Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 11th January 2011 Lords Chamber

[Lord Woolf]

My Lords, it is a while since I first addressed the House with regard to this Bill. I start my present remarks by saying that I acknowledge that the Government have made a significant improvement to the Bill in the action that they have taken. I congratulate the Minister and his team on the attention that they have given, particularly to the bodies associated with the courts that had been in Schedule 7. I feel much more comfortable with the Bill in consequence of the changes that have been made. However, I have to say that this Bill, which is sometimes referred to as achieving a bonfire of quangos, would in my view be further improved if there was to be a bonfire of Schedule 7. I hope that the further consideration of the Bill, which I believe is still continuing, will bring about that result.

I listened with great care to what the noble Lord, Lord Hunt, said about the provisions that are the subject of his amendments. I do not think that I can usefully add anything to that, apart from saying that when the boards were introduced—I was Lord Chief Justice at the time—arrangements were made for a senior judge, one no less distinguished than the present Lord Chief Justice, to serve on that board to express the views of the judiciary. However, I think that things have moved on since then, so the topic is much more debatable than it would have been some time ago. The arrangements for consultation between the judiciary and the departments with which they are particularly concerned are in general working smoothly, so the boards are no longer as important as they were in the early days of the unified criminal justice system.

On the inspectorate, I would urge that the speech that we have just heard from the noble Lord, Lord Ramsbotham, who probably knows more about inspectorates than anybody else in the country, should be listened to with care. The inspectorate for the courts system was not, if my recollection is correct, a proposal about which the judiciary jumped with joy when it was first suggested. It was thought—I would say with good reason—that there could be insuperable problems over the independence of the courts system if an outside inspectorate was to look in at what the courts were doing. All that I can say is that, in practice, the inspectorate has worked remarkably well, as have all the inspectorates, of each of which I am a fan. The inspectorates make a significant contribution to the proper functioning of the administration in the areas in which they operate. I do not think that it was intended to be suggested—and if it was, I would not agree with the suggestion—that the inspectorate should act as a sort of court of appeal. If the inspectorate keeps to administration, it can perform a useful function. That function will still have to be performed even if the inspectorate does not exist and, if the inspectorate is abolished, proper arrangements will need to be made to ensure that that happens.

[Lord Lester of Herne Hill]

My Lords, I apologise to the noble Lord, Lord Hunt, that I was not able to be here to hear his speech. I was upstairs in the Joint Committee on Human Rights, which has authorised me to ask the Minister whether, as we were given to understand, we will receive the human rights memorandum from the Cabinet Office so that our committee can do its job properly. That memorandum has still not been received and we want to finalise our report by next Tuesday. I hope that the Minister can tell us in his reply that what was promised many weeks ago will happen.

My second point in general support of the amendments is that, although it is admirable that some bodies of a judicial nature may be removed from the schedules by other amendments, if Amendment 175 in my name and in the name of the noble Lord, Lord Pannick—a paving amendment for which was approved by the House on the first day in Committee—is accepted by the Government and not sought to be reversed in the other place, the provisions in Amendment 175 will be relevant to our discussions today and hereafter. It is unsatisfactory that we are having this debate without knowing whether Amendment 175 will stand. Importantly, Amendment 175 would apply not only to courts but to any body—whether a court or not—that performs a judicial function and it would deal with the issue of independence raised by the noble Lord, Lord Ramsbotham.

In a sense, we are putting the cart before the horse because a failure to insert into the Bill the criteria against which all these decisions can be measured means that we are having to proceed piecemeal, body by body, at enormous and appalling length in the Committee process. I respectfully urge the Government to accept these amendments for all the reasons that have been given so far but to deal with the system of the Bill as a whole by indicating at an early stage that Amendment 175 or a similar provision will bind Ministers when they exercise their delegated powers. That is the price that Ministers must pay if they are not to proceed by way of primary legislation. There need to be constitutional limits on the powers exercised by Ministers, as Committees of this House have indicated in the past.

[Lord Newton of Braintree]

My Lords, I am afraid that I cannot claim, like the noble and learned Lord, Lord Woolf, not to have taken part recently in proceedings on this Bill, because I have been a persistent defender of my Front Bench, nor do I intend to stop being so today.

