Lord Taylor of Holbeach
Main Page: Lord Taylor of Holbeach (Conservative - Life peer)Public Bodies Bill [HL]
Lord Taylor of Holbeach Excerpts
Lord Hunt of Kings Heath
My Lords, the noble Lord, Lord Greaves, is right to remind us of our previous debates on sustainability and climate change. I recall the days when the noble Lord, Lord Taylor, was standing here and urging the Government to do better. He now has an opportunity to show that he is consistent in taking this message into government.
The noble Lord, Lord Greaves, has pinpointed a potential weakness in the construct of the Bill. Noble Lords will know that the Bill allows a Minister by order under Clause 1 to transfer a function that is being abolished to an eligible person. The definition of eligible person includes in Clause 1(3)(a) to (e) companies limited by guarantee, community interest companies or a body of trustees or other unincorporated body of persons. Subsequent clauses extend the ability of Ministers to transfer functions of bodies listed in Schedules 2 to 7.
It would be helpful to know the criteria under which functions of public bodies might be transferred—in particular, to companies or unincorporated bodies of people. So little information is available. The impact assessment is distinguished by its inability to give any figures whatsoever for the financing consequences of the Bill. In particular, the Bill and the Explanatory Notes are silent about how desirable government policies will be transferred when those functions are transferred to companies or to unincorporated bodies of people. Sustainable development is a very good illustration of the point. We are told that the current Government are taking forward desirable policies on sustainability. Those policies relate not just to central Government but to local government and to other public bodies. Many of the organisations listed in Schedules 1 to 7 would be expected to enact the general principles of government policy on sustainability.
If those functions are now to be transferred outside the public domain into companies or into unincorporated groups of individuals, the question arises: how do we ensure that sustainability issues will be carried forward? How will that be monitored, or are the Government saying that, once a function has been transferred outwith the public sector, they are washing their hands of it and there is no guarantee that sustainability issues will be carried forward? That is an important debate.
Lord Taylor of Holbeach
I am very grateful to my noble friend Lord Greaves for bringing forward this amendment. As the noble Lord, Lord Hunt of Kings Heath, made clear, I am well rehearsed on the arguments for sustainability and I would like to think that the Government too share the conviction that sustainability lies at the core of good governance within government.
This amendment seeks to add a further requirement that when functions are transferred from one body to another, the duty to promote sustainable development transfers along with the function, whether or not the duty is set out in statute. I am happy to confirm to my noble friend Lord Greaves that the Government absolutely share his desire to make sustainable development a key part of public life and a consideration that runs through everything we do.
Lord Foulkes of Cumnock
If it runs through everything that the coalition Government are doing, how does the noble Lord reconcile with that the selling off of parts of national parks? We are going to come to it under Amendment 74 from the noble Lord, Lord Greaves. Surely that contradicts everything that the Minister has just been saying.
Lord Taylor of Holbeach
I think the noble Lord is anticipating government policy incorrectly. There is no question of us selling off the national parks—the noble Lord must allow me to correct him. We will debate national parks because they feature in the schedules to the Bill. It will give an opportunity for my noble friend Lord Henley—who is the Minister within the department—to explain in full the Government’s proposal in this respect. The statement that the Government are proposing to sell off national parks, or part of the national parks, is incorrect.
Lord Foulkes of Cumnock
I am grateful if that is correct but the Minister may have seen a report on “Countryfile” on BBC television yesterday in which it was absolutely clear that land within national parks is already being sold off. How does he reconcile that with what he has just said, the sustainability argument and the concern that the coalition professes?
Lord Taylor of Holbeach
I think I have answered the question as best as I can. I cannot refer to a television programme which I have not seen, so it would be best if I were allowed to move on by stating the general principle that underlines our approach to this amendment. I consider it to be useful because it does indeed give us the opportunity to debate the issue of sustainability within the context of this Bill. No doubt it will arise when we come to further issues and parts of the schedules.
Where we differ from the amendment is how we go about achieving this important objective. We believe this amendment would go further and potentially add unnecessary bureaucratic hoops through which some public bodies will have to jump. It is a general and not a specific requirement to those bodies which already have a sustainability requirement. We do not want public bodies to get distracted by having constantly to prove to us that they are delivering sustainable development. We expect it of them. We do not necessarily expect them to be saying that they are doing it all the time. We want them to get on with delivering their core functions in a sustainable way.
The noble Lord, Lord Hunt, asked specifically about when private companies are involved in delivering a service that is currently undertaken by a public body. It is up to the relevant Minister in charge to determine how much they will be held to account, for example by attaching conditions to the contract or funding agreement. It is then for that Minister to account to Parliament and the public for such decisions. This reform programme is about making public bodies more accountable and more efficient.
Lord Hunt of Kings Heath
Does the noble Lord agree that one of the problems with this Bill is that potentially all the functions listed in Schedules 1 to 7 could actually be transferred to a company or a body of trustees or other incorporated body of persons? This is our problem with debating this Bill. The powers that it gives to Ministers are so draconian that all of these functions could find themselves in the private sector in one way or another.
