Public Bodies Bill [HL]

Lord Hunt of Kings Heath Excerpts

Wednesday 9th March 2011 Lords Chamber

Moved by

[Lord Hunt of Kings Heath]

98: Schedule 5, page 19, line 25, leave out “Passengers’ Council (“Passenger Focus”).”

[Lord Hunt of Kings Heath]

My Lords, I will move the amendment in the name of my noble friend Lord Whitty. Passenger Focus plays an important role in protecting the interests of Britain’s rail passengers, England’s bus passengers outside London, coach passengers on scheduled domestic services and tram passengers. It is important that this function is not undermined and it is not appropriate that Passenger Focus is included in the Bill. I am very happy that the noble Lord, Lord Taylor, is joining me in support of this important amendment. I beg to move.

[Lord Whitty]

My Lords, my noble friend did not realise that I had arrived from the airport to move the amendment. I, too, am grateful to the Minister and I congratulate him. This is the first time that a Minister in this Government has added their name to an amendment of mine on any piece of legislation. What I am about to say should not undermine my gratitude. However, I have to ask two questions.

First, where does this leave Passenger Focus, because it achieved the distinction of appearing under three different schedules to the Bill and it remains in Schedule 3, which we agreed at an earlier stage? The piece of paper given to us for our debate on Monday, had we reached the amendment then, indicated that a much reduced role is envisaged for Passenger Focus. The document states that it would concentrate on its,

“core role of protecting consumers”,

that there was “scope for significant savings”, and that the body would be working under a “significantly reduced budget”. The reference to the core role is slightly sinister, because it implies that the organisation will focus on the complaints function and therefore act in processing and improving that function, but that it will not be allowed to be more critical of the train or bus companies and, more particularly, the department’s overall transport policy as regards the rail or bus network. If that is the intention, it will neuter Passenger Focus considerably. I should like the noble Earl, Lord Attlee, who I assume will reply, to provide reassurance on that front.

My second question is on a wider front. The various existing consumer bodies are being dealt with differentially under this legislation. Some are to be abolished, some are to be merged, some are to have their functions transferred and some, given the abolition of Schedule 7, will be retained—presumably in their present form. Passenger Focus will be retained in a modified form. The Government’s original intent, for which I had some regard, was to rationalise the whole structure of consumer representation. Instead of that, the danger is that they will leave a bigger hotchpotch than the aggregate of previous legislation on consumer matters and weaken the statutory base of a number of consumer bodies.

As the Committee knows, I have an interest as a past chair of Consumer Focus. On the one hand, it appears that that body will be abolished, while on the other hand the Government say that they will transfer the functions to Citizens Advice. It was BIS’s original view that other bodies, including Passenger Focus and the Consumer Council for Water, should also be transferred to Citizens Advice. Whether or not that was a good idea, at least it was coherent. It seems now that we will end up on the consumer front with greater incoherence than the Government inherited and were determined to do something about. Not only is regulation likely to be more incoherent, but it is also likely to be substantially weaker, with fewer resources. Therefore, although I very much appreciate the Government’s support for the amendment, I have serious misgivings about their specific and general intentions as regards consumer protection.

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Moved by

[Lord Hunt of Kings Heath]

100: Clause 6, page 3, line 13, at beginning insert “Subject to section (Restrictions on ministerial powers),”

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[Lord Whitty]

In this amendment, I move away from the detailed consideration of individual bodies and their future to a more general principle. This relates to what happens to the staff of those bodies whose functions are transferred or merged. There is a clear-cut situation where, if bodies are abolished, although some of the bodies are Schedule 1, there has also been commitment by the Government to transfer the functions, duties or powers elsewhere and, therefore, the question of what happens to the staff who are carrying out those functions under the current arrangements does arise.

This amendment would make it clear that, in normal circumstances, the TUPE arrangements would apply as they would apply to mergers in both the private and the public sector, and across the private and the public sector where functions and duties are transferred. Under normal procedure concerning people’s entitlement to terms and conditions, including redundancy terms, pensions and other aspects of their employment, if the functions are moved into a receiving body, it would be for that receiving body to maintain both the continuity of service and the terms and conditions unless and until, either by collective agreement or by individual contract agreement, those terms are changed.

