Public Bodies Bill [HL]

Lord Hunt of Kings Heath Excerpts

Tuesday 11th January 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

31: Schedule 1, page 16, line 24, leave out “Courts boards.”

[Lord Hunt of Kings Heath]

My Lords, in moving Amendment 31 on behalf of my noble friend Lord Bach, I intend also to speak to other amendments in the first group.

The Government have, during the Recess, had a little time to reflect on the Bill. The Minister will know of the evidence given by the Lord Chief Justice to the Constitution Committee, which, as he knows, was highly critical of the Bill. We have also very recently received the report of the Commons Select Committee on Public Administration, chaired by a Conservative MP, Mr Bernard Jenkin, which was also highly critical of the Bill. As the Select Committee report states, the review leading up to the Bill,

“was poorly managed. There was no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow. It is important that the Government learn lessons from these mistakes as it has indicated that future reviews are likely to be run in broadly the same way. To ensure their effectiveness future reviews should not be conducted in a similar way”.

Amen to that. The Select Committee continues:

“The Bill giving the Government the power to bring about these changes was equally badly drafted. It is being significantly re-written by the House of Lords and we intend to issue a further detailed report on the Bill once the Lords have finished their scrutiny”.

It seems that, gradually, the Government are beginning to recognise that there is a need to make substantive changes to the Bill. I am grateful to the noble Lord, Lord Taylor, for his recent amendments, most of them made before the Recess, taking out most judicial organisations from Schedule 7. I think that that is a belated recognition of the Bill’s threats to judicial independence. I hope that the noble Lord will be able to do more in the coming weeks. I would like Schedule 7 to be removed in its entirety and the super-affirmative procedure to be used for every order pertaining to an organisation listed in the Bill.

I also hope that the noble Lord, and the noble Lord, Lord McNally, will listen sympathetically to the points made on this group of amendments. All of them, in one way or another, relate to the effective administration of justice. In moving Amendment 31, I shall speak also to my Amendments 32 and 45 and comment on Amendments 40 and 42.

Amendment 31 relates to the courts boards. The boards have not managed or administered the courts themselves but have given advice and made constructive recommendations to foster improvements in the administrative services provided. There is one courts board for each of the local management areas administered by area directors across England and Wales. Each courts board has members drawn from different communities and from a variety of backgrounds. The information from the Ministry of Justice states:

“Courts Boards were established because there was a fear that the voice of Magistrates would be lost within a unified HM Courts Service. These fears have dissipated because other structures—such as the Justices’ Issues Group and the Area Judicial Forums—are in place to ensure that Magistrates’ views are heard. There are also strong local relationships with Magistrates’ Benches Chairs”.

However, I have received a number of letters from chairs of local area courts boards expressing concerns. To summarise them, there are two. The first is that, at a time of a programme of court closures, no local independent review can take place. The chairs of the committees believe that the reduction in the number of local courts creates a greater need for mechanisms to keep in touch with communities and to identify local needs. The point is also made by the chairmen in the letters that I have received that boards can help to advise Her Majesty’s Courts Service on ways in which policies can be implemented at local level so as to help to ensure the most effective use of resources. I would be grateful for the response of the noble Lord, Lord McNally, to the concerns raised by the chairs of those committees.

--- Later in debate ---

[Lord Hunt of Kings Heath]

My Lords, I congratulate the noble Lord, Lord McNally, on that quick pass to the noble Lord, Lord Taylor, in relation to the memorandum. I can helpfully confirm that it was the practice of the previous Government to submit very lengthy memorandums to the Select Committee, and no doubt the Cabinet Office will be pleased to do so to the committee of the noble Lord, Lord Lester, in due course.

I agree with the noble Lord, Lord McNally, that it is a privilege to take part in a debate in which the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, and the noble Lords, Lord Ramsbotham, Lord Lester and Lord Newton, have spoken. The noble Lord, Lord Lester, went to the heart of the matter when he talked about the architecture of the Bill. We are going through the schedules, debating each organisation, without knowing the final outcome of the architecture. It would be helpful if, at an early stage, the Government could set out some of their thinking about whether they are prepared to make changes to the architecture.

