Public Bodies Bill [HL]

Lord Mayhew of Twysden Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Mayhew of Twysden]

My Lords, it is a great pleasure to follow my friend and fellow Middle Templar. Perhaps I may begin by declaring what may be thought to be an interest in that I am a member of your Lordships' Delegated Powers and Regulatory Reform Committee, which will be considering this Bill tomorrow.

Since this is a rather torrid debate for my noble friend the Minister, I should like to begin by offering him not simply a word of support for himself but a very warm measure of support for the Government's objectives in this Bill. Like other noble Lords today, I distinguish the objectives from the means. I refer, as others have, to what was said on 14 October by the Minister for the Cabinet Office and it is worth saying again:

“The landscape for public bodies needs radical reform to increase transparency and accountability, to cut out duplication of activity, and to discontinue activities which are simply no longer needed”.

I find this entirely commendable, and it is probably rather long overdue in some instances. It finds expression in Clause 8, which says that a Minister in,

“considering whether to make an order under sections 1 to 6”—

which are the effective, some might say the killer, sections—

“must have regard to the … objectives [of] … achieving increased efficiency, effectiveness and economy in the exercise of public functions [and of] securing appropriate accountability to Ministers in the exercise of such functions”.

There is an additional statement of policy which I do not think has been referred to today, again in a Written Statement, which says:

“All remaining public bodies will be subject to a rigorous triennial review to ensure that the previous pattern of public bodies often outliving the purpose for which they were established is”—Official Report, Commons, 14/10/10; col. 27WS]—

brought to an end. I am sure that that would be salutary, too, and in these straitened days can hardly, I should have thought, be reasonably opposed.

The Government's objectives cause me no problem at all: I welcome them. What upsets me, as with other noble Lords today, are the means by which they are going about achieving them. We have heard today some profoundly important speeches—important and troubling speeches. All Governments are attracted by the lure—some are seduced by it—of legislating more summarily than the procedures of primary legislation would permit. All Governments are attracted by that for rather obvious reasons.

What are these allures? It is worth our having them in mind, although of course they will be familiar to so many of us. However desirable a debate on the policy or effect of the order may be thought to be, debate will be limited in either House to one and a half hours save in the most exceptional circumstances. I shall come back in a moment to what my noble friend Lord Freeman said about that, something with which I warmly agree. But that is the rule at present. The order will never be amended because there is no power to do so, and in practice by convention it will hardly ever be rejected. I believe—I have not checked it myself—that this has happened only twice in your Lordships' House in the past 45 years.

All Governments find these allures seductive, but I am aware of none who have succumbed on the industrial scale of the Bill before us tonight. Of course there are myriad occasions when to make use of subordinate legislation is entirely proper, wholly reasonable and for the public good—where, for instance, the order-making power is tightly circumscribed by the statute from which it derives; the Minister’s discretion is closely defined and not left, as in this Bill, entirely at large; and the use of parliamentary time in primary legislation would be quite unnecessary. Those are the sorts of occasions where the use of subordinate legislation is entirely sensible. But that is not this case.

On the contrary, this case has attracted the most trenchant condemnation. We have heard it repeated several times today, so I shall spare your Lordships, and the Government in particular, the pain of hearing it again. It is the most extraordinary thing that a Bill should be brought forward with that blast, as it were, ringing in their ears. I should think it is unprecedented, but it is not entirely surprising. Most of the public bodies to which the Bill relates, some 340, have derived their existence and their functions from parliamentary authority. It is an absolute certainty that in the vast majority of them the process by which that authority was secured included lengthy debate preceded by substantial consultation and probably involved quite substantial amendments time and again accepted by the Government. This is the cut and thrust, the to and fro, of parliamentary democracy, and it leads to acceptable and practical legislation.

These debates could now be removed by order in what the Government will consider a proper case without the benefit of anything like that. They are all absent from any requirement upon the Minister seeking to make an order in respect of any public body listed in Schedules 1 to 6. When one considers the character and calibre of many of those bodies, this is wrong in principle. I never thought to see power taken that some of the functions of the DPP for England and Wales could be transferred by order to a Minister, subject only to a short debate on an affirmative resolution.

If the Bill is to prosper, my noble friends should think hard about, as a minimum, introducing a requirement for a form of super-affirmative resolution. I know that the Minister referred encouragingly to this when he introduced the Bill. This was illustrated in the Legislative and Regulatory Reform Act 2006. It would require Ministers first to lay an order and then to take account of the consultation that follows it and committee reports received about it and only thereafter could they bring the order back for approval. That is really important. It is also extremely important that my noble friends should consider very carefully what my noble friend Lord Freeman said about enlarging the standard period of an hour and a half. Why should there be such a restriction? I agree entirely with what he said.

In addition, the Bill needs to specify the functions that might be abolished or amended and who the desired transferees of functions might be. At present, ministerial discretion is quite unconfined. These improvements seem to be a minimum.

Lastly, I come to the worst bit of all. By Clause 11, which we now know so well, Ministers are permitted by order to bring any of the 150 bodies listed in Schedule 7 into the ambit of the preceding six schedules. We heard the sort of judicial bodies that are caught by that in a compelling speech by the noble and learned Lord, Lord Woolf, which was endorsed entirely by the noble and learned Baroness, Lady Scotland. The Explanatory Notes rather engagingly confess at paragraph 87 that at the time of going to press there was,

“no policy intention to make changes to their status or functions”.

In other words, Clause 11 is included in the Bill on a “just in case” basis. That is no basis for taking Henry VIII powers or, indeed, many other powers. The clause is inappropriate for subordinate legislation, and it should be removed from the Bill.