Public Bodies Bill [HL]

Lord Mayhew of Twysden Excerpts

Wednesday 9th March 2011 Lords Chamber

[Baroness Andrews]

My Lords, it is a pleasure to follow the chair of the Delegated Powers and Regulatory Reform Committee, and I reinforce what she said. I declare an interest as the chair of English Heritage and as a member of that committee.

I will address the stand part debate regarding Clause 5, but it is difficult to do that without referring to Clause 11, Schedule 7 and indeed to Clause 8, which we will come on to later. I think that I am the first Member of this House—in this debate anyway—to congratulate the noble Lord on his success in getting rid of Clause 11 and Schedule 7. I know that as we proceed through the Bill today, he will be inundated with congratulations on what he has achieved regarding those clauses; it will be like his birthday. My thanks are very much a foretaste of joy to come.

I have always seen this Bill as more the product of William McGonagall than of Machiavelli in terms of how it had been put together and what it represented. Even for a Government who are fast establishing a reputation for recklessness, the Bill was a step too far. As I recall, the kindest thing that was said in our earlier debates about Schedule 7 was that it was “Kafkaesque”; it certainly created a feeling of victimisation without any sense of the crime that had been committed or indeed the sentence and the punishment that might follow.

I could end there, with unqualified praise, but I must pick up on the points that the noble Baroness, Lady Thomas, made. We are not yet done with this Bill—there are more changes that we have to press the Government to deliver. The problem that was widely recognised in this House, certainly at Second Reading and earlier in Committee, is that the whole Bill, frankly, is misconceived. It is an object lesson in making policy by prejudice. It demonstrates a failure to understand the nature, the role and the effectiveness of public bodies. It is an object lesson in how not to make legislation that will provide the substance of many a PhD thesis in future.

In recent days, the Committee has done its work very well by taking individual bodies and holding the implications of the Bill up to the light, defending their future and fate. The stand part debate allows us to say again to the Minister that it is not too late to recognise the fundamental problem that has been established in Clauses 1 to 5: that the powers in these clauses are far too wide. I echo what the noble Baroness, Lady Thomas, has said: Clause 5 is the widest power of all. We know where we are with Clauses 1 to 4; we know what “abolition” and “merger” mean. However, we do not know what Clause 5 implies and those bodies listed in the schedule certainly do not. It is very different in scope. It modifies or transfers functions, purposes and objectives, and could change the rationale for an entire organisation at a stroke—all by ministerial edict. Given the importance of the bodies that are listed in Schedule 5, this is a very serious predicament in which to put them.

It is no wonder, therefore, that the Delegated Powers and Regulatory Reform Committee reiterated in its 11th report on Monday that our original concerns were unmet. In our original report we were concerned about the inappropriate delegation of powers in Clauses 1 to 5. “Inappropriate” is a word that we have returned to time and again on this Bill. We are still concerned about those powers, which are still inappropriate. We said that the delegation of powers in Clauses 1 to 5 was “inappropriately broad in scope” and that there should be appropriate parliamentary scrutiny. That is still the view of the committee. We suggested in our earlier report that if Clause 11 were to be removed, it might make it easier for the powers in Clauses 1 to 5 to be better calibrated to matters that are appropriately left to delegated powers.

Clause 11 will, I am pleased to say, be removed. However, the powers in Clauses 1 to 5 are as yet unchanged. I say “as yet” because the Minister has said that he is considering these concerns. I certainly welcome that. I hope he will be as successful in dealing with that as he was in dealing with Clause 11 and Schedule 7. A crucial concern that we want him to consider before Report stage is spelling out more specifically the purposes for which the powers may be exercised. In Clause 8, the existing references are to matters to which the Minister may simply have regard. That is not strong enough. They do not deal with the fundamental problem of the Bill’s silence on the general purposes for which Parliament expects the powers to be used. They need to be so specified. It is extremely important that the Minister should address that point, at the end of either this debate or the debate on Clause 8.

[Lord Mayhew of Twysden]

My Lords, I, too, am a member of the Delegated Powers and Regulatory Reform Committee. I support everything that my noble friend Lady Thomas has said and much of what the noble Baroness, Lady Andrews, has said. She will not expect me, as a loyal supporter of the coalition Government, to endorse every epithet that she used— certainly not the word “reckless”, for which I might substitute the word “courageous”— but I warmly endorse the grateful compliment that she paid to my noble friend Lord Taylor for the changes that he has been more than instrumental in securing. As somebody who contributed to a rather torrid debate at Second Reading, when tremendous dissatisfaction with the Bill was expressed, I am extremely grateful that the answers that my noble friend returned with have turned away wrath for the time being. However, as the noble Baroness, Lady Andrews, has just said, that wrath has not gone away. It may have been turned away but it has not gone away entirely. I am afraid there is still more to come, particularly on expressing in the Bill the purposes for which these powers are to be used.

I take it to be a principle of the rule of law that an executive power may be exercised only for one of the purposes for which it was conferred. A ground that appears frequently in court judgments on judicial review proceedings is that a power has been purported to have been used in a way that was not authorised by the legislation giving rise to it. There is a good way to go yet, but I am heartened by the letter that my noble friend Lord Taylor sent to the committee—in appendix 2 to the report—in which he says that he is grateful to the committee for its report and goes on to say that the Government,

“continue to consider, in particular, the committee’s concern that the Bill should give greater clarity in clause 8 to the purpose for which the powers may be exercised”.

I hope that his efforts in that regard will be just as successful as they have been in relation to the appalling Schedule 7 and the equally alarming provisions affecting forestry. I hope he will be able to tell us that there is work still to be done and that he is looking forward to doing it.

[Lord Walton of Detchant]

My Lords, I feel just a little guilty in speaking to this amendment. On several occasions over the past few years, in debates in your Lordships’ House on the health service, I have said openly that I was deeply concerned about the National Health Service and health bodies being subject to control by “an intolerable quangocracy”. Hence, when I learnt that the Government were planning a bonfire of the quangos, I felt a minor sense of relief. However, having seen the detail, particularly the provision in Clause 5 that the Minister may modify by order the functions of a body or the holder of an office specified in Schedule 5, I am afraid I still have considerable concerns.

I was greatly relieved when the Minister agreed to remove Schedule 7 a few days ago. Looking at two organisations with which I have a special concern and interest—namely, the Human Fertilisation and Embryology Authority and the Human Tissue Authority—I am deeply concerned. I know full well that these bodies will be the subject of individual amendments, which will be discussed a little later in our debates. However, the principle embodied in Clause 5 is one that causes me considerable anxiety. The Government’s proposal that these two bodies should be merged with the Care Quality Commission, for example, carries all kinds of serious concerns and hazards. We may come to that later.