Because of the complexity of the bodies involved and the contractual terms which appear and have grown up in many of these bodies over time, it may not be all that clear, even to eminent employment lawyers, whether a TUPE applies or not. Even in the more simple past, when we were only dealing with one or two mergers of bodies or transfers of functions, it sometimes was not at all clear. The form of words here is almost exactly that which was included in the legislation in 2006 which set up the present Consumer Focus body—the National Consumer Council in legal terms—when we had the merger of the old National Consumer Council, Energywatch and Postwatch. The terms and conditions were preserved, albeit in some situations it was not entirely clear whether TUPE would apply or not.

In 2006 the regulations on TUPE came in. When Consumer Focus was created they were quite new, but similar forms of words have appeared in other legislation where there has been a merger or transfer of functions from one state body—NDPB or equivalent—to another. This Bill has a wholesale raft of such transfers. It does not have quite as many as it started out with but there are still quite a few left, and a few where it is not quite clear whether the transfer is occurring or not, and whether it is a function which normally comes under the TUPE regulations.

This amendment would make it clear, however, that if the function transfers or the duty and power transfers, the staff would go with them unless and until the receiving body decided it might wish to dispense with their services as the new employer. It is not up to the previous employer to declare them redundant until such a rationalisation has taken place by the receiving employer, which can happen more or less instantaneously in certain circumstances. The important point is that up until that point, the terms and conditions of the staff employed under the pre-existing bodies would be preserved.

This important point relates to quite a lot of staff, and there is quite a lot of uncertainty among the trade unions and staff bodies representing them. We need clarity on this and if the Government are unable to accept this form of words then, clearly, I am happy to discuss it with them. The principle needs to be established for all the bodies which remain within this Bill. I beg to move.

[Lord Hunt of Kings Heath]

My Lords, I would very much like to support my noble friend on this. It is timely to remember that thousands of people who work for the public bodies listed in this Bill are likely to be affected by its provisions. Many will lose their livelihoods; some will find their careers seriously damaged; some, as my noble friend Lord Whitty has said, will find themselves transferred to other employers. It is important that we recognise and acknowledge that those people have given dedicated service, in some cases for many years. Where they are transferring to another body, we must make the transition process as smooth as possible. That is clearly the intent behind my noble friend's amendment. It would ensure that, where a person is transferred to another body, TUPE will apply, with the implications and protections as described by my noble friend. I hope that the Minister will be able to provide the necessary assurances on that. The Government also need to take on board the point that my noble friend made about the complexity of the issue and the need for clarity, which is why his amendment deserves serious consideration.

[Lord Taylor of Holbeach]

I, too, am grateful to the noble Lord, Lord Whitty, for tabling the amendment, because it raises an important aspect of the reforms and allows the Committee to consider the impact of the Government's reform programme on the staff of the bodies affected. I take this opportunity to pay tribute to the work of the thousands of hard-working staff of public bodies across the country. Specifically, I put on record that our proposed reforms to public bodies are no reflection on the work of the staff.

I assure the Committee that the Government are working with the chairs and chief executives of public bodies and trade union representatives to ensure that necessary change is carried out as smoothly and fairly as possible. As the noble Lord said, that must be an important aspect of this operation. The Government have been diligent in acknowledging the needs of staff during the public bodies review programme, and we will continue to be so—for example, by exploring opportunities for redeployment where possible.

The Cabinet Office has been working closely with other departments since 2010 to ensure that the needs of staff are fully factored into the public bodies programme of work, particularly on the need to provide staff with clarity following reform decisions and the milestones along the route. The Cabinet Secretary has sent a message to departments on that very point. The Cabinet Office has also provided a checklist of considerations for departments which takes the needs of staff and stakeholders into account.

Those arrangements reflect a flexible approach that ensures that government departments can respond in the context of individual changes—based, of course, on the proper protections that are already enshrined in UK employment law. That is the right approach to support our public bodies’ staff. It also reflects the Cabinet Office statement of practice on staff transfers in the public sector. The guiding principles, as set out in the document state:

“The Government is committed to ensuring that the public sector is a good employer and a model contractor and client”.

The principles recognise that the:

“involvement, commitment and motivation of staff are vital for achieving smooth and seamless transition during such organisational change”.

On the specifics of the amendment, I should like to inform the Committee why the Government believe that the blanket application of TUPE is not appropriate. TUPE, and the European law which underpins it, was designed to protect staff where the business for which they worked, or the services to which they were assigned, would be carried out by a different organisation. Staff retain their jobs and conditions, and the new employer steps into the shoes of the old one. The definition of relevant transfer under TUPE is broad and will cover most transfer situations.

