Lord Whitty
Main Page: Lord Whitty (Labour - Life peer)Public Bodies Bill [HL]
Lord Whitty Excerpts
Lord Whitty
My Lords, I am beginning to feel very sorry for the Minister. When I came back to the Chamber I thought that perhaps he would have gone for a sustaining meal or, even better, to consult his business managers and was advising them to accept my noble friend Lord Hunt’s amendment. But he has stuck it out, for which I commend him. However, he must understand that the range of opinions and concerns over different organisations in this House make it impossible to proceed with this Bill in the normal way. The sooner we agree to my noble friend Lord Hunt’s amendment, the better it will be for the coalition Government, as well as for the authority of this House and its ability to scrutinise properly.
At the beginning, the Minister said that this Bill came out of a “coherent, cross-government assessment”. I am afraid that he is wrong on all three counts. There is no assessment, no rationale and no mechanism for establishing value for money. It is not coherent. Alphabetical lists, with some bodies appearing on several lists, is not particularly coherent, let alone the reasons behind them. The process was not really cross-government. It was done department by department in silos. Then they had a head to head in a Star Chamber procedure with the Cabinet Office. The number of quangos in the departments to end up on these lists depended on the enthusiasm of the individual department or the degree to which they were battered by the Cabinet Office. For example, leaving aside the RDAs—the abolition of which I deplore—of the 36 other bodies on the abolition list, no fewer than 14 are Defra organisations and another seven are from the Ministry of Justice. Effectively, two-thirds of the bodies that this allegedly objective process abolishes come from two small departments. That cannot be right. We must have a better process for this because the normal process of the House is not correct for it.
I declare an interest as a member of the board of the Environment Agency, which appears in the list in Schedule 5 and the list in Schedule 7, and also in Clauses 14 and 15 in relation to Wales. More pertinently, I am also the chair of Consumer Focus, which is for abolition—although it is not really abolition according to the officials of our sponsor department, BIS, because abolition is a technical term and our powers will pass elsewhere. It does not feel technical to the staff and those who support it. However, it is an example. I retire from the chair at the end of this year and therefore I will have no pecuniary benefit from it lasting longer than the Government envisage. However, I am concerned that a body that was set up only four years ago and which came into being only two years ago with the merger of the National Consumer Council, which went back to Lord Young of Dartington in the 1970s, and the bodies that were set up to look after energy and post when they were privatised and liberalised, is going to disappear.
Most or some of its powers—it is not clear—will pass to Citizens Advice. As the noble Lord, Lord Beecham, said, Citizens Advice is an effective body but is different from the kind of body that goes in for consumer advocacy at the policy level and engages in depth with the regulators and the companies in, for example, the energy sector. It may be able to deliver that expertise but you will not find Citizens Advice on this list.
Nor will you find some of the bodies which went into the assessment by BIS dealt with in the same way because they are in other departments. There ought to have been a coherent approach across government to both competition and consumer affairs to produce a rationale which was clear to the House. We would probably have ended up with fewer bodies, but certainly with clearer remits for those bodies. My noble friend Lord Borrie reported on what was happening on the competition side of that equation—we probably will end up with one Monopolies Commission—but it is also clear that some of the things taken away from the OFT cannot be dealt with at a local level, either by Citizens Advice or by trading standards.
That is a microcosm of what is wrong with the Bill. Taken sector by sector and organisation by organisation, the reason why particular quangos are in particular boxes is not at all clear. If the Bill goes to a Committee of the Whole House and we go through it line by line, that means we will go through it body by body, organisation by organisation. In the Minister’s own best interests I suggest that that is not a sensible procedure for him. If the Bill goes to a Select Committee, the Select Committee can begin to make sense of it. It could group organisations; it could look at all bodies, on whatever list they are, in the health area; or at all scientific advisory bodies; or at all bodies dealing with consumer affairs, competition or the environment. It could establish a clear pattern and call witnesses, which, as the noble Lord, Lord Greaves, said, a Select Committee has the power to do. We cannot call it pre-legislative scrutiny because we have started the legislation today. However, it would have some of the same benefits. It could provide a clear, coherent principle and suggestions about how we could better deal with parliamentary scrutiny of quangos in the future. A Select Committee procedure can do that; a Committee of the Whole House cannot.
