Public Bodies Bill [HL]

Viscount Eccles Excerpts

Monday 4th April 2011 Lords Chamber

[Lord Kennedy of Southwark]

My Lords, I support Amendment 65 moved by my noble friend Lord Hunt of Kings Heath, and in doing so I shall speak to Amendment 67 tabled in my name, although I will not move it separately. This amendment, along with all the amendments in this group, seeks to improve the consultation process that holds Ministers to account by Parliament. Amendment 67 would place a duty on Ministers to consult with the relevant local government body and any relevant local authority. Who could be against that? I do think that Clause 10(1)(b) and (g) are specific enough on their own because they leave too much in doubt about what is happening. You could say that we are being left sitting in a ministerial fog when what we need is clarity. My amendment would give that clarity by placing a clear and unambiguous duty to consult local government where those functions which are going to be subject to an order have a bearing on local government.

I shall be interested to hear what the Minister has to say. I think that my amendment will help the Government along towards working more closely with local government and should cause no problems. It could even be said that it moves the Bill a bit further along the localism road that the Government say they are so keen to promote. I shall leave it there. I echo the comments of my noble friend Lord Hunt of Kings Heath in saying that I hope that the noble Lord, Lord Taylor of Holbeach, will feel able to move a little on this point.

[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.

--- Later in debate ---

[Lord Neill of Bladen]

No, my Lords. The word “must” is already in Clause 11(2), and attention has been drawn to that fact. There is no “must” in line 3 on that page, which is where there ought to be a requirement. That is what the amendment is dealing with.

[Viscount Eccles]

My Lords, I think it was Hegel who got us all into the categorical imperative of “must”. I have certainly tried to organise my life on the basis of using the word as infrequently as possible, but I defer to more expert opinions as to whether it should be “must” rather than “may”. I would like to emphasise the point, which was made much more elegantly than I can by my noble and learned friend Lord Mackay of Clashfern, that we are considering this Bill. I, too, have very strong views about the way in which orders and statutory instruments are laid and the way in which the House considers them.

In thinking about that, my mind goes back to home information packs and the big casino in Manchester. It is not unknown that this House decides that it is not going to live with what at that time was an ordinary affirmative order rather than a super-affirmative order, but Amendment 71 is in danger of over-elaboration. If both Houses of Parliament take Clause 11 as it is in the Bill at present, they have the opportunity for full and adequate scrutiny and, by the recommendations of committees, to put Ministers in the position where they will have to bring forward an amendment.

On the question of amendments, the point is well illustrated by the Bill. Not many amendments are moved by Members of this House that, even if they are approved, remain as they were on the day of approval. They need to go back to the parliamentary draftsmen. The committees of this House do not have parliamentary draftsmen. As an amending and revising Chamber, we do our best work when we persuade the Government that they should take an amendment away and make it into something that will really work as legislation.

Very briefly on the matter of over-elaboration, the amendment of the noble Lord, Lord Hunt of Kings Heath, would make us go back to the consultation and the representations made in that consultation three times—not just the first time because the Minister must lay it out a second time and then, as in the proposed subsection, a third time. That is overly repetitious, because unless it is also specified that something should be put out to a new consultation, the process will be overly elaborate.

I should like to make one other point. If a draft order is referred to committees of both Houses and those committees have the power to put forward amendments but those amendments are in disagreement, it will take a very considerable time to sort out that kind of disagreement between the two Houses. Given that many of the things that will be done when this Bill is enacted are in fact pretty straightforward, simple and not very controversial, to over-elaborate the process is a mistake.

[Lord Maclennan of Rogart]

I rise briefly to say that I agree with my noble and learned friend Lord Mackay of Clashfern. The issue raised by Amendment 71 is of great importance and ought to be considered in the wider space of the practices of the House as a whole. It does seem anomalous that we cannot amend secondary, subordinate legislation, and therefore it would be attractive if proposals could be referred to committees for consideration because it could be a time-saving approach. It would allow committees to consider in detail matters that cannot effectively be considered in a debate on a statutory instrument that lasts one and a half hours. However, we have some of that process in the House already.

The wide-ranging effects of Amendment 71 would delegate too much power to committees. I take the view that a case still has to be made that committees should have binding authority to prevent legislation being considered on the Floor of the House. That, as I understand it, is what this amendment could result in. It is also not entirely clear if the committee considering whether or not a draft order should be approved under proposed subsection (9) would be an existing committee that took it upon itself to do so. I think that more than one committee has that power, or a power to consider draft orders. It might be the intention of the noble Lord who has moved the amendment that this should be for a special ad hoc committee and not for the Select Committee on Delegated Powers and Regulatory Reform. That is not made clear. However, if an ad hoc committee had to be set up, that would be another stage in the process of deciding whether the measure was of sufficient importance to require that to be done.

This is not a matter to be decided on Report, however important it may be—I am quite clear that it is immensely important. It should be referred for wider consultation in the House, perhaps by the Procedure Committee. This is also a matter that should be considered in conjunction with another place because both Houses have an interest in it. It might make more sense to do that in a Joint Committee.