I have added my name to Amendment 175. I agree with the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay, that it is very important. I certainly believe that it is consequential to Amendment 1 and would expect the House to accept it formally when we reach it. However, we have yet to hear whether the Government intend to seek to reverse it in the other place or to make substantial amendments to it. The noble Lord, Lord McNally, made some very promising comments in relation to the meeting that is to take place tomorrow between the noble Lord, Lord Lester, and the officials of the noble Lord, Lord Taylor. However, we will have to await the outcome of that. To a certain extent we are still working in the dark with regard to the final architecture. I believe that the architecture would be immeasurably improved, as the noble and learned Lord, Lord Woolf, has suggested, by removing Schedule 7 altogether. That would commend itself to many noble Lords in all parts of the House. I also believe that the super-affirmative procedure order should be used when it comes to the use of orders in the Bill. In the mean time, it is right to treat each body listed in the Bill on its merits. I was very happy with the response given by the noble Lord, Lord McNally, to my Amendments 31, 32 and 42. I shall certainly not seek to press Amendment 31 this afternoon.

I also understand what the noble Lord, Lord McNally, has said about the balance between the contribution of independent bodies and the role of departments and Ministers. There is a balance to be drawn. It is right that Ministers should be held to account for the major decisions that are made, albeit within individual government departments. Equally, I think we all agree that independent bodies have a role to play as well. It is a question of where you draw the line. My own party is not opposed to the abolition of a number of the bodies that are listed in this Bill. We support the general proposition that these kind of bodies need to be reviewed regularly and that no public body has a right to exist for ever. On the other hand, I listened with great interest to the powerful speech of the noble Lord, Lord Ramsbotham, on Her Majesty’s Inspectorate of Court Administration. He made a very good case. The noble Lord, Lord McNally, is right; this appeared in a Green Paper in 2009 as a candidate for abolition. None the less, when we come to Amendment 40, the House needs to listen very carefully to what the noble Lord, Lord Ramsbotham, said.

On the Public Guardian Board, I am very grateful to the noble Lord, Lord McNally, for his response and for his commitment to the Mental Capacity Act. He recognised the role that has been undertaken by Mrs Rosie Varley and her committee members. I take it from what he said that his department will wish to ensure that this work, albeit in a different form, will continue in the future.

[Lord Ramsbotham]

My Lords, perhaps I may speak briefly to Amendment 40. I agree with the noble Lord, Lord Newton, that it would be churlish at this stage to press for a vote. I am enormously grateful for the explanation given by the noble Lord, Lord McNally, which frankly I and many other Members of the House would have welcomed before this stage. If all that information was available, why could it not have been put in the Explanatory Notes and given to us in another form? We are going to have the same sort of debate when other issues, such as the Youth Justice Board, come up for discussion. If alternative plans have already been made it would be enormously helpful to know those in advance so that we can weigh them against the bald statement in the Bill.

I listened with great care to noble Lords’ contributions, particularly that of the noble and learned Lord, Lord Mackay, whose wisdom I respect hugely and whose advice I listen to. In that spirit, it would be sensible to withdraw Amendment 40 with, I hope, discussions to follow with the possibility of resuming it later. I have read the National Audit Office report—I worked for the National Audit Office in other respects. I am not sure that it completely fills the remit, although it fills some of it. Again, this is an issue it would be sensible to look at in detail before necessarily pressing it to a vote.

[Lord Hunt of Kings Heath]

We are, of course, on Amendment 31. I beg leave to withdraw the amendment.

Amendment 31 withdrawn.

--- Later in debate ---

[Baroness Thornton]

I realise that putting down an amendment to add something to this hotchpotch Bill may seem perverse in the extreme but assure the Committee that there is method in my madness. This is a probing amendment, designed to achieve what we seem to have signally failed to achieve so far with this Bill: that is, to gain some understanding of the rationale, the explanation or the philosophy that lies behind (the arm’s-length institutions that are included in the Bill and those that are not). I use the Food Standards Agency as an example of a body that is not in the Bill but about which reform is being proposed.

The Food Standards Agency, is, as it says on its website,

“an independent Government department set up by an Act of Parliament in 2000 to protect the public's health and consumer interests in relation to food”.