The Minister is saying that we should not worry because it will be up to each Minister to decide whether in any contractual situation they may or may not put something in about sustainability. But does he accept that our problem is that that gives far too much control to Ministers and that parliamentary oversight is very limited?
Lord Taylor of Holbeach
On the contrary: Ministers are accountable to Parliament. If Ministers do not perform how Parliament expects, it is up to Parliament to make that clear. I have no difficulty with this. It is about making Ministers accountable for the conduct of the public sector. We want to mainstream sustainable development so that it is not a bolt-on option, but integral to everything that public bodies do. But we are committed to doing it on a non-statutory basis. For that reason, I ask my noble friend to withdraw his amendment.
Lord Maclennan of Rogart
The Minister gave the impression that it might involve new bodies in a continuing dialogue with Ministers about sustainable development. But he will have observed that Amendment 103 makes it clear that the transfer of public functions will go to bodies and,
“be subject to the requirement to promote sustainable development”,
only where it is appropriate. That would seem to allow the avoidance of the kind of tiresome debate that he has adumbrated in the early part of his remarks. This would be just a safeguard, a safety net. From that point of view, it could be a helpful addition to the Bill.
Lord Taylor of Holbeach
My Lords, ultimately, there is no greater safeguard than the will of Parliament, as expressed through the accountability of Ministers at the Dispatch Box, on all issues. I understand exactly what noble Lords are saying from all sides of the House, but for a Government committed to building sustainability into all their activities, there is no need to make it explicit. It is implicit in all that this Government are doing.
Lord Greaves
My Lords, I am grateful for some of the assurances that the Minister has given. But the debate which has taken place on this amendment—I thank everyone who has taken part—comes to the core of a major flaw in the Bill, as the noble Lord, Lord Hunt, suggested. Sustainable development is just one example of the safeguards written in countless reams of legislation relating to the bodies listed in the schedules to this Bill.
The Minister said that I am trying to make one further requirement: I am tempted to say that I am trying to make a requirement. As the Bill is set out, there are few clear legislative requirements for when functions are transferred from existing bodies to other bodies, whether they are existing bodies being closed down or they are just being run down and having some of their functions transferred.
There was a slight diversion in the discussion about national parks. Indeed, national parks are one of the important areas to be included in our discussions about the particular bodies affected by this Bill. I do not want to pre-empt that debate, except to say that it is very good that the Defra Minister, my noble friend Lord Henley, will take part in that debate. Finding out exactly what the Government intend for national parks will be a crucial part of the scrutiny of this Bill. I thank the Government and my noble friend Lord Henley for that. No doubt my noble friend Lord Taylor is rather pleased that the noble Lord, Lord Henley, will be taking part in it. There is no doubt that national parks authorities are in the process of selling off or leasing out property for other people to manage. I raise the issue of the Losehill educational centre in the Peak District near Castleton. The national parks authority is considering proposals by people who are willing to buy it and take it over. So there is a certain amount of selling-off going on as a result of reduced budgets and there is a great deal of concern and alarm over Losehill, but that is a diversion from this debate.
The Minister said, “It is about making public bodies more accountable and more efficient”. I am sorry the previous group of amendments was not moved because accountability is crucial here. If functions are being moved to the private sector in some cases—
Lord Taylor of Holbeach
My Lords, I thank the noble Baroness, Lady Henig, for moving her amendment, which also stands in the name of the noble Lord, Lord Whitty. It and the amendments grouped with it raise interesting aspects of the Bill and I am grateful for the debate that has taken place. They concern the definition of an eligible person in Clause 1, and the ability of Ministers to transfer functions to persons so defined. Perhaps I can best help by saying that when we come to the debates about the different bodies, I will debate in some detail their functions and where they are going, as well as the nature of the changes that will be involved. I am sure that we will have every opportunity to do this.
Amendment 7A would remove Clause 1(2) and replace it with a new subsection that allowed for the transfer of functions to a Minister in the UK Government or the devolved Administrations, or to an eligible person. Amendment 9 would remove subsection (3)(a), thereby removing Ministers from the list of eligible persons under subsection (3). However, Ministers would still be covered by the proposed amended definition in subsection 3(b) of,
“any other person exercising public functions”.
So, taken together, these amendments would have no real substantive effect on the Bill.
Amendment 11 would remove unincorporated bodies, other than bodies of trustees, from the list of eligible persons under subsection (3). This amendment would prevent the transfer of functions to a variety of organisations, such as unincorporated partnerships. Perhaps I may illustrate this in a way that might particularly interest the noble Lord, Lord Liddle. I refer to the transfer of the regional development agencies to the local enterprise partnership structure, and the way in which that might function. The impact of Amendment 7A would be far wider because it would remove the option for Ministers to transfer any public function to an unincorporated body regardless of the nature and scope of the policy intent. I do not believe that this is a desirable outcome because it would risk ruling out a range of innovative approaches to the delivery of public functions. Our specific intention for the transfer of functions from RDAs is that local enterprise partnerships should be free to adopt the arrangements that suit them best as part of our move towards more locally driven, targeted approaches to growth.
