Public Bodies Bill [HL]

Lord Roberts of Conwy Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Roberts of Conwy]

My Lords, I found myself on the horns of a dilemma as I read the Bill, and that was before I read the Constitution Committee’s report. Much as I wish for a diminution of the state’s role and approve of the wholesome objectives, spelt out in Clause 8, of,

“increased efficiency, effectiveness and economy in the exercise of public functions”,

and,

“securing appropriate accountability to Ministers”,

the means by which they are to be achieved are not easily justified, even by the noble ends in view. That point has been made by several noble Lords in the course of our debate this evening.

Among the options that the Government considered, according to the impact assessment document referred to by my noble friend Lord Crickhowell was,

“not bringing forward a Bill and making the necessary statutory changes to the bodies in separate pieces of legislation”.

Although the approach represented there was obviously the proper way to proceed, the impact assessment states:

“It was decided that this would make it difficult to deliver the Government’s policy intentions and be an unnecessary burden on parliamentary time. Changes would either have to wait until appropriate departmental Bills were introduced or wait until time could be found for separate Bills”.

Clearly time was of the essence for the Government, rather than parliamentary propriety. Indeed, the Government decided to bring forward a single Bill to enable the changes to be made through the less time-consuming process of secondary legislation—mainly, it seems, in the form of orders subject to affirmative procedure. Certainly, secondary legislation has all the advantages, in terms of speed, that the Government claim for it, but orders cannot be amended in either House, are subject to time-limited debates and it is not our practice, in this House, to vote on them. There are severe parliamentary drawbacks to this procedure.

Nevertheless, it is proposed that public bodies that have, for the most part, been established in the past by well considered statutes be abolished, merged or modified in their internal constitutional or funding arrangements by the speedy processes of secondary legislation. If only some allowance was made for the possibility of primary legislation being required for certain important changes involving lengthy, complex orders and difficult issues, this might have softened the Government’s approach and won some more friends for the Bill. However, it seems to be ruled out. I ask my noble friend on the Front Bench for an assurance when he winds up that I am wrong about this and it is still possible for primary, rather than secondary, legislation to be used in this context. I still commend the thought of an amendment to allow primary legislation and I hope this will find favour with the Minister.

When one looks at individual bodies that one is familiar with, in my case there is the Welsh-language channel, S4C. I appreciate much of what the noble Lord, Lord Elystan-Morgan, said. I remind the House that my noble friend Lord Crickhowell played a prominent part in the establishment of S4C so many years ago. It is quite properly listed in Schedule 4 as a body subject to funding changes. Under the Broadcasting Act 1996, S4C’s annual budget increase is linked to the retail prices index, and that link is to be severed. It has also been announced that S4C is to be part funded from the TV and radio licence fee from 2013. We tend to regard that as the BBC licence fee but that is technically incorrect.

The Welsh channel authority is also included in Schedule 7 as a body that may be shifted to another schedule, possibly relating to a change in its constitution. Again, the essence of that change, and what it is hoped to achieve, has been spelt out by the Secretary of State for Culture, Media and Sport. Of course, at the end of the day such changes as are made will be by secondary legislation, with all its parliamentary limitations, to a body established and developed by primary legislation over some years and after a great deal of discussion. Such extensive discussion may again be necessary, judging by the ferment in Wales at present, but that would be possible only with primary legislation.

It has been suggested by a number of noble friends that some orders might be subject to the super-affirmative resolution procedure, but having read the relevant paragraphs in the Companion to the Standing Orders and the Constitution Committee’s comments, and having seen the dilatory complexities of that procedure, I cannot see a Minister volunteering an order to be subject to it because there is a very clear danger that he would lose control of his legislation. Therefore, it is no wonder to me at any rate that the procedure has not been frequently used.

A wise man once told me that in considering legislation one should always think what the Opposition might do if they inherited the powers sought in the legislation. It occurred to me that, at their worst, some future set of noble Lords on the Front Bench opposite might include your Lordships’ House in Schedule 7 as a possible candidate for modification, if not abolition. However, that is a very extreme scenario which would, I hope, be thwarted by wiser noble heads on the Back Benches.

Nevertheless, the precedent established here of a massive subjection of public bodies, largely established by primary legislation, to possible change by secondary legislation is not a happy one. I hope that some amendments can be passed in Committee on the Floor of the House to tie the possible changes to public bodies even more firmly and exclusively to the excellent objectives set out in Clause 8 and the principles and values that we cherish.