What has already been announced is that some of its functions will be taken away and given to Defra, and nutrition and dietary health will be moved back to the Department of Health. That is a very retrograde step in the view of many people concerned with diet and health. I think we can safely say that the Food Standards Agency was specifically formed after the BSE food scandals to try to re-establish public confidence in food advice by creating an arm’s-length body and an independent organisation. If the Government wish to change that fundamentally, they have to have some justification for addressing those issues specifically. Even if they wish to make the FSA a leaner and more cost-effective body, as they have done and to which the FSA has responded very well, cost-cutting is not the point here. It would seem that the FSA can be changed and its powers taken away without recourse to Parliament, without consultation and without this Bill.

Why is the FSA not included in this Bill? I was tempted to table an amendment for all the non-departmental government bodies that are not included in this Bill just to try to make sense of the Bill, and I have not ruled out that idea. For example, we will address later the other health bodies that are included in this Bill: the HFEA and the HTA. They were created with a similar motivation to that behind the Food Standards Agency—the need to have an arm’s-length body independent of government that could be trusted by the public to give good advice.

So far, the passage of this Bill has resembled a familiar song that we may all know, “The Hokey Cokey”. You put Channel 4 or Ofcom in the Bill, then you take them out of the Bill—or you think about it—and maybe shake them all about a bit. In the case of the recent government amendments on the Criminal Procedure Rule Committee, and a host of the other judicial-sounding bodies, they are out, but why? Perhaps we should rename this Bill the Hokey Cokey Bill.

Since tabling this amendment, the Public Administration Select Committee in another place has very obligingly published, Smaller Government: Shrinking the Quango State. I had intended to use the Treasury’s admirable publication, Reforming Arm's Length Bodies, and the Institute for Government’s document, Read Before Burning, as a theme for this discussion, because both contain a sensible description of the different kinds of arm’s-length bodies, what they do and how they might be reviewed and reformed. However, I think that they have been overtaken by the admirable report from the committee under Mr Bernard Jenkin MP about the dog’s breakfast that is not just this Bill but the whole process of reforming arm’s-length bodies.

To go back to basics, the coalition agreement merely said:

“We will reduce the number and cost of quangos”.

I have to say that my own Government’s policy was along the same lines. The Reforming Arm's Length Bodies document outlined how to do this in an orderly fashion over a period of time and save money in the course of doing that. So the Government started a cost-reduction exercise. Shortly after the election, they undertook to review public bodies sponsored by departments, including executive agencies. The stated aim of the review was primarily to increase the accountability of government. To achieve this, the review attempted to indentify functions that could be transferred from public bodies to central departments. The Government argued that Ministers could then be directly responsible for those activities and could be held to account by Parliament for the discharge of those activities. Indeed, Francis Maude, the Minister in the Cabinet Office—I particularly like this bit—said:

“I have led an intensive review into public bodies, subjecting each to four tests. The first test was existential and asked, does the body need to exist and do its functions need to be carried out at all?”.—[Official Report, Commons, 14/10/10; col. 505.]

I think that existential is a really good word to use in the process of these discussions. Those tests were whether,

“a precise technical operation needs to be performed to fulfil a ministerial mandate”.

The second area was,

“where it may be right to delegate power to an independent body … when there is a need for politically impartial decisions”.

The third area was,

“where there is likely to be a need for independent action … when facts need to be transparently determined”.

The fourth area, of course, was the existential test.

Added to that, we have another test, which appeared slightly late in the day: transparency. According to the report:

“The Ministry of Justice has retained bodies on the grounds of ‘transparency’”,

so we know now that we have at least four or five tests that the Government have said need to be applied to arm’s-length bodies.

The report goes on to say:

“It is also unclear whether all three of the tests the Government set were necessary in determining whether a function should remain at arm's length from Government”.

The report adds that the Institute for Government,

“during its research for its report, Read Before Burning, conducted its own evaluation of public bodies and the level of independence they need to discharge their functions properly. Their evidence states that: The key issue for deciding to put a function at arm's length is the degree of independence from day-to-day ministerial intervention needed to enable the body to command public confidence that it can perform its function in the public interest”.

That test applies completely to the FSA, and indeed to several bodies that are included in this Bill. We therefore have the importance of the independence test.

The additional test that is brought to bear is that of value for money. As well as the four or five tests that I have already outlined, the Select Committee says that the Government,

“are silent on a range of other issues, such as the implication of changes on the wider public policy framework, value for money, or current performance of organisations”.