However, Clause 23 already provides the mechanism for equivalent protection to be confirmed in non-TUPE situations where that is appropriate. That is underpinned by the Cabinet Office statement of practice on staff transfers, to which I have already referred, which provides that the TUPE principles should generally be followed through a transfer scheme which addresses the imperatives of the particular transfer.

The blanket application of TUPE to all transfers conducted pursuant to this Bill seems likely to lead to inefficiencies and unintended consequences. For example, there may be circumstances where a body following an order made under this Bill is carrying out functions which have significantly altered and which require different skills and resources, with the result that there is no relevant transfer for TUPE purposes. If TUPE were nevertheless to be applied, staff would be transferred to the new body by operation of law, only to be potentially made redundant by the transferee. This would involve extra work and unnecessary expense and delay with no benefit to anyone, increasing uncertainty for staff and possibly disruptive relocation.

I appreciate the concern of the noble Lord, Lord Whitty, and I can assure him that the Government will continue to have a positive approach to TUPE regulations where they properly apply, and seek to make appropriate provision where this is not the case. I hope that, in the light of the assurances I have given, he will feel free to withdraw his amendment.

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[Lord Goodhart]

My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.

It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.

That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.

[Lord Hunt of Kings Heath]

My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.

In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies—it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.

We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.

Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the Minister’s Amendment 114 seeks to ensure that the public would always be consulted if the Minister proposed to make an order under Clauses 1 to 6. I accept that the Minister’s amendment is welcome and extensive. I also accept that in new subsection (1)(g) of the proposed new clause the Minister is given power to consult the public, since it states,

“such other persons as the Minister considers appropriate”.

That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.

I also believe—this relates to my Amendments 118A and 118B—that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord’s amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government’s proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,

“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the ‘veto’)”.

The committee reminds us that, under the 2006 Act,

“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.

The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.

I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him—it would be interesting to have further discussions between now and Report—is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.

My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord’s amendment to make it clear to an individual organisation that, unless a Government deal with a matter within a certain time, it falls. However, there is a case for the Government being able to undertake a regular review. It might be that we should keep the provisions of this Bill but limit the time under which an individual organisation can be covered by it.

[Lord Goodhart]

I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.

My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment—Amendment 126—to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?

Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:

“If the draft of an instrument containing an order under this Act … would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument”.

Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.

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[Lord Taylor of Holbeach]

I do not suppose that the Committee would have chosen to debate this important group of amendments at this time of night. I do not really want to rush but I am mindful of the time. It is interesting that the amendments contain the workplace of me and the Bill team. This is certainly an area in which we are and have been much engaged. I hope that all noble Lords will understand that it is rarely possible to deliver everything. There are some areas where the Government have to draw a line but there are others—I think that I can indicate these in the debate this evening—where further consideration is justified and where I would hope to come back with amendments before Report, after discussions with noble Lords. I say that by way of preface.

The whole group of amendments relates to the procedures that Ministers must follow. These issues have had substantial discussion in Committee. I thank noble Lords across the Committee for their contributions. As I seek to respond to each amendment, I ask noble Lords to contextualise the debate against the changes that we have already announced in the Bill, notably the removal of Schedule 7 and our ongoing commitment to work with noble Lords on a variety of related issues.

I begin with Amendment 106A in the name of my noble friend Lord Newton of Braintree. This amendment would add the objectives of,

“fairness, openness, transparency and justice”,

to the list to which the Minister must have regard when considering making an order under Sections 1 to 6. I thank him for his amendment and reassure the Committee that these objectives underpin the Government’s rationale for reforming public bodies and, of course, the Government’s programme as a whole. It is good that my noble friend carries the coalition agreement in his inside pocket, close to his heart. I am reassured by that and always value his contributions, even when they are not necessarily supportive of everything that I am seeking to do with this Bill. The only points where I fear we disagree concern whether this amendment would work in practice and whether such wording is necessary on the face of the Bill. The Government believe that such a requirement in legislative terms would be ambiguous and could, as drafted, be quite difficult to measure or assess. However, it is an area in Clause 8 that we have committed to look at.