However, I want to associate myself in two respects with the remarks of the noble Lord, Lord Ramsbotham. First, I think that the Bill leaves—to put it mildly—a lot to be desired. Secondly, I think that the noble Lord, Lord Taylor of Holbeach, is to be congratulated on the way he has dealt with this poisoned chalice. I am glad to see that, if I have read the runes aright, the person speaking to the proposals today will be a Minister from the Ministry of Justice, which is where the proposals originated from and where any blame for them, if blame is justified, should lie.

By way of other brief preliminary, I should say that when I first saw the schedule of headline decisions that was published in early October—this picks up a point made earlier by the noble Lord, Lord Lester—I could find no intellectual coherence at all in the Ministry of Justice’s proposals, which seemed to be piecemeal suggestions with no connection between them whatever. I hope, therefore, that at least we may have some coherent explanation about the pattern of these proposals and decisions for procedure rule committees, justice councils and other bodies, including CAFCASS, that are scattered about, most of which are now to be withdrawn from Schedule 7 by the amendments that have been helpfully tabled by the noble Lord, Lord Taylor of Holbeach.

However—I do not know whether the noble and learned Lord, Lord Woolf, has spotted this—unless my eyes have deceived me the Civil Justice Council will potentially remain on the list of bodies in Schedule 7. If I have that wrong, I would be glad to be told. That links with my own frequently expressed concern about the Administrative Justice and Tribunals Council—in which I have declared an historical interest—which has been separated out and put down for the chop in Schedule 1. There is no intellectual coherence at all to the proposals. I would like to hear some coherence this afternoon.

I will make three other points. First, the noble Lord, Lord Hunt, asked some good questions. My answers might not necessarily be the same as his in all cases, but those questions need answering. Secondly, I share almost completely the doubts of the noble Lord, Lord Ramsbotham. We are getting rid of too much independent outside inspection or oversight of bodies and are being told, in effect, that the Ministry of Justice can take care of itself and does not want these bodies breathing down its neck. That does not correspond with my views about how government in this kind of society should work or how it works best. Thirdly, I echo the concerns expressed by other noble Lords about the way in which the proposals have been handled. I reiterate what I said at the beginning because, as a House, we need some reassurance that, frankly, the Government know what they are doing.

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In the light of that explanation, I hope that the noble Lord will be content to withdraw the amendment.

Lord Lester of Herne Hill: Before the Minister sits down, perhaps I may first confirm that there will be discussions tomorrow. We very much hope that the pith and substance of Amendment 175 will be retained, subject to drafting improvements. One hopes that that will lead to a result that we can all agree upon. The one matter that my noble friend the Minister has not dealt with—because it is not his responsibility—is the question that I raised at the beginning about the Joint Committee on Human Rights. Can my noble friend the Minister please nudge my noble friend the other Minister for some kind of assurance for the committee so that we can do our job properly by getting the human rights memorandum this week so that we can deal with it when we meet next Tuesday?

[Lord McNally]

Like the seventh cavalry coming over the hill, my noble friend Lord Taylor nudged me to say that the Government will answer any questions that the JCHR has and will deal with that in correspondence with the committee. The Government consider that the provisions of the Bill are compatible with convention rights but I am sure that the promised exchange of correspondence will clarify that matter.

[Lord Lester of Herne Hill]

I am sorry but that answer is not compatible with the general approach of this Government and previous Governments to that committee. The undertaking that has been given in the past is that the Minister’s compatibility statement in every Bill is followed by a proper Explanatory Memorandum to enable the committee to do its job properly. Therefore, it is for the Government first to come forward with their account of why the Bill is considered to be compatible and the committee then comments on that, rather than the other way round. I very much hope that that can be reconsidered because otherwise the committee will have to complain about the fact that it has not had the usual memorandum from the Cabinet Office and therefore cannot do its job properly. That simply wastes public money and time.

[Lord McNally]

My Lords, one of the advantages of having Hansard and of having my noble friend Lord Taylor sitting next to me is that he will have heard that exchange, will read it carefully in the morning and respond to it appropriately.