If we were starting again on a matter of such constitutional importance, as the Constitution Committee has pointed out, I would have advocated a Joint Committee of both Houses. To be faced with such a clear Henry VIII Bill is a unique experience, and the wording in the Constitution Committee’s report, as other noble Lords have said, is unprecedented. We need to take that very seriously and we need as a result to take this Bill through a different procedure. Like other noble Lords, I am not opposed to reducing the number of quangos, I am certainly not opposed to finding value for money from them and merging and reconfiguring them. I think there ought to be a process whereby we review them from time to time.
Lord Phillips of Sudbury
I am grateful to the noble Lord for giving way. He made a powerful point about Citizens Advice and the consumer body of which he is chair. Is it not also the case that Citizens Advice is a charity? It is quite outside the control of the state and it is not actually open to any Government to require an independent charity to do this or not to do that.
Lord Whitty
My Lords, this is an added difficulty. I think Citizens Advice was as surprised by the decision as we were, from the other end of the spectrum, as it were. It is possible that you could do this. I am not in principle opposed to the functions that Consumer Focus currently carries out being done in the third sector but I think it is difficult. We have very substantial powers, particularly powers to require information from commercial companies. There are questions as to whether it is appropriate to transfer those powers outside a government body. I have great respect for Citizens Advice and we may find a way of doing it, but we have not got there yet. There are other bits of the jigsaw we need to get in place before we do.
This is, in effect, a Henry VIII Bill. However, when Henry VIII actually proposed the dissolution of the monasteries he asked his mate, Thomas Cromwell, to produce a report on each individual monastic house. He needed to do that in order to convince the barons and the powers that be that it was a sensible policy. Those reports were, on balance, pretty prejudicial and the level of debauchery that these people found certainly would not have been found in Consumer Focus. However, it is sensible for Parliament, before it takes a decision on this, to look at each individual body in detail and the context in which it works and the interrelations with the other bodies concerned in that sector and take a decision, sector by sector, type of body by type of body—not to have a whole list presented to us on which we can have only an incoherent debate using the normal procedures of this House.
Even Henry VIII went further than this. We can at least do as well as Henry VIII did. I am not saying that a Select Committee or a super-affirmative resolution would necessarily have prevented the dissolution of the monasteries, but it would have been worth a try. I think it is incumbent on this House to try to find a way in which we can make sense of this procedure. At the moment we are not there and I plead with the noble Lord to accept the alternative procedure and take us down a more sensible road for dealing with this Bill.
Baroness Deech
My Lords, it has been said that there are good quangos and bad quangos. It is time for some root-and-branch reform and it is the job of the powers contained in the Bill to distinguish between them. The art is to find the right criteria to enable us to reform or remove those quangos that are a hindrance, and preserve those that meet the right criteria, including cost, accountability, representativeness, impartiality and the ability to establish facts that enable good government to go forward.
Why have quangos become so unpopular? There are issues with salaries, people, language, mission creep and politicisation. One of the issues that have affected the standing of some quangos is salaries. Some are very high and it is important that the people who sit on the quangos should be representative of the population they serve and be well regarded for their expertise and impartiality.
John Kay, the economist, has said that there is a modern class of “quangocrats” who glide effortlessly from committee to committee. Some of your Lordships may include me in that category. Reluctant though I am, it has been said in the past few years that if it moves, I am called upon to regulate it. However, successful quangos are those that give real authority to people with specialist skills—judges, medical professionals and so on—where relevant to the committees. As your Lordships will know if you check your pigeonholes, there are far too many glossy brochures produced at great waste, not least of carbon emissions. When such publications emanating from quangos make less sense than they should because they shroud real meaning in a cloud of inappropriate business speak, one knows that there is something amiss. “Drill down”, “delivery”, “KPIs”, “going forward”, “robust”, “transparent” and “stakeholders” are all terms that I try to keep out of my office’s documents.
Others have commented on the constitutional issues arising from the power in the Bill to enable Ministers to set aside legislation without even a duty to consult. I support every word of the criticism made of the operation of the Bill. I am pleased that my noble and right reverend friend Lord Harries and my noble friend Lady Warnock, who have such experience and expertise in this field, have said all that I could say about the need to keep the HFEA; and others have spoken about higher education. It is not right to roll in the Office of the Independent Adjudicator—I was once the adjudicator—that takes care of complaints into the body that funds universities. Noble Lords should try to salvage whatever is good in the Bill. It is marked by indecisiveness and there is everything still to play for.
