Public Bodies Bill [HL]

Lord Phillips of Sudbury Excerpts

Tuesday 23rd November 2010 Lords Chamber

[Lord Pannick]

I have added my name to the amendments tabled by the noble Lord, Lord Lester of Herne Hill, for a simple reason: this is a bad Bill. It confers excessive power on the Executive. It is of fundamental importance to include in the Bill as many protective provisions as possible.

Amendment 1, read with Amendment 175, has a simple purpose. It would restrict ministerial powers so that they can be exercised only in a way that is compatible with judicial independence and human rights and freedoms; is used proportionately; and does not prevent a public body performing its functions to establish facts or to give expert advice independently and impartially. I cannot imagine that the Minister could possibly disagree with any of those well established principles. I suspect he might say that he is doubtful that such principles need to be expressed in the Bill. However, he does then need to explain to the Committee why such principles were expressly included in the 2006 Act. He also needs not merely to explain this question of precedent but to address the question of principle.

Given the breadth of the powers that the Minister seeks in the context of the Bill; given the concerns that were expressed about the scope of those powers by your Lordships’ Committee on the Constitution, of which I am a member, and by your Lordships’ Delegated Powers and Regulatory Reform Committee; and given the concerns expressed by many of your Lordships at Second Reading, it is of vital importance to identify in the Bill important constraints on the exercise of these powers. It is important for two reasons. It is important to ensure that future Ministers are as careful in their use of the powers as I am sure the Minister will be. It is also important to reassure public bodies and members of the public that we in Parliament have not lightly conferred such powers on Ministers, but rather that we have been anxious to emphasise in the Bill that there are important limits on what Parliament is willing to authorise Ministers to do.

The importance of Amendment 1, read with Amendment 175, is confirmed by the much weaker protection that the Minister is inviting the Committee to add to the Bill in his amendments. The Government’s amendments, although a welcome improvement on the original Bill, are insufficient. They simply require the Minister to consider defined matters before exercising powers. They do not—as they should—prevent the Minister making an order if and to the extent that it would interfere with the independence of the judiciary, or concern functions which require to be exercised independently of Ministers as they involve giving impartial advice or the scrutiny of Ministers’ actions. For example, government Amendment 108, which we are considering in this group, will require the Minister to consider only the extent to which the functions affected by the order need to be exercised independently of Ministers. If the functions do indeed relate to such matters, primary legislation should be required to ensure proper parliamentary scrutiny. Amendment 109, in the name of the noble Lord, Lord Lester of Herne Hill, would remove from Clause 8(2) “the Minister considers that” in relation to necessary protections.

It should not be simply a matter of the Minister forming an opinion on these matters; the Bill must provide that he or she cannot make an order if it would remove necessary protections, such as interfering with the independence of the judiciary. That would ensure—

[Lord Phillips of Sudbury]

I am grateful to the noble Lord for giving way. I am entirely sympathetic to what he and my noble friend Lord Lester are saying but I hope that he can help me and, I think, the House by answering the following question. I think he said that the provisions in paragraphs (a), (b) and (c) in the proposed new subsection (1) in Amendment 175 are implied by law and therefore do not need to be expressed in the statute. My noble friend Lord Lester wonders about proportionality, but by inserting existing powers in this Bill, are we in danger of shackling future legislation where those provisions are not inserted in the relevant Bill, and perhaps therefore getting into an argument that, as they are not there, they are not considered part of the Bill? I hope that I have expressed myself clearly.

[Lord Pannick]

I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional—it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.

I was dealing with the Minister’s amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,

“must uphold the continued independence of the judiciary”.

It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.

As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders—a matter to which I am sure that we will return later in Committee—it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.

I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.

--- Later in debate ---

[Baroness O'Loan]

My Lords, I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, although I speak not for the committee but in a personal capacity.

There is no doubt that it is sensible to review the activities of public bodies—the House is agreed on that—but there are already processes within most pieces of legislation to provide for that. Quinquennial and other reviews, which are a factor of the corporate life of most public bodies, provide regular opportunities for consideration of all the issues such as functions, powers and budgets that are referred to in the Bill. The use of such reviews could provide a starting point from which there could be a coherent review of individual bodies that might, or might not, lead to the need for primary legislation.

Given the importance—indeed, the essential nature—of the work of some of the bodies included in the Bill that the noble and learned Lord, Lord Woolf, and other noble Peers have highlighted, I wish to address whether the Bill includes adequate provision to ensure proper parliamentary control. The problem of course, as noble Lords have all agreed, is that the Bill itself is fundamentally flawed. It is the prerogative of Parliament to make laws, and that prerogative has been exercised on numerous occasions to enable the creation of many of the bodies that are referred to in the Bill, although others were created by royal charter. On each occasion, the passing of the legislation was designed to address a lacuna in current provision and, in many cases, to provide protection in accordance with such fundamentals as the principles of natural justice and human rights. The noble Lord, Lord Ramsbotham, has already referred to the peculiar nature of the impact assessment that has been produced for the Bill.

The Bill seeks to delegate powers to Ministers to abolish, merge or modify the bodies listed in the schedules to the Bill. Noble Lords have already pointed to the significance of the individual statutory duty on many of those bodies. The Constitution Committee has declared that, in the cases that it examined, the question was whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards. The committee stated:

“In our view, the Public Bodies Bill … fails both tests”.

As the noble Baroness, Lady Andrews, says, the Delegated Powers and Regulatory Reform Committee, which is representative of all parties, unanimously agreed that,

“the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.

There has been no change to the essential nature of Clauses 1 to 5 and Clause 11 in the amendments presented by the noble Lord, Lord Taylor. As the noble Lords, Lord Pannick and Lord Lester, have said, when there is a delegation of a legislative power, it must be accompanied by adequate powers of parliamentary control and scrutiny. Where delegation itself is inappropriate and unconstitutional to the extent that the delegation proposed in this Bill has been declared to be, there can be no adequate powers of parliamentary control and scrutiny to redress the mischief clearly contained in the Bill.

The Government have argued that there are time pressures which mean that the legislation must be presented in this form rather than through primary legislation. I suggest—and, indeed, submit—that the effect of this legislation, if passed, would be to lead to very extensive and expensive litigation, some of which would probably end up in the highest courts, both here and in Europe. Even if this Bill were passed, it would become necessary to engage in a long and exhaustive process of consultation for each body. While in some cases the outcome might be simple, in others it clearly would not be the case. Huge concern has been articulated in the public domain.

This Bill, which places in peril the ongoing existence and functions of fundamentally important bodies such as the Office of the Director of Public Prosecutions, the Equality and Human Rights Commission, the Criminal Cases Review Commission, the Independent Police Complaints Commission and the Chief Coroner's Office, cannot be subjected to sufficient parliamentary control by virtue of the provisions for control of the delegated legislative powers tabled by the noble Lord, Lord Taylor. I support the noble Baroness, Lady Andrews, in this respect. The impact of this legislation and the extent to which attempts have been made in the House to control the exercise of legislative powers do not address the issue.

[Lord Phillips of Sudbury]

Did the committee of which the noble Baroness is a member conclude that the powers in this Bill are unprecedented in terms of delegation?

[Baroness O'Loan]

I would not wish to speak of the committee without referring back to the report, but we did conclude that the delegation of these powers was inappropriate. We also concluded that, unless there were changes to the legislation, Clause 11 and Schedule 7 should be removed from the Bill.