Public Bodies Bill [HL]

Lord Pannick Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Maclennan of Rogart]

I am very grateful to my noble friend Lord Elton for making that clear. There is a difference; in fact, there are at least two differences which may be of some significance, between government Amendment 60A and my Amendment 61AZ. The first is that in my proposal the Minister should be permitted to make an order only if he considered that,

“the order will achieve one or more of the objectives in subsection (1)”.

That embodies two points; first, that there should be an expectation on the part of the Minister that the power, “will achieve” one of the purposes; and, secondly, it does not require all the purposes to be achieved by the use of the power.

The Minister referred to my amendment as being in some ways less than his, in that it refers to,

“one or more of the objectives”,

whereas, in his amendment, the Minister has to consider,

“that the order serves the purpose of improving the exercise of public functions, having regard to—”.

It appears to me that the listing of,

“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”,

is a collective, not a single test, or even one to be applied to two of these criteria. Therefore, I felt that the amendment that I had tabled was, in some ways, more realistic because it is quite often the case that effectiveness and economy are not necessarily the same and not necessarily both achievable by a measure of government. That is, it is desirable that they should all be achieved, but it cannot be certain and if there is a choice, it ought to be possible for the Minister to make that choice.

This is not a form of words, as I understand it, which just bows in favour of motherhood and apple pie; it is, as I see it, an opportunity for the Government to indicate, in the report that they will produce before Parliament considers the legislation, what it is that is moving the Government. I think it reasonable that, if they could demonstrate greater efficiency, greater effectiveness or greater economy, they should be able to say so and not necessarily have to tick all four boxes. However, this is probably a matter for construction by greater legal brains than mine and consequently, I hope that the matter might be reconsidered at a later date. I am very grateful to the noble Lord, Lord Taylor, for the changes he has proffered to the House, which are a substantial improvement on what went before.

[Lord Pannick]

My Lords, I, too, warmly welcome the amendments brought forward by the Minister. I, too, associate myself with all the tributes paid to him. I hope that the praise from your Lordships’ House does not cause him any embarrassment back at the ministry. I am a little disappointed, however, that he did not feel able to respond positively to the amendment in the name of the noble Lord, Lord Newton of Braintree, who all noble Lords will wish to see back in his place as soon as possible. That amendment would add fairness, justice, openness and transparency to the list of factors to which the Minister must have particular regard. The Minister suggested in his opening remarks that to add such concepts to the clause would impose what he described as an “abstract evidential burden”. I am sure that on reflection he will recognise that the concepts introduced by the noble Lord, Lord Newton, are no more abstract than the concepts of efficiency, effectiveness, economy and accountability that are included in his own very welcome amendment. I ask him to reflect further on the criteria in the amendment of the noble Lord, Lord Newton.

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[Viscount Eccles]

My Lords, I should like to take this opportunity to pay tribute to Lord Colville of Culross. Lord Colville was serving on the Merits Committee when I joined it some five years ago. I am not serving on it now, of course, because I did my four years and then got cycled off. Lord Colville taught me an enormous amount about consultation. It was his subject: he knew it from A to Z.

The Merits Committee of your Lordships’ House considers more than 1,000 orders every year. It looks at the Explanatory Memoranda. I can tell you for sure that the members of the committee usually go first to paragraph 8, the consultation paragraph. There is an enormous amount of expertise in your Lordships’ House in assessing not only whether consultation has been properly done and whether the 12 weeks were sufficient but also what has been left out or might have been elided. Noble Lords are extremely skilled in going back to departments and questioning the presentation of these paragraphs. That also applies to the paragraphs in the impact assessment, if there is one required.

I imagine that the orders in the Bill, when it becomes an Act, will be submitted to a committee of this House as well as, presumably, to a committee of the other place—that is clear from the language in the Bill. This clause includes, as well as paragraphs (a) and (b), paragraph (g), which says,

“such other persons as the Minister considers appropriate”.

If I am allowed from the Back Bench to give an assurance, I can give noble Lords a little Merits Committee assurance that, if a committee of your Lordships’ House considers that the Minister has missed out on who it is appropriate to consult, then his department will be pretty sharply told. I hope that we do not underrate the capability of this House to make sure that consultation is done in a really workmanlike manner. Of course, it is never satisfactorily done because there are winners and losers at the end of consultation. Nobody is completely satisfied for ever that the consultation has been properly done but if there is a way of monitoring consultation it certainly exists in your Lordships’ House.

[Lord Pannick]

My Lords, I support Amendment 65, in the name of the noble Lord, Lord Hunt of Kings Heath, for three reasons. First, these remain very broad and extensive powers to abolish or modify a public body. It seems essential that there should be the broadest of consultation obligations so that the Minister is properly informed before a decision is taken. Secondly, public consultation does not require considerable expenditure if modern methods of communication are used—the point already made by the noble Lord, Lord Maclennan of Rogart.

Thirdly, if these powers are to be exercised in relation to public bodies—we are talking about public bodies—surely it is right and proper that the Government should consider the comments of all sections of the public who feel that they have something to say. Indeed, if there were to be no specific consultation duty in relation to members of the public and nevertheless a member of the public, knowing of the proposal, submitted representations to the department, then I assume that the department would consider them and take them into account in reaching its conclusion. With respect, I do not share the view of the noble Viscount, Lord Eccles, who drew attention to Clause (10)(1)(g), which provides that the Minister must consult,

“such other persons as the Minister considers appropriate”.

It seems to me highly desirable that there should be clarity in the Bill that there is an obligation to consult members of the public rather than leaving it as a discretionary matter.

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[Lord Hunt of Kings Heath]

My Lords, in the light of the debate, given that this is a very modest amendment, would the Minister consider accepting Amendment 68? I beg to move.

[Lord Pannick]

I support the noble Lord’s observation. The Minister, in his response to the previous amendment, agreed that a full public consultation would be highly desirable in many, if not most, circumstances, but in some cases it would not be appropriate to have a full public consultation, and it seems to me that Amendment 68 deals precisely with that point.

[Lord Taylor of Holbeach]

My Lords, I am under instructions to resist—I think that is usually the phrase that is used. However, I understand the arguments that have been put forward by noble Lords to have a requirement, where public consultation does not take place, that at least the proposal is put on the website. I think that the Government are in a position to consider this and, if necessary, will bring forward an amendment at a later stage.