I know that we will have an opportunity to talk about this in detail as a policy when we come to the debates on those bodies, but the amendment would remove the option to form an unincorporated partnership, and would go further by limiting options for public bodies reform in general. So, from that point of view, we resist the amendment because it goes to the heart of some of the changes that we are proposing.
Finally, Amendment 16A seeks to require that when a Minister lays an order under the powers in the Bill, the order names the eligible person to which any transferred functions are to be transferred. We do not believe that it is necessary to include such a provision in the Bill as the orders and the accompanying explanatory material, which has already been the subject of various amendments in Committee, would give this information as a matter of course. Indeed, the provision of such information would be covered by the proposed requirement to provide, as part of the explanatory material, the reasoning for the order.
Lord Rowlands
I apologise for interrupting the Minister. I wonder whether it might help the Committee if the Government could publish very soon some of these orders in draft form. There are precedents for doing such a thing, and at least we would know and understand a bit more the nature of the orders themselves.
Lord Taylor of Holbeach
The noble Lord, Lord Rowlands, has made an interesting suggestion. I think that by the time we have gone through a number of debates on individual bodies, noble Lords may well have quite a substantial idea of the pattern that the orders may well form. I hope to be able to provide noble Lords with the background to a lot of the changes that are anticipated by this legislation.
Perhaps I may respond to some specific points. The noble Lord, Lord Hunt—it might have been the noble Lord, Lord Pannick—asked about audit. Where public bodies are retained as a result of the 2010 review process, and in particular where functions have been transferred to them from other bodies, I assure the Committee that they will continue to be subject to the existing requirements for accounting, reporting, and data confidentiality issues. NDPBs are required to have in place robust governance and accountability arrangements, and both the Cabinet Office and the Treasury provide detailed guidance on the matter. Published annual reports and accounts are the main vehicle by which departments and public bodies regularly inform Parliament and the public about their activities and expenditure.
On freedom of information, I further reassure the House that where bodies already subject to the Freedom of Information Act are merged to form new arm’s-length bodies that are established by and at least partly constituted by appointments made to government, steps will be taken to ensure that they fall within its scope. Where a body’s functions are transferred to another body that is already subject to the Act, they will naturally be subject to that Act.
Lord Hunt of Kings Heath
Will the noble Lord clarify one point? My assumption is that when a function is transferred to a company, a board of trustees or an unincorporated group of people, the FOI requirements will not be so transferred. Am I correct?
Lord Taylor of Holbeach
It is surely up to the Minister to determine to what extent that is transferred. It is certainly not referred to here as being an obligation on any transfer. One would expect any orders that are presented to be covered by the Explanatory Notes accompanying any secondary legislation.
Lord Clark of Windermere
Can I press the Minister a little more on freedom of information? I listened very carefully to what he said, and he promised that any current statutory obligation for freedom of information would be transferred to a private company taking on a body’s duties and functions. At the moment this duty is statutory. Will it continue to be so?
Lord Taylor of Holbeach
If another non-departmental public body takes them on, that will indeed be the case.
On the whole business of freedom of information, it might be opportune for me to say that the Government are committed to extending the scope of the Freedom of Information Act to provide greater transparency, and a number of options for meeting this pledge—including the further extension to additional bodies carrying out public functions—are being considered by the Ministry of Justice. I therefore expect the House to be informed about this during the passage of the Bill.
Lord Greaves
Can I follow that with a question? If a forest was sold to a private landowner and the terms of the sale included a continuation of existing access for the public to the forest and its facilities, would that still be classed as a public function even though it was being carried out by a private landowner?
Lord Taylor of Holbeach
To the extent that the sale would impose conditions on any buyer, I imagine that the terms of such a sale would insist that this right of access was written into the agreement. Indeed, to the extent that the Government are responsible for safeguarding public interest in this respect, it would be for them to ensure that the agreement was held to by any prospective purchaser.
Lord Greaves
I am sorry; I did not make myself terribly clear. If right of access, which perhaps is a public function, and other public goods provided by that forest are to continue, would the private landowner be subject to the freedom of information provisions?
Lord Taylor of Holbeach
I am sorry but I will, if I may, go back to the whole business of public access. Public access is a right; it is enshrined in law. If people have right of access, they have right of access; it cannot be challenged. It would be up to the Government to ensure that any body that was party to a contract that included public access maintained that responsibility.
Baroness Henig
I thank the Minister for his full and considered reply, and all those who have intervened on this amendment. I do not seek to box the Government in; I seek clarity on the serious issue of what will happen to many of these bodies. A lot of parliamentary time and effort went into establishing them and it is really important to spell out the consequences of their abolition, which clearly will differ depending on the category of abolition we are talking about. We are talking not only about abolition; clearly we are talking about abolition and something else. Questions from noble Lords have pointed up their very sincere and strong anxieties as well as the important issues at stake. More of these issues will emerge as we go through this Bill.
We will be able to debate them one by one, but I sought in this amendment to get them into some sort of category so we can see similarities and debate them as classes.
