Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(15 years, 4 months ago)
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Lord Hunt of Kings Heath
My Lords, this debate relates to the order-making power given to Ministers in relation to the constitutional arrangements of the bodies listed in Schedule 3. I am concerned that very considerable power is given to Ministers in this Bill, and this is an example of that.
Perhaps I may reiterate a point that I made when we started scrutinising this Bill some few weeks ago: we have no objection in principle to a proper review of the public bodies contained in the Bill and to their abolition if they have reached the end of their useful life. Nor do I doubt the need for such bodies to be appropriately accountable to Ministers. However, there also has to be some distance and independence. There is clearly no point in having a public if it does not feel that it has independence. That is why I am worried about the effect of the power in Clause 3. It has the potential for a chilling impact on the behaviour of boards. If boards are aware that, on a whim, a minister can get rid of the chair and members through an order-making power, that would have an undue influence on their behaviour. We will come later to a similar amendment to Schedule 4 in relation to the financial arrangements.
Lord Taylor of Holbeach
My Lords, I thank the noble Lord for this opportunity. We are making progress in a direction with which he will be content and with which I am content. Perhaps I can bring together the various changes that have been made as a result of our amendments.
As the noble Lord rightly points out, this group of amendments deals with Clauses 3 and 4. Clause 3 gives a Minister the power to make provision, by order, to alter the constitutional arrangements of any body or any office listed in Schedule 3—but only those listed in Schedule 3. Of course, now that Schedule 7 has gone, the list is finite. For example, in the case of the Theatres Trust, we intend to do away with the Secretary of State’s role in the appointments process, which will increase the body’s independence as it moves towards charitable status.
The noble Lord referred to Clause 4, which is a parallel clause with different purposes—it concerns funding arrangements—but is structured in the same way. Clause 4 confers on the Minister the power to make an order modifying the funding arrangements of a body or office listed in Schedule 4. In this regard—I am giving examples which I hope demonstrate the purpose to which these clauses will be put—the Government intend to reform the Drinking Water Inspectorate by allowing it to recover its costs from the water industry, bringing this body into line with the existing principle that it is the businesses which benefit from regulation, not the taxpayer, who should bear the cost of the regulation. The previous Government concurred with this approach.
In considering these clauses as a whole, I understand that the noble Lord is primarily concerned that these powers could be used to restrict the independence of bodies. Indeed, the noble Lord said that one of his anxieties was that, by granting Ministers the power to amend the governance or funding arrangements of bodies, the Bill would enable Ministers to threaten the position of chairs or board members who have displeased the Government, or constrain the ability of a body to carry out its work by squeezing its functions. While I seek to reassure the House that the Government have no intention of acting in such a manner, I understand the sentiment behind these concerns. However, the appropriate way to deal with them is to place appropriate limits on the power of Ministers to act, both within the Bill and elsewhere, rather than to abandon the powers altogether.
As with all the principal order making powers in the Bill, the uses of Clauses 3 and 4 are restricted by the conditions described in Clause 8 and elsewhere. Under the proposed government amendments, Ministers would be required to set out the rationale for an order in an explanatory memorandum when laying a draft order before Parliament. I explained that in a previous debate on an amendment tabled by the noble Lord, Lord Whitty. Ministers would thus be held accountable for the use of the power in relation to the particular considerations in the Bill, including the effectiveness of public functions. A change in funding which, for example, would leave a body unable to carry out its public functions properly would be unlikely to meet this objective. I cannot envisage a situation in which a Minister would wish to make such an order. I can further assure the House that in light in particular of today’s third report from the Delegated Powers Committee, the Government are considering whether it is necessary to clarify Clause 8 further. I hope that that provides some reassurance to the noble Lord, Lord Whitty, in light of his previous amendments.
It is also important to remind the House that we are continuing to engage with the noble Lord, Lord Lester, and other noble Lords in relation to his Amendment 175, with the intention of ensuring that the safeguards applying to the order-making powers in the Bill include appropriate protection for the necessary independence of public functions. Furthermore, as I have said, the removal of Schedule 7 from the Bill will ensure that no body or office can be listed in Schedules 3 and 4 and be subject to the powers there unless its inclusion has been approved by Parliament through primary legislation. I hope that this change to the structure of the Bill provides the House with a strong reassurance that full parliamentary scrutiny will be central to the operation of these powers.
