Public Bodies Bill [HL]

Lord Norton of Louth Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Norton of Louth]

My Lords, like others, I have no problem with the declared ends of this Bill, but I have a fundamental objection to the means.

I declare an interest as a member of the Constitution Committee, like my noble friend Lord Crickhowell. Many speakers have already referred to our report but perhaps I may remind the House of paragraph 13, which has already been mentioned by the noble Lord, Lord Soley:

“The Public Bodies Bill … strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber”.

We go on to say that the Bill,

“is concerned with the design, powers and functions of a vast range of public bodies, the creation of many of which was the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies”.

My noble friend Lord Blackwell thinks that we should be denied such opportunity because it would take too much time. That does not follow at all. One Bill can make specific changes to a number of Acts.

The crucial point is one of principle. Our report makes clear the objection to the Henry VIII provisions contained in the Bill. I am conscious that Parliament has variously granted such powers before, but that is not an argument for extending their use and certainly not for accepting them on the terms embodied in this Bill. If they are to be used, there has to be a compelling case; if they are employed, they need to be subject to rigorous parliamentary scrutiny. Neither condition applies in this case.

As Liberty notes in its briefing on the Bill, amendments to legislation should be properly debated and considered by Parliament with the ability for amendments to be proposed and implemented. As it says, secondary legislation should not amend primary legislation in relation to anything other than the most minor details. We are not dealing here with the most minor details. We are dealing with a measure which directly affects bodies established by statute. We are dealing with a measure which not only creates the basis for some of those bodies to be abolished, merged or have their functions modified, but also provides for a great many to be subject to a form of living uncertainty. The principal argument for drafting the Bill in this way is not one of principle but rather one of convenience in that government may not have the time to get individual measures through in the future. That is insufficient to overcome the basic problems inherent in this measure. My noble friend Lord Blackwell described it as a “bold Bill”. I regard it as a lazy Bill.

The safeguards that it embodies are inadequate. For orders made under the Human Rights Act and the Legislative and Regulatory Reform Act, there is at least some degree of parliamentary supervision. There is no such supervision provided for in this Bill. As we have heard, orders are subject to the affirmative resolution procedure. In other words, as my noble friend Lord Roberts of Conwy explained, they are subject only to short debate, are not amenable to amendment, and are not usually rejected by this House. There is no provision, as with super-affirmative resolutions, for consultation or to take into account representations made on a draft order. If an order is introduced to transfer a body from Schedule 7, Parliament will be in the dark as to what is then likely to happen to it. It has to await an order made under the schedule to which it is transferred.

There are also limited safeguards in respect of Ministers contemplating orders under Clauses 1 to 6. The presumed safeguard in Clause 8(2), itself limited, has to be read in conjunction with Clause 8(1) under which Ministers must have regard to the need to achieve increased efficiency, effectiveness and economy in the exercise of public functions. In short, change may be driven by executive assessment of effectiveness. There may be a case for that, but it should not come under the rubric of a safeguard. Various safeguards included in the Legislative and Regulatory Reform Act are omitted.

Given the debates we had on the Legislative and Regulatory Reform Bill and before that on the Regulatory Reform Bill, it is remarkable that the Government have sought to rely solely on the affirmative resolution procedure. Also, given Section 3(6) of the Constitutional Reform and Governance Act 2010, it is surprising that officials appear unaware of the constitutional import of what is proposed.

I turn to Schedule 7. I was going to say more, but many noble Lords have dealt with it in some detail. Again, constitutional principles are engaged, not least, as the noble and learned Lord, Lord Woolf, said in his powerful speech, the constitutional separation of the Executive and the judiciary. The schedule includes bodies that the Institute for Government refers to as independent public interest bodies, bodies which require statutory independence from government to fulfil their duties with public confidence. They fulfil roles where impartiality is not only required but needs to be seen to be exercised. The institute gives various examples, as indeed does Justice in its briefing on the Bill. These bodies have to operate at arm's length from government and may indeed have to adjudicate in cases to which the Government are a party.

Let us take the Information Commissioner. He may have the strength of character not to be influenced by the prospect of an order being brought forward to transfer his office to another schedule. Yet imagine what may happen if in a particular case he finds in favour of the Government and decides information held by a department does not have to be disclosed. Critics may then say, “Well, he would reach that conclusion, wouldn't he? He's worried that otherwise the Government may move to abolish his office”. So long as the Information Commissioner is listed in Schedule 7, that danger will always exist. I know that the Government have no intention that such functions should be affected by government review. However, for a Minister to say that that constitutes the Government's intention is inadequate. Current intentions do not bind future Governments. As long as the Bill continues as drafted, Schedule 7 has the potential to have a chilling effect on the bodies listed.

I very much agree with the noble Lord, Lord Lester of Herne Hill, that we should be looking for solutions to problems, not simply identifying problems. The prime mischief in the Bill is to be found in Clause 11 and Schedule 7. The Government need to consider as a matter of urgency the use of super-affirmative resolution procedures, utilising other safeguards embodied in the Legislative and Regulatory Reform Act and, as recommended by the Institute for Government, removing independent public interest bodies from Schedule 7. I regard those as the minimum necessary changes. I am not yet persuaded that Clause 11 and Schedule 7 should remain in the Bill.

There is an alternative to the Schedule 7 approach. The Government plan to have a triennial review of non-departmental public bodies. The more appropriate approach would be to have a public bodies Bill in each Parliament, thus enabling concrete proposals to be put before Parliament and given proper scrutiny by both Houses. That would avoid the objections that attach to the Bill.