Lord Taylor of Holbeach
I utterly understand the purpose of the noble Baroness’s amendment and the challenge it presents to the Government to give her answers. This has been a very general discussion on the whole reform programme and a number of matters have been raised. I hope it will be of help if I deal on reflection with questions to which I have been unable to supply full answers in a letter that I can leave with the Library of the House, as well as addressing it to her, of course, and to the noble Lord, Lord Whitty, so that people can be properly informed on all the aspects that have been raised in what has been a very valuable debate.
Baroness Henig
I am most grateful to the noble Lord for taking seriously the spirit of the amendments. As I said before, we are trying to get at this issue of different categories. I am grateful for his response. I said at the outset that these were probing amendments, and I therefore beg leave to withdraw the amendment.
Lord Taylor of Holbeach
I thank the noble Lord, Lord Liddle, for moving this amendment, because it has led to a really interesting debate, and it gives the Government an opportunity to explore and explain further the details of the policy initiative which is represented by the abolition of RDAs and their replacement by local enterprise partnerships.
I start from the position of being a provincial. I am a fen-man. I come from an area that is rather overlooked by almost everybody. I live within five miles of the eastern region, but I happen to be in the east Midlands; it is an example of where regionalism tends to draw quite arbitrary lines. Sometimes those lines can be much harsher than when a lot of smaller bodies integrate within a jigsaw of interests. The noble Baroness, Lady Armstrong of Hill Top, and the noble Lord, Lord Beecham, talked about the north-east. It is not an area that I know well but I know it well enough to know that it is not a monolithic area; indeed, it is very different and the interests of Tyneside are different from those of Teesside, Wearside, the Durham coal-field and all those different integrated parts. It has been a problem and a challenge to Government to develop a policy that is going to provide proper, sustained economic growth in the regions of the country. The noble Baroness referred to initiatives going back 20 years or so; I can remember—I am young enough, or old enough, to remember—Harold Macmillan, and Quintin Hailsham with his flat hat on. I will not talk about recently departed individuals in the north-east, but it shows that it is a long-standing issue.
The great advantage of this debate is that it gives me, as my noble friends Lord Eccles and Lord King of Bridgwater have said, an opportunity to explain the Government’s policy. We could have had an afternoon’s debate on this sole subject, could we not? Probably we will. At least I can give an outline of the background, and I hope that will inform our debate yet to come.
I would like to set out the Government’s rationale for abolishing RDAs and encouraging the establishment of local enterprise partnerships. The Government’s economic ambition is to create a fairer and more balanced economy. We wish to see business opportunities in a broad range of sectors balanced across the country and between businesses. Our local growth White Paper, which was published in October, sets out how we will put businesses and local communities in charge of their own futures, rather than having to rely on centrally imposed RDAs. We are encouraging businesses, local authorities—noble Lords questioned where local authorities fitted into this pattern—and their partners to develop local enterprise partnerships, based on real economic areas such as Greater Manchester. My noble friend Lord Greaves mentioned the slight unease he sometimes had in the north-west at the dominance of the big conurbations of Manchester and Merseyside, for example. Rather than these artificial, created regions—
Baroness Armstrong of Hill Top
My Lords, I hesitate to intervene; however, one of the points I am simply trying to make is that the architecture in the north-east was not imposed from the centre. It was something that came up within the region at the time, and had enormous support and continues to have that support.
Lord Taylor of Holbeach
The Government are hoping that their proposals for local enterprise partnerships will be equally supported. Indeed, I hope through debate to be able to show the opportunities that exist; the thrust of the policy is exactly what I am sure the noble Baroness would seek to achieve also.
New partnerships are based on where people actually live and work. Businesses and civic leaders will work together to drive sustainable economic growth and create the conditions for private sector job growth in their communities; that is exactly the scenario that I hope the noble Baroness would agree to. The partnerships will be developed from the bottom up, rather than the top down.
Baroness Armstrong of Hill Top
My Lords, I find this argument really quite strange. The LEPs are being dictated. That is the only thing that we are being offered, even though the Secretary of State said in one of his first statements on this, when he was newly appointed, that he saw the rationale for the north-east to retain a RDA. Indeed at the beginning of June, after the election, he appointed the new chair and it was only two or three weeks later that he then decided, no, he was going to impose a different structure. What the Government are saying may be true for the rest of the country—it is for others to argue that—but it really is not true for the north-east. I am trying to get the Minister to understand that very different positions come from the north-east, and that somehow, if the Government are looking for bottom-up proposals, they are going to have to accept that and go back to the drawing-board on the north-east.
Lord Taylor of Holbeach
I do not believe that that is the case, and having listened to my noble friend Lord Eccles talk about his experience in the north-east, I do not think that the Government have got this wrong. The north-east will discover that local enterprise partnerships will provide a vehicle that links with existing local councils, local communities and local businesses in a way that the RDAs never achieved. They will be a much more powerful driver for economic growth. I must argue that because that is the position that the Government take.
Lord Maclennan of Rogart
Can the Minister say that a local authority is an eligible person under the provisions of Clause 1?