Amendment 114A returns us to the question of consultation, which was originally debated on our first day in Committee on this Bill. It would amend government Amendment 114 by introducing a specific requirement to consult the public before laying an order using the main powers in the Bill. The Government have accepted the principle that Ministers should be required to consult on their proposals to reform public bodies before using these powers. The Government also accept that in some cases it is completely appropriate to consult the public in relation to such proposals. For example, I can confirm to the Committee that the Department for Business, Innovation and Skills intends to consult this year on its proposed changes to competition bodies. We discussed that earlier this evening. It will be a public consultation. The Government Equalities Office will soon publish its consultation document on reform of the Equality and Human Rights Commission. Later this year, Defra will issue a public consultation on its plans to replace British Waterways with a charitable body.

However, I take issue with the amendment in the name of the noble Lord, Lord Hunt, as it would apply without due regard to proportionality to any proposed reform. Such an approach runs contrary not only to the policy of this Government but also to the existing code of practice on consultation, which was issued in June 2008 by the Government of whom the noble Lord, Lord Hunt, was a part. The introduction to the code of practice is clear:

“Ministers retain their existing discretion not to conduct formal consultation exercises under the terms of the Code. At times, a formal, written, public consultation will not be the most effective or proportionate way of seeking input from interested parties”.

I do not quote from this document to seek to absolve Ministers of responsibility. Subsection (1)(b) in Amendment 114 specifically requires a Minister to consult persons whom he or she considers,

“to be representative of interests substantially affected by the proposal”.

This provision clearly could include the public. The Minister must therefore expect to be held accountable for his or her decisions in relation to this provision. However, the proper requirement that Ministers should consider whether to consult the public does not lead to the conclusion that it will prove necessary or proportionate in all cases. For example, is it proportionate to require a full public consultation on the statutory abolition of Food From Britain, a body that, to all intents, has been defunct since 2009, or on the proposal to use Schedule 2 to merge the Pensions Ombudsman with the ombudsman for the board of the Pension Protection Fund? These two bodies already share services to a great extent and those functions will not change.

As with other cases in the Bill where the public will rightfully expect to be consulted, undoubtedly they will, but the Bill as drafted allows for that possibility and the Government accept their responsibility to ensure that that occurs when necessary. By contrast, the amendment proposed by the noble Lord, Lord Hunt, will remove the ability of Ministers to conduct a more targeted consultation when that is appropriate. While I have sympathy with the sentiment behind Amendment 114A, the Government do not believe that the public will welcome a proposal that would add unnecessary bureaucracy to the order-making process and with it, in effect, the process of reform.

The question of proportionality is also pertinent to Amendments 118A and 118B in the name of the noble Lord, Lord Hunt, which concern the parliamentary procedure that should apply to orders made under this Bill. In responding to these amendments, I should clarify for your Lordships’ House that we have substituted government Amendment 118 with a new version that makes it explicit that the enhanced procedure can be activated by a recommendation of a committee of either House. This clarification responds to paragraph 24(a) of the sixth report of the Delegated Powers Committee—that is, the committee’s second report on this Bill. I am happy to clarify the Government’s intentions in response.

Amendment 118A seeks to make it explicit that a Minister wishing to make an order following a period of consultation must lay before Parliament a draft order and explanatory document. I agree with the spirit of the noble Lord’s amendment, but I do not consider it necessary. While the current drafting of subsection (1) in government Amendment 118 states that a Minister,

“may lay … a draft order, and … an explanatory document”,

it would in practice not be possible to make an order without following this procedure. Our current drafting simply reflects the fact that, following a period of consultation under Amendment 114, the Minister is not obliged to proceed with the proposal.

Amendment 118B would introduce a wholly new parliamentary procedure for these orders, giving a committee of either House the opportunity not only to reject but also to amend an order, or to recommend that the proposals be taken forward only through primary legislation. As I argued when we debated this issue on the first day in Committee, the Government cannot support that proposal for a number of reasons. First, I maintain my position that the noble Lord’s amendment goes beyond the scope of the Bill in seeking to effect a fundamental shift in how this House deals with secondary legislation. Secondly, I do not accept that the powers of the Bill, especially in the light of the removal of Schedule 7 and the additional safeguards that the Government are now proposing, justify the use of such a restrictive parliamentary procedure. It is now the case that no body can be subject to the powers of the Bill unless Parliament has consented through primary legislation to its inclusion in the Bill’s schedules. The waiting room of Schedule 7 has gone. Therefore, the scope of the powers in this Bill has been significantly narrowed. On this basis, to continue to suggest that the Bill requires a more restrictive scrutiny procedure than, for example, the Legislative and Regulatory Reform Act appears a disproportionate response, particularly in the light of the additional safeguards that we have introduced and continued to work towards and the fact that the proposed procedure would apply to each and every order made under this Bill.