I will confine myself now to legal regulation and declare an interest as chairman of the Bar Standards Board. It is arguable that the legal profession is overregulated and is paying the price for the way in which solicitors did not handle complaints in the past. The Legal Services Act 2007 drew the barristers’ profession into the maze of regulation that it introduced, although there was little evidence to place the Bar under the same regime as solicitors. As chair of the Bar Standards Board, one of my serious concerns is the possible undermining of the professional standards, service and independence of the profession by the cult of consumerism. Consumerism is a major issue in the decisions about bodies listed in the Bill. It could be argued that the Legal Services Board Consumer Panel, whose existence has been said in newspapers to be under threat, fails to meet the criteria for retention. There is duplication of its work. The Bar Standards Board and the Solicitors Regulation Authority have consumer engagement strategies and panels. Much market research on this has been carried out, special reports have been commissioned on all sorts of areas relating to law, and there is no need for more. Not least, the cost of all this falls on the legal profession, which of course passes it on to its clients. When legal aid is being cut, I hope the Government will bear in mind the need to keep down those costs.
I welcome the proposal to study and merge the consumer organisations into one, and to end the tyranny of consumerism, as it has been called. Over the decades, the word “consumer” has become something of a Trojan horse for the import of the social policies of whatever Government are in power—a way of insisting that a certain line should be followed, sometimes without regard for the wider meaning attributed to the term “consumer” by the legal profession, which goes beyond the normal meaning to encompass duty to the court and the rule of law, and the engagement with judges, government departments, businesses and solicitors. My views accord with those of the noble and learned Lord, Lord Neuberger, Master of the Rolls, who said in a speech three days ago:
“It is of fundamental importance that, particularly when it comes to the professions, above all the legal profession, society does not adopt what might be called a form of unreflective consumer fundamentalism”.
“Consumer” is no longer equivalent to impartial or independent. Far from protecting the profession, it could be seen as a political threat. Even students are called consumers. They certainly are not: they are participators and learners. Education, like legal services, is not a good that is delivered and received passively for a price. Education is an investment, not something that is to be consumed. The provision of legal services is not equivalent to the servicing of a gas boiler.
There is a perception that the Legal Services Board Consumer Panel may fail the test of impartiality and expert evidence. After a freedom of information request, it was revealed that the panel has an unbalanced political composition. Half of its members are declared members of the Labour Party and/or members of unions—the unions being, of course, supporters of the Labour Party. Why does this matter? Because there is a conflict between the duty to represent the consumer and certain vested interests that are not always transparently declared in, for example, the Consumer Panel report on referral fees, which was adopted by the parent body, the Legal Services Board. The Labour Party itself is in receipt of referral fees. Lord Justice Jackson, in his Review of Civil Litigation Costs earlier this year, said that they should be banned in personal injury cases. So did the noble Lord, Lord Young of Graffham, in his report on the claims culture. The Law Society has set its face against the practice. Therefore, it is odd that the LSB Consumer Panel has come out in favour of the retention of referral fees, whereby solicitors and others may buy in work by, for example, paying unions to refer business to them. Given that half of the Consumer Panel is made up of members of the Labour Party, the perception may be there—it is possible to make the criticism—that it could be influenced by the unwillingness of the party to give up a potential source of income from the firm of solicitors that acts on its behalf in personal injury cases.
Lord Whitty
My Lords, I find this an extraordinary attack on the concept of consumerism or consumer representation within legal regulation. Your Lordships may recall that when the Legal Services Act passed this House, there was a barrage of resistance from lawyers of various descriptions on various Benches in this House to a consumer voice being built into it. After much persuasion, the Front Benches of all political parties accepted that there should indeed be a consumer panel, and I regret that some members of the legal profession now find it too onerous to observe the normal courtesies to their clients, as members of any other profession are required to do.
Baroness Deech
My Lords, there is no doubt that the voice of the consumer needs to be heard, but much turns on how one defines “consumer” and how that voice is heard and dealt with. It is very hard to overlook the scandal that occurred when sick miners were deprived of much of the damages that they should have had because the firm of solicitors that was tied to the union by referral fees creamed off much of the money for itself. The system of referral fees is flawed and it is very hard to understand how a consumer panel can support what looks like the interests of solicitors firms and unions rather than those of consumers. Therefore, I think that there is an element of politicisation in this. It has not worked out in the way that was intended, and it would be right to refer the Bill to a Select Committee for careful examination of the quangos listed, category by category, and for us to think afresh about who sits on them and what their job should be.