Lord Taylor of Holbeach
The arrangements at the moment for local enterprise partnerships require the complementary co-operation of local businesses as well as local authorities. In other words, we are looking slightly beyond just local authorities, although local authorities will be channels for government funding where it is considered to be appropriate. Local enterprise partnership structure is a combination of local authorities and the business community.
I have sometimes seen criticism that the Government have not been clear enough about how they want these partnerships to be organised and what they want them to deliver. This is quite deliberate because we have set out a number of key criteria. The partnerships need to have support from businesses and local authorities, they need to be based on real economic geography, and they need to offer real added value and ambition. Beyond this, it is for the partnership to decide how it will be structured and the policy areas it will cover. We work on the clear basis that local people know best what their needs are.
We acknowledge that the RDAs have done good work during their existence. I am full of praise for the high-quality people who have worked for RDAs and have supported them. Noble Lords will no doubt point to examples when we discuss each RDA at a later stage. However, since they were created in 1999, the RDAs have had a combined budget of more than £21 billion. Despite this, they have not succeeded in their primary aim of narrowing the gap in economic performance between the three regions in the greater south-east and those in the rest of England. It is necessary to take a new approach if we are to achieve growth throughout the country. The Local Growth White Paper also announced a regional growth fund worth £1.4 billion over three years. Businesses and communities, including those working through local enterprise partnerships, will be able to bid for money from this fund. Its aim is to support projects and programmes that have the potential to stimulate growth and, in particular, to help those areas that are currently dependent on the public sector to achieve private sector-led growth.
Lord Beecham
Does the Minister acknowledge that the north-east alone had £340 million in its annual budget? What, therefore, is the total reduction in the £1.4 billion? It must be very significant.
Lord Taylor of Holbeach
I am not in a position to comment in detail on the noble Lord’s figures. That is a matter for discussions elsewhere. All I know is that the focus of the regional growth fund will be, as I just said, on those areas where communities have become particularly dependent on the public sector for employment and where private sector-led growth offers an opportunity for future development in those parts of the country. The fund will support the best proposals that come forward, wherever they come from and whether they come from private enterprise or the local enterprise partnerships. It will complement the other measures that the Government are taking to support growth through investment, education and skills, improvements in competition and research and innovation.
I turn now to the noble Lord’s specific amendments. While Amendment 12 is designed to achieve the practical and sensible aim of allowing transfers of functions from bodies appearing in Schedule 1 to the Bill to local enterprise partnerships, we do not believe it is necessary. As I have said, in inviting businesses, local authorities and their partners to establish LEPs, Ministers chose to allow them the maximum level of flexibility. This extends to the type of partnership arrangements that they should put in place, which will be a matter for the partners themselves. Because of this, the Government do not intend to give local enterprise partnerships a statutory definition in the localism Bill or elsewhere. In other words, there will be no uniform model for local enterprise partnerships; they will be unique to the location in which they operate.
With this in mind, the Bill is deliberately drafted to allow transfer of functions and assets to local enterprise partnerships, whatever legal form the partners choose to give them. Clause 1(3) defines an “eligible person” in a very wide way, including companies limited by guarantee and community interest companies. We expect many local enterprise partnerships will take these forms. In addition, in the case of transfers from the RDAs, Note 2 to Schedule 1 allows transfers to any body corporate. Therefore, the Bill as currently drafted already allows transfers to local economic partnerships in whatever form the partners choose to give them. There have been questions about what will happen to RDA assets. This was all set out in the Local Growth White Paper. RDA assets and liabilities will be disposed of or transferred in line with a clear set of shared principles, which include aiming for the best possible outcome for the region, consistent with achieving value for the public purse.
Baroness Scotland of Asthal
My Lords, it is with mixed feelings that I rise to speak about the Administrative Justice and Tribunals Council and add my voice to all of those who are urging the Minister to think again in relation to this council. What has been said by my noble friend Lord Borrie, what has been said so eloquently by the noble Lord, Lord Newton, and by the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, supported by the noble Lord, Lord Pannick, is not only correct but I hope the Minister will take comfort from the fact that he could not have been shot at by more accurate huntsmen. If he is feeling that he has been holed beneath the water, he should draw comfort from the fact that the whole House has done it and not just those noble Lords who sit behind him.
I have pleasure in rising because I am pleased to add my voice to those others. There is also, however, concern and a little sadness that I am driven to speak at all, prompted by the Government’s as yet unsubstantiated case for abolishing the council. It is sad to see the council head the list for abolition under Schedule 1.
This House will remember the debate in 2007. The noble and learned Lord, Lord Lloyd, and others are right to say there was unanimity in this House about the necessity to keep the council, the sagacity of Sir Andrew Leggatt’s report and the rightness of supporting it. The Minister may recall that the late and much missed Lord Kingsland said in relation to the then Government’s proposal that they had got it absolutely right by following Sir Andrew’s arguments. He was talking about constitutionality. The noble and learned Lord, Lord Lloyd, was therefore right to quote what was said by Sir Andrew Leggatt and to endorse it.