The report concludes:

“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so”.

Our own Merits Committee did, as I recall, agree with that.

The report goes on to say that the Government do not apply the tests consistently and have declined, in some cases,

“to provide an explanation for why it intends to retain a body”.

It seems to me that asking for an explanation of why the Food Standards Agency is not included in this Bill is exactly the point of this Select Committee report. The Government have been inconsistent about what is in the Bill, what is out of the Bill, and what tests should be applied to the bodies that they intend to keep and to reform. The conclusion of this very critical report says:

“We are not convinced that the Government has applied its tests consistently. Neither can we find any evidence to suggest that it took any steps to ensure a uniform approach was taken. We recommend that the Cabinet Office publish details on how the tests have been applied to all public bodies that are still under review, so we can ensure that in future these tests are applied consistently.

The lack of consultation and inconsistent application of the tests, which are themselves confusing”—

I would agree with that—

“have led us to conclude that there was no coherent and consistent process for reviewing public bodies”.

I return to the Food Standards Agency, which I would not wish to include in this Bill. Whether or not I proceed to add a whole host of other bodies into the Bill in a desperate attempt to understand the rationale is dependent on the Minister’s explanation. I would really appreciate him addressing the very important issues that are raised in this report—and this is the first opportunity we have had to say this. I would like an explanation of the broader implications that this report has for the Bill. Obviously, it involves not just the Food Standards Agency but many, many bodies.

Finally, we on these Benches are not opposed to modernising arm’s-length bodies. Indeed, in March last year we published a document about the reform of arm’s-length bodies that said that we intended to reduce their number by 123 and to save money by doing so. However, we intended to do it in an orderly fashion with consistent and consistently applied criteria. This Government have not done that, and we need an explanation of what they intend to do next. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I am grateful to my noble friend Lady Thornton for raising three very substantive matters with this amendment: first, what is to happen to the FSA; secondly, the process by which the Government have undertaken this review; and, thirdly—coming back to the debate on the first group of amendments—the architecture of the Bill.

I was the Department of Health Minister who, with the noble Baroness, Lady Hayman, as the Defra Minister, took through the legislation that created the Food Standards Agency. The noble Lord, Lord Newton, and I are singing off the same hymn sheet here. I remind the noble Lord that the reason for this was that there was a great deal of public distrust, it would be fair to say, arising out of the BSE issue along with some concern about the advice that the relevant government departments had been giving to the public. Therefore, the decision was taken to create an independent agency sponsored not by Defra but by the Department of Health.

Overall, that agency has worked very well indeed. I pay particular tribute to the noble Lord, Lord Krebs, and to Mr Geoffrey Podger, the first chair and chief executive of the FSA—and, indeed, to their successors—for doing what I think has been an outstanding job. It has certainly advanced the credibility of the advice that that body gives to the public and, importantly, has also enhanced the credibility of the British food industry. I therefore have some reservations about the changes that are now being proposed to the FSA. I understand that there will be a transfer of some of its responsibilities to the Department of Health. I must declare my interests in relation to the health service and to public health as they are recorded in the Register. The FSA has a tremendous reputation and, in the Government’s place, I would hesitate before making substantive changes.

However, the second point raised by my noble friend relates to the rationale for the Government’s approach both to those bodies that are contained in the Bill and those that are not. It is still not clear to many noble Lords what the rationale is. This is a good opportunity for the Minister, who, as noble Lords have already remarked, has been very helpful to the House, to explain some more about the rationale for the bodies contained in the Bill and those that are not, even where those that are not are actually to have substantive changes made to them.

The noble Lord, Lord Taylor, will be a little tired of having Select Committee reports quoted back to him because it would be fair to say that all of the Select Committees that have so far looked at the Bill and at the review undertaken by the Government have been not exactly complimentary. The noble Lord, Lord Taylor, has to answer the central charge of the Public Administration Select Committee, chaired by Mr Bernard Jenkin, which said:

“This review was poorly managed … no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow”.

Apart from rejecting the Select Committee’s report out of hand, the Government have been rather silent in responding so far. We are entitled to some comment on the review process itself.

