Public Bodies Bill [HL]

Lord Mackay of Clashfern Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Blackwell]

I thank the noble Lord for his intervention. I was going on to say that, if there were to be a change in procedures, the change would out-favour the one recommended by the noble Lord, Lord Dubs, to enable that debate to take place on the Floor of the House. However, I am reluctant to see a committee venture into areas that became highly controversial and that moved outside the narrow debate around the appropriateness of the regime and its constitutionality, and end up, in effect, having votes in committees that should be votes on the Floor of the House. It would be a wrong step to try to move committees into taking that view.

Given the way in which orders are dealt with, there is an argument for considering the suggestions made by the noble Lord, Lord Dubs. A more significant issue is whether we ought to have and exercise the power genuinely to vote on these orders. Frankly, if we do not, it is all a bit of a charade anyway. Therefore, I support those who have suggested that it is worth, in the wider scope of things, looking at reforms to procedures to allow amendments to be made and voted on on the Floor of the House and reconciled with the other House. However, that is not achieved by the Opposition’s amendment to move to a super-affirmative procedure, which would create undesirable complications. The way in which the Government have proposed to deal with it is the best compromise within the existing structure of orders.

[Lord Mackay of Clashfern]

My Lords, on Amendment 69 and “must” instead of “may”, it is a normal convention on the whole that Ministers, if they have the power to do something, are left with that, but it is not a major point one way or the other. However, as for the enhanced procedure and the super-affirmative procedure, that is primarily a matter for Parliament to consider generally, not just in relation to the Bill. The way in which I have seen this Bill develop suggests to me that everyone in the House is agreed that there should be a procedure for a review of public bodies from time to time. The noble Lord, Lord Hunt, has made that very clear in moving this amendment.

We have gone a long way to developing that kind of procedure for the future, because the Bill has in it the power to continue with amendments to the schedules. It now provides for certain entities in the schedules to drop out after a time—a type of sunset clause for the schedules. Therefore, you can always bring one in. If and when another review is required—who knows, it might not be until another Government come along—the procedure that has been laid down here would work perfectly well simply by introducing a public general statute to amend the schedules. It might be among the shortest statutes ever proposed, which of itself would be a good thing.

Here we have a situation whereby, before the procedures start, you have to get the body in question into a public general statute such as the one that we are considering now. Parliament has already used its power to allow that; what the procedure should be thereafter is a matter to work out in practice as the Bill goes forward. I am not in favour of enacting the super-affirmative procedure where Parliament has already decreed the particular subject matter of the Bill. I prefer that that is left. As the noble Baroness, Lady Thomas of Winchester, suggested, this whole subject needs to be considered in due course, but not as part of the present Bill. After all, we have done a fair amount on the Bill already and there is a limit to what is practically possible.

[Lord Neill of Bladen]

My Lords, the noble Lord, Lord Adonis, expressed the view that there should be an opportunity for parliamentary review when the Minister has decided that the situation is one in which he wants to make an order. Imagine the situation; there has already been consultation with whoever are the proper people to be consulted and, in the light of that, the Minister has concluded that it would be appropriate to make an order. What we are contemplating now, under Amendment 69, is the fact that under the Bill the Minister has time to consider whether he will tell Parliament what he wishes to do, complying with the obligation of setting out an explanation of what he is up to and what the evidence tells him, or whether he will just not tell the Houses what his intentions are, if this is going to be embarrassing or if he does not have the time. That is a discretion that ought not to be conferred. If the consultation has led the Minister to a particular conclusion and he is about to make an order, it is entirely appropriate that we, as Parliament, retain the power to look at his reasons and form our own view about the matter.

--- Later in debate ---

[Lord Lester of Herne Hill]

I am in more of a muddle now than I thought I was. Clause 11(1) proceeds on the basis that,

“the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.

That is the premise. If that is the premise, surely the Minister will have to lay a draft order and an explanatory document. If that is the position and there is no scope for discretion at that stage—because he or she has already made the determination that it is appropriate to proceed—I do not understand why it does not say “shall” or “must”. It says “must” elsewhere and it seems to me that it is a situation where it is a “must” and not a “may”. Maybe I have got it wrong.

[Lord Mackay of Clashfern]

My Lords, the point that is covered by “may” rather than “must” is that, in the light of the consultation, even if the Minister wants to make an order, he may well think it is right to do something else first; for example, have further consultations and make modified proposals before he proceeds with the order. That is why, in this context, the word “may” is often used when many of us might have thought it was going to happen anyway. That is the reason and I believe it is a good reason.

[Lord Phillips of Sudbury]

My Lords, I hate to disagree with a noble and learned friend and former Lord Chancellor, but I have to disagree with the noble and learned Lord, Lord Mackay. It is quite clear that this is posited on the basis that, having had the consultation, having considered all things, the Minister then considers it appropriate to proceed with the making of an order. That is perfectly clear. He is then en route to making an order. It then goes on to say,

“the Minister may lay before Parliament”,

but surely, once the Minister is committed to making an order, he must lay it before Parliament.

[Lord Mackay of Clashfern]

I am sorry to respond, because this is Report and it is the last thing I want to do, but it seems to me that the point is that it says, “make an order”, it does not mean to say that it is an order in anything like the form that is thought of so far. The consultation might well open up new possibilities altogether. The Minister wants to make an order, he wants to proceed, he may do it this way or he may do something else in the way of further consultation and then go ahead with an order different in substance from what he had proposed in the original consultation. That is the reason for it.