I do not intend to quote a list of examples of such reforms. Suffice it to say that I do not consider that the opposition amendment represents a proportionate procedure for an order to abolish a body that is already defunct. Our approach, by contrast, gives Parliament the flexibility to select and enhance procedure while maintaining for the Government the reasonable ability to act to implement their programme. It is for this reason that I cannot accept Amendment 118B or Amendment 117.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Lord for giving way. I will not detain the Committee very long. I want to make two points. First, presumably in the case of defunct bodies, the Select Committee appointed by the House could deal with this matter in very short order. The Merits Committee, for instance, deals with a huge number of statutory instruments every week. It will list a huge number to which it does not draw the special attention of the House and it focuses on the orders it considers to be most important. Secondly, the noble Lord has been pretty forthright in rejecting my amendment. Between now and Report will the Government at least give careful consideration to the report of the Delegated Powers and Regulatory Reform Committee? It has reported only in the past few days and it covers this issue.

[Lord Taylor of Holbeach]

Of course and I would like to feel that the noble Lord would know that I wish to continue the very useful dialogue we have had on this Bill. I felt it would help the noble Lord if I defined the areas where I feel there is going to be more scope for improving the Bill—as we would both describe it—and areas where I think it is not going to be possible. I thought it was better to be upfront and frank about it and I hope that the noble Lord will understand that. We want to maintain our dialogue because, despite the difficulties the Bill had in its early days, I believe this could be a very useful piece of legislation and one which suits both Government and Parliament in its operation provided we put the proper work into the foundations. We will have a chance to talk about that when we come to other amendments in this now slightly enhanced grouping.

As I said, this is why I cannot accept Amendment 118B or Amendment 176 in the name of the noble Lord, Lord Dubs, which makes provision regarding the commencement date of amending orders using wording which appears to be drawn from the Civil Contingencies Act. That Act was designed to create a framework for dealing with emergency regulations, which, by their extreme nature, circumvent the usual channels of parliamentary scrutiny. I do not accept that there is a parallel between such orders and those which would be made under this Bill.

Originally my speaking note at this point mentioned sunsetting; then my speaking note did not mention sunsetting because the amendment of the noble Lord, Lord Goodhart, was going to be taken separately. If the noble Lord does not mind I will put it at the end because I think it is quite important that I can say a few words on it.

Amendment 176 would prevent an order being made under this Act from applying to more than one body or office. I understand the thinking behind the amendment which seeks to ensure proper parliamentary scrutiny of these important orders. However, I am also anxious that the Bill is not amended in such a way that will restrict the sensible decision-making of departments or overburden Parliament with a requirement to consider separately multiple orders of a similar class. I am thinking, for example, of the multiplicity of drainage boards which might have similar requirements for secondary legislation. I hope that any wording covering this would not exclude that because it would not be in the interests of efficient use of parliamentary time, particularly given that the changes to be taken forward by the said orders will in most cases have been debated thoroughly in primary legislation.

We do not accept the argument that in all cases the use of omnibus orders would necessarily reduce the level of parliamentary scrutiny. I should also say to the noble Lord that the particular amendments under discussion would have what I believe are unintended consequences by preventing any orders to merge bodies using the power in Clause 2 as such orders would by their nature apply to more than one body or office. However, I am willing to consider again whether some form of restriction on the use of omnibus orders might be appropriate. I would be happy to discuss that with the noble Lord prior to Report stage. So that is another item for our agenda.

Amendment 177 would remove the provision in Clause 27 that aims to give certainty to the order-making procedure and to avoid lengthy debates on hybridity that could unnecessarily delay reforms from being taken forward by Ministers. This sort of provision is not without precedent; nor does it broaden the powers of Ministers in any significant way. Indeed, similar provisions form parts of a number of Acts passed by the previous Administration, including the Regional Development Agencies Act 1998, the Freedom of Information Act 2000, the Charities Act 2006, the Climate Change Act 2008 and the Equality Act 2010. In addition, I am happy to assure the Committee that the Government’s initial assessment was that none of the proposed orders to take forward the reform of bodies listed in Schedules 1 to 6 could be considered hybrid.