My noble friend Lady Thornton referred to the Bill as being the “Hokey Cokey Bill”. I think it is more Gilbertian myself. The noble Lord, Lord Taylor has a little list. In fact it is a very big list that is gradually becoming smaller. I note that the Jonathan Miller production of “The Mikado” is back at the Coliseum yet again. The noble Lord might take care and reflect by going to see it.

It brings us back to the architecture of the Bill. In an earlier debate the noble Lord, Lord Lester, raised the question of Amendment 175, which is consequential on the paving Amendment 1 that the House passed. That is a very important amendment because it sets very clearly the restrictions on ministerial powers to be used in the Act. If, as a result of the discussions that I know that his officials are having with noble Lord, Lord Lester, tomorrow and other discussions, the Government were able to accept the principle of Amendment 175, while making it clear that they do not intend to reverse this in the other place, then we would make more progress.

There are other substantive issues in relation to the architecture. I have already mentioned the use of the supra-affirmative procedure and the deletion of Schedule 7. Some reassurance that public consultation will take place when it is proposed to deal with any of the bodies in this order would go some considerable way to reassuring noble Lords. In the absence of the House understanding what changes the Government are prepared to make to the architecture, we go inevitably through these bodies one by one and, in a sense, in a vacuum—a point made earlier by the noble and learned Lord, Lord Mackay of Clashfern. We are due a Committee day next week when, no doubt, we will hear when further Committee days are to take place. I hope that in a fairly short time the Government will be able to make a little clearer their sense of where they are on the Bill and whether they are prepared to make the kind of changes to its construct that would reassure noble Lords considerably.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Thornton, for tabling this amendment. I know that she has done so with good intentions but we have enough on our plate without adding an extra dish to the menu. I thank the noble Lord, Lord Hunt of Kings Heath, for his recommendation to see “The Mikado”. I saw it when it was previously on at the Coliseum. In fact, I have tickets. Should time allow, I hope to see it in revival.

As your Lordships are aware, the Public Bodies Bill exists to take forward the review of public bodies undertaken across the Government in 2010 to enable changes to be made. I acknowledge the report of the Select Committee produced by another place and no doubt we will be replying to that report in due course. However tempting it might be, I do not want to use this debate as an opportunity for expanding on arguments that the Government will bring forward in their discussions with that committee. We are negotiating with the opposition Front Bench and the Select Committees of your Lordships’ House to try to improve the Bill. It is interesting that, as the noble Baroness said, there is a determination across the House to ensure that we have a public bodies sector that is fit for purpose.

Perhaps I may address the changes that have occurred within the Food Standards Agency in the context of the recent history of the department. The previous Government announced in their public health White Paper, published shortly before the election, that they would bring dietary health and nutrition away from the FSA into the Department of Health. That is the background against which, under the new Government on 20 July 2010, the Department of Health announced its decision to retain the Food Standards Agency as an independent regulator, while transferring some of its functions to the Department of Health and Defra. I shall shortly put those into the context of the size of the organisation. These changes are non-statutory in nature and do not therefore require the use of the Public Bodies Bill, or any another legislative vehicle, to bring them into effect.

The proposed changes to the role of the FSA are designed to contribute to the Government’s objectives to improve efficiency and are paramount to the key priority of improving the health of the nation by creating a public health service. To achieve this coherence, some policy-based functions are to be brought in-house to give a more co-ordinated approach on health and food issues. These changes affect approximately 5 per cent of the 2,000 staff employed by the Food Standards Agency. About 25 labelling policy posts will move to Defra and 85 nutrition policy posts will move to the Department of Health. These proposed changes reflect the Department of Health’s desire to bring together all the policy levers to enable it to deliver a coherent public health strategy. This will allow the FSA to focus on its key core remit of food safety underpinned by scientific expertise. It has been mentioned that the noble Lord, Lord Krebs, in establishing the Food Standards Agency, provided a foundation of science which has greatly benefited that organisation. The proposed changes will enable government food policy to be communicated and delivered in a coherent and consistent manner. The Department of Health, Defra and the FSA—we must not forget that the Food Standards Agency is classified as a government department—will work together to ensure that this structure protects consumer interests, reinforces efforts to improve the public’s health and supports a competitive food industry.

I acknowledge that the last thing the noble Baroness seeks is the extinction of the Food Standards Agency. On the basis of the assurances I have given, I hope that she will feel able to withdraw the amendment.