I was also concerned, when looking at the Chairman’s foreword for the most recent annual report of the Administrative Justice and Tribunals Council, to read:
“However, as the text of this foreword was being finalised we learned that the AJTC is to be included among the MoJ sponsored Arms Length Bodies to be abolished through the Public Bodies Reform Bill, due to be introduced in Parliament in the autumn. Whilst recognising the absolute prerogative of Ministers and Parliament to take such a decision, the outcome is disappointing and it is unfortunate that we were not included in the discussions leading to this decision. However we look forward to contributing to the debate”.
The foreword points to the fact that this council in its various forms has done sterling work on behalf of individuals for the past 50 years and has throughout been applauded for its achievements. My concern is aggravated therefore by the quality of the process undertaken by the Government in making this choice. The annual report sets out all the reasons why the council should be retained. There are many around this House who feel that the inclusion of the council on the Schedule 1 list is extraordinary.
That feeling of unhappiness is exacerbated when one considers the millions of people who may be affected by the acts and omissions undertaken by various administrative bodies which have their roles scrutinised by tribunals with the council supporting them.
I, too, agree with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, and echoed by the noble and learned Lord, Lord Howe, that if we are to go through the list organisation by organisation, entity by entity, it will take some considerable time if each body is to be given the scrutiny it deserves.
Your Lordships will know that if the council is to remain on the list, a great deal of unhappiness—not just in this House but for individuals who are adversely affected by that decision—will be occasioned. I should conclude with a view comments from Sir Andrew Leggatt himself, when talking about the Administrative Justice and Tribunals Council. He said:
“There should be one guiding principle. In origin, many tribunal functions started within the administrative process. Tribunals were established because it was clear that the citizen needed an independent means of challenging possible mistakes and illegalities which was faster, simpler and cheaper than recourse to the courts. Tribunals are an alternative to court, not administrative, processes. They will keep the confidence of users only in so far as they are seen to demonstrate similar qualities of independence and impartiality to the courts”.
His words go to the heart of why judicial and quasi-judicial bodies need additional protection, and is why I and many others support the amendment. Independence has to be established and has to be seen, felt, and tasted. If the council is removed, I add a question to those posed by the noble Lord, Lord Newton: how is that to be guaranteed if everything is invested in the department, which may be in need of challenge, assistance and advice?
I urge the Minister to say this evening that the council's name will be struck from the schedule. Then the House would not be put through the burden to vote and the noble Lord may have greater time to consider the other bodies which may or may not merit inclusion.
Lord Taylor of Holbeach
I thank the noble and learned Baroness for her contribution, and the noble Lord, Lord Borrie, for presenting the amendment. As all noble Lords have said, this is the first body to be debated—not because it is the most important but because of the way in which we have ordered our alphabet. I might have chosen a different one to start with, I might add, but I think that the whole House will understand that. I am grateful for the widespread and learned comments from various noble Lords around the House, including my noble friend Lord Newton and my noble and learned friend Lord Howe, whose experience I respect.
Perhaps I can put this decision into context and explain to the House the Government's thinking. I should start by saying that this body is not itself a tribunal. It is a council which has a role in advising on how tribunals might best function, but it is not a tribunal. That the amendment would remove the Administrative Justice and Tribunal's Council from the schedule is in many ways a tribute to the development of the Tribunal Service under the previous Government. As noble Lords will know, there has been a considerable expansion of the Tribunal Service, and it is to that Tribunal Service that the public has access. I quite agree that tribunals are a much better way of resolving matters of injustice in the vast majority of cases involving individual citizens.
The Administrative Justice and Tribunals Council is an advisory body. It was set up under the Tribunals, Courts and Enforcement Act 2007—as several noble Lords, including the noble Lord, Lord Borrie, mentioned—to advise the Lord Chancellor, the Ministers of the devolved Administrations in Scotland and Wales and the Senior President of Tribunals on administrative justice. That is its role. To be clear, the AJTC is not a judicial body. Its abolition would not have a direct impact on judicial independence or judicial decision-making.
I assure my noble friend Lord Newton that Ministers have been engaging with Ministers in the devolved Administrations and that assurances have been given that the Scottish and Welsh committees of the council can continue and will receive funding until the autumn of next year. The devolved Administrations will thereafter make further arrangements as necessary for their jurisdictions after the abolition of the council.
Lord Newton of Braintree
Does that mean that we will have the ultimate absurdity of the Government abolishing the Administrative Justice and Tribunals Council for England while the Scottish and Welsh Administrations decide that they need a similar body in Scotland and Wales? It gets dafter by the minute.
Lord Taylor of Holbeach
That is entirely up to the devolved authorities to determine. I make no apologies; there is logic behind that. The tribunal system in the devolved authorities has not undergone the same development as has been undergone in England. The specific development in England occurred during the previous Government, and that situation could continue, although I think that it is unlikely.
Lord Sewel
The noble Lord mentioned the devolved authorities—the noble Lord, Lord Newton, has already taken him up on one point—but he indicated what is likely to happen in Scotland and Wales. That can happen only if the devolved authorities themselves agree to the legislation. Is a legislative consent order already in place?