Amendment 178 would require an annual report from a Minister regarding the use of order-making powers. I understand that the intention of this amendment is to ensure that the Government are properly held to account for their use of these powers, which is of course right and proper. However, the exercise of the powers will be a matter of public record, as is the case in the exercise of any powers made by statutory instrument. In addition, parliamentarians have a variety of means by which to question the Government on all aspects of policy relating to public bodies via Parliamentary Questions and the Select Committee process. I am unclear what is expected to be gained by the creation of a new reporting burden.

It is also the case that these powers will not be exercised centrally via the Cabinet Office but elsewhere by individual Ministers in departments, who will each have set out their own approach to public body reform in their departmental business plans. It is by reference to those documents that the Government have committed to be held to account and departments will report quarterly on them as a matter of course.

I turn to my noble friend Lord Goodhart’s amendments, which seek to sunset the order-making powers contained in Clauses 1 to 6, 13, 17 and 18 so that they could no longer be used after the dissolution of the present Parliament. As noble Lords will know, perhaps all too well, this is not the first time that we have debated this issue. Since our first day in Committee, the architecture of the Bill has changed as the Government have listened and responded to concerns raised by noble Lords. Most recently, that has resulted in the removal of Clause 11 and Schedule 7. For that reason, this is a timely debate as it allows the Committee to consider the issue in the new context in which we find ourselves.

The issue of sunsetting all the parts of the Bill is a complex one. I can see logic in not leaving bodies in schedules in perpetuity; I think that the noble Lord, Lord Hunt, and my noble and learned friend Lord Mackay made a similar point. Although this is something that the Government are still considering, there is perhaps more merit in the option proposed recently by the noble Baroness, Lady Royall, of sunsetting the contents of the schedules to the Bill rather than the powers themselves. That is all the more persuasive in the light of the removal of Schedule 7, which has drastically limited the scope of these powers, something that had not happened when my noble friend Lord Goodhart tabled his amendment.

Inserting a sunset clause that would limit the period in which powers could be used could now be counterproductive and potentially leave us in the same position as we are in today—that is, without a mechanism to take forward reforms following the regular review of public bodies that the Government will take forward, which I hope will continue in future. By contrast, leaving the powers on the statute book would leave open the possibility for Parliament to debate and consent to the repopulation of the Bill’s schedules through later primary legislation, without having to cover what would be well trodden ground. However, as I made clear to the noble Lord, the Government have already committed to consider this issue further prior to Report stage. I do not intend to renege on that agreement. I am happy to engage on this issue with my noble friend Lord Goodhart and other noble Lords. In that spirit, I hope that he will not press his amendment.

I thank all noble Lords who have contributed to this debate and who have engaged in discussions at earlier stages as this is a culmination of other debates on mechanisms in this Bill. I have made it clear that we continue to look at Clause 8. I hope that my responses today and the amendments and the commitments that the Government have already made reassure the Committee that this Government will ensure that the procedure applicable to orders made under this Bill is proportionate and sensible and allows for proper parliamentary scrutiny of Ministers’ actions. In light of those assurances, I invite my noble friend Lord Newton of Braintree to withdraw his amendment.

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[Lord Mackay of Clashfern]

I have been privileged to put my name to the amendment and of course I support it wholeheartedly. It makes clear the legal framework within which the ministerial powers under the Bill may be exercised. I thank my right honourable friend Francis Maude for seeing me on this matter and I assure the noble Baroness, Lady Royall, that the consultation right across Whitehall was necessary. That is perhaps one of the reasons why we were not quite as early with this as some of us might have liked. I thank members of the Bill team very much for the patience that they exhibited in listening to me preaching to them about this, in a manner to which your Lordships are accustomed.

[Lord Hunt of Kings Heath]

My Lords, I say to the noble Lord, Lord Lester, that if he continues to table amendments of this quality he will be very welcome to move them after midnight, day after day. I, too, thank him, as this is an important amendment. It provides considerable reassurance to noble Lords about how the Bill will operate when enacted. I am grateful to him; it goes right back to that first vote on day one in Committee, which seems a little time ago. I also thank the noble and learned Lord, Lord Mackay, for his great assistance, and the Bill team and the Minister. This is a very positive outcome.

[Lord Norton of Louth]

I add my thanks to the noble Lord, Lord Lester, and all those involved in generating the amendment. I have previously made the point that, in terms of parliamentary scrutiny, the work on the Bill has been an example of best practice. The amendment is a particularly fine example of that in terms of the consultation that has taken place to produce an amendment for which there is agreement throughout the House. It is an excellent addition to the Bill.