from the existing structure of our balance between administration, law and politics.