Lord Taylor of Holbeach
It will be necessary to get a consent motion from both devolved authorities. I think that I have said that before when we have been discussing this matter.
Lord Sewel
That is helpful, but what happens if the devolved authorities do not proceed with the legislative consent order?
Lord Taylor of Holbeach
We have no reason to suppose that that will happen. We are talking to the devolved authorities about this whole business. Indeed, the Scottish Parliament has already passed its own public bodies review, which has been running for two years now, so it is not a strange thing for people involved in Scottish politics to come to terms with a Bill such as this.
To return to my remarks, one of the council's functions is to keep under review the constitution and working of tribunals. That function dates back to the AJTC’s predecessor body, the Council of Tribunals, which, as noble Lords have said, was established by the Tribunals and Inquiries Act 1958. That Act was the result of Sir Oliver Franks’s report on administrative tribunals and inquiries, which was published in 1957. The tribunals landscape has changed immensely since the late 1950s, and much of that change has been relatively recent. I hope that I have paid adequate tribute to the previous Government’s work in that regard. Sir Andrew Leggatt’s 2001 review, Tribunals for Users, calls for a more unified tribunal structure supported by an independent Tribunal Service. April 2006 saw the beginning of that. The Tribunal Service was set up to administer the tribunals within the Department for Constitutional Affairs. Then came the Tribunals, Courts and Enforcement Act, which received Royal Assent in 2007. The main effects of this legislation included the creation of a new, simplified statutory framework for tribunals to provide coherence and enable future reform and the unification of the tribunals’ judiciary under the Senior President of Tribunals.
It was envisaged that the AJTC, set up under the 2007 Act, would advise on the development of the Tribunals Service and be able to offer proposals for change. This the AJTC did, first under the very capable leadership of my noble friend Lord Newton and more recently under the chairmanship of Richard Thomas. It has played an important role in helping in the creation of the Tribunals Service and deserves proper recognition for this.
However, we have now moved from a structure in which tribunals were funded by the departments whose decisions they reviewed, which left appellants feeling they were always at an away match. We now have a unified Tribunals Service which is well established, supporting the majority of central government tribunals, and run by the Ministry of Justice. So I believe that the AJTC has served its purpose in helping to set up the unified service.
The review of public bodies that the Government have undertaken has resulted in agreement that remaining central government tribunals outside the Tribunals Service will either transfer in or will be considered for transfer in. In addition, the development of tribunals policy—
Lord Lloyd of Berwick
On that last point, I find it very difficult—perhaps the noble Lord could deal with this—to reconcile that argument with the fact that the tribunal is contained in the same act. There was no suggestion that the council was to come to an end when the Tribunals Service took effect—not in the slightest.
Lord Taylor of Holbeach
At that time that was certainly the case. I accept that. The 2007 Act did not do away with the council. The noble and learned Lord, with a slip of the tongue, said “tribunal”. It is not a tribunal; it is an advisory council. It is very important that noble Lords bear that in mind.
In addition, the development of tribunal policy and the development of governance arrangements for the Tribunals Service mean the AJTC’s review function is no longer needed. I concur with the noble Lord, Lord Borrie, that the input of the judiciary and academics is crucial to the improvement of services and policy development. I do not envisage that their involvement will cease with the abolition of the council. Officials will continue to seek their views as part of policy development in relation to tribunals and administrative justice reform.
The AJTC also has a role in keeping statutory inquiries under review. For any noble Lords present who are not familiar with the AJTC’s work, I should perhaps explain that this role does not include keeping under review public inquiries such as Dunblane or Shipman. The AJTC has focused mainly on inquiries relating to land use.
The Planning Inspectorate, which is an executive agency of the Department for Communities and Local Government, is responsible for the determination of planning and enforcement appeals and routinely holds statutory inquiries into a range of land use developments. The Planning Inspectorate has now established a robust quality assurance unit, operating across all functions of the inspectorate to ensure appropriate standards and procedures are upheld. The quality assurance unit can, if necessary, recommend changes in the inspectorate’s audit committee or the inspectorate’s main board. The inclusion of non-executive directors on the inspectorate’s board ensures external scrutiny. Therefore, the AJTC’s review function in relation to statutory inquiries is no longer required.
Of course, the AJTC was given broader statutory functions under the Tribunals, Courts and Enforcement Act 2007 than its predecessor body, the Council on Tribunals. These are to keep the administrative justice system under review; to consider ways to make the system accessible, fair and efficient; to advise on the development of the administrative justice system; and to put forward proposals for change and make proposals for research.
If the noble Lord, Lord Newton, suggests that one of the functions of the AJTC was to act as a curb on executive power, I have to say that this was not a function of the AJTC and perhaps I can clarify that by going back to the 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals. It proposed a widened remit for an Administrative Justice and Tribunals Council but it also envisaged that the then Department for Constitutional Affairs would,
“take the lead on co-ordinating redress policy across Government. Its task will be to facilitate development of more integrated and consistent dispute resolution systems for the benefit of the public. It will take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them (courts, tribunals, ombudsmen, independent complaints handlers, etc). It will propose ways of dealing with gaps, weaknesses and overlaps while drawing on the unique qualities and key strengths of the distinct elements of the current arrangements”.
That was the last Government’s proposal under the 2004 White Paper for the role of the Department for Constitutional Affairs. In recent times, priority has been given to reforms to the tribunals system but, as the Ministry of Justice has taken on what is properly its responsibility and a wider administrative justice capability is being developed, it will take the lead—
Lord Warner
I am sorry to interrupt the Minister in full flow. I have listened very carefully to this. He has made much of the fact that the Ministry of Justice will take on a series of roles and functions that noble Lords seem to be mistaken in thinking that the advisory council would be performing. Can he give us some idea of how many people in the new, streamlined Ministry of Justice will be available to actually give this kind of support to the tribunals?
Lord Taylor of Holbeach
No, I cannot give that answer. The noble Lord correctly referred to the advisory council. We are talking about executive responsibility envisaged by the previous Government, vested in the Department for Constitutional Affairs and currently recognised by this Government as being vested in the Ministry of Justice. As I was saying, it will take the lead on the co-ordination redress of policy across government, facilitating development of more integrated and consistent dispute resolution systems. It will also take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them. By enhancing the policy function, the Ministry of Justice will be well placed to look across the entire administrative justice system.
The noble Lord, Lord Newton, is absolutely correct: the Cabinet Office is responsible for ombudsmen policy, including the Parliamentary Ombudsman. Each department is responsible for ombudsmen within each policy area on which it leads. However, administrative justice includes both tribunals and redress by ombudsmen and therefore the Ministry of Justice will take a systemic view across government, including ombudsman functions, as part of its role leading on administrative justice policy. For example, the Ministry of Justice recognises that administrative justice is an end-to-end process and that getting it right at the start of this process—that is, good-quality original decisions by the public bodies concerned—is vital. Getting it right first time benefits everyone concerned.
Of course, the departments and public bodies making the original decision have the primary responsibility to ensure high-quality decision-making. That said, the Tribunals Service has been actively working with the larger decision-making agencies whose appeals it deals with—for example, the Department for Work and Pensions and the UK Border Agency, and my noble friend Lord Newton referred to the very large number of cases that that can involve—to review end-to-end dispute resolution procedures and feedback arrangements. The Tribunals Service will continue to work with decision-makers to improve getting it right first time and will seek to spread lessons learnt among relevant decision-making bodies to drive up standards.
Lord Newton of Braintree
I am aware that the House wants to get on, but, before my noble friend concludes, perhaps I may make just three points. First, he referred to users. When I was chair, the Tribunals Service asked me, on behalf of the council, to chair the users’ groups for mental health and for war pensions on the grounds that the council could do it better than it could. I should like to know whether the Government know the view of the senior president of tribunals on this proposal. How will the position of a body such as the Down’s Syndrome Association, which has recently written to me—I have its letter here, but I will not read it, in which it raises concerns about the reduction in legal aid, to which the noble Lord, Lord Pannick, referred—be represented by the Ministry of Justice? It is complaining about the effect on tribunals, and the proposals on legal aid have come from another part of the same department under the same Secretary of State. How can that be the case?
There are a lot of other questions. I could say a lot more, but I am deeply depressed by the fact that my noble friend has not felt able to go further in terms of being willing to look at this. The Government should look at this again and should recognise the strength of feeling that is by no means confined to the opposition Benches, as is very clear. I hope that, even now, he will say that further consideration will be given to this, so that those of us who would like to reach a rational, considered, thought-through conclusion can at least have some chance of hope that that might happen.
Lord Taylor of Holbeach
I am sure that the proceedings of this House will be widely studied. I am certain that the Government want to take note of all that is said in the debates on this Bill. But I return to my previous comment to the noble Lord, Lord Borrie, and hope that he will withdraw his amendment.
Lord Borrie
My Lords, in this debate there has been not a single person who has given support in any way to the Minister’s propositions. Not a single person in this debate, which has gone on for an hour and a quarter, has done other than sit on their hands or support the amendment, which I am glad I put forward. It is normal for someone in my position, who is summing up and is to determine whether there should be a vote or not, to give some mention of his supporters. I have been most fortunate because support has come from the experienced noble Lord, Lord Newton, a former chairman of the council, from the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, my noble and learned friend Lady Scotland, and from the noble Lord, Lord Pannick.
The second thing that someone in my position normally does is say what a good debate we have had. But we have not had a good debate because the only propositions on the other side were from the Minister, who I am bound to say, on the same lines as the noble Lord, Lord Newton, was a great disappointment. He stuck closely to the brief, which clearly had been prepared long before this debate began. There is nothing necessarily wrong in doing that in part; but, surely, after all the points that have been made in favour of this amendment from all sides of the House, there could have been some give—some notion that, instead of just saying, “This body has outlived its usefulness; all its work can now be done by civil servants in the Ministry of Justice”, something positive could be given. Nothing was given. My view is that we should go to a vote on this amendment and I appeal to noble Lords from all sides of the House to support the view that this body should be removed from the list of bodies to be abolished in Schedule 1.