In addition to the protections present and planned for the Bill itself, there are safeguards which rightly limit the power of Ministers. First, in terms of appointments and governance, chairs and board members are in most cases appointed in line with rules issued by the independent Commissioner for Public Appointments. This ensures that appointments are made on merit following an open and transparent process. The Government are further committed to strengthening the role of Select Committees to scrutinise major appointments, giving Parliament an effective voice in the process. In addition, for certain appointees who must be demonstrably independent of Ministers, the terms and conditions or relevant statute will provide safeguards to reinforce the officeholder. This might include pre-appointment scrutiny by Parliament or appointing certain officeholders on a single, non-renewable term so that the decisions and actions of those officeholders are not, and are not perceived to be, motivated by a desire to be reappointed. Examples of office holders listed within the Public Bodies Bill that fall within these categories include the chair of the Equality and Human Rights Commission and the chairs of regulatory bodies such as Ofcom.
I wish to emphasis the Government’s position that it is right for Ministers to have a role in public appointments and the governance of public bodies. The Commissioner for Public Appointments code of practice clearly states that the ultimate responsibility for making public appointments rests with Ministers. Ministers should remain answerable and accountable for the overall performance of public bodies and have the ability and authority to intervene if a body is failing. This must include the ability, in extreme cases, to remove board members. The balance that the Government must strike, met by the safeguards I have described, is to retain this principle of accountability while ensuring that public bodies are able to act independently of ministerial influence where required.
That is also the case in relation to the powers in Clause 4, which relates to funding mechanisms. The Government’s position is that ultimate decisions on the allocation of funding must rest with Ministers, who are ultimately accountable for the delivery of public service by central government and for public expenditure within their spending review settlements. It is for precisely that reason that it is against Cabinet Office rules, for example, for public bodies to use public funds to employ PR or marketing consultants to lobby government or Parliament for more funding. We could not support amendments to Clause 4 which would risk undermining that principle. It is also right that Ministers have the assurance that public money is being spent appropriately. In the case of most NDPBs, Ministers and departments must be consulted by public bodies before they exercise certain financial powers such as borrowing or capital expenditure. We believe that the powers that Clause 4 would confer on Ministers are entirely in keeping with this position; they do not establish a new status quo but rather reaffirm ministerial accountability for public expenditure.
It is taxpayers who ultimately fund public bodies in most cases, and I am confident in suggesting that the citizens of this country expect government to account for its use of their money, no matter by whom it is eventually spent. On this basis, I believe that the removal of Clause 3 or 4 from the Bill would be a disproportionate measure, as it would remove Ministers’ ability to take forward the type of changes that I described earlier and instead require primary legislation for such changes, regardless of their nature. As well as preventing or delaying sensible reforms, the removal of Clauses 3 and 4 would run contrary to the principle of ministerial accountability for the performance of public bodies and their use of taxpayers’ money. While I agree with noble Lords who have highlighted the need to safeguard the independent delivery of some public functions, I believe that this can and should be achieved through other means, such as the safeguards within the Bill and outside it.
I am sorry to have taken some time over this, but this explanation probably goes to the heart of many of the concerns that noble Lords have expressed about how the Bill empowers Ministers and the balances that we seek to set within the architecture of the Bill to ensure that this is not abused. On this basis, I contend that both clauses should stand part of the Bill. In the light of the reassurance that I have supplied, I seek the noble Lord’s support on this. Furthermore, I ask the noble Lord, Lord Whitty, whose amendment is I think included in this grouping, not to press his amendment.
Lord Hunt of Kings Heath
My Lords, I thank the noble Lord, Lord Taylor, for a full response to the issues raised. He went a very long way to reassuring me about how this will operate. I do not disagree with him when he says that ultimately Ministers must be accountable. I very much agree with that, but it is also my contention that there is very little point in setting up these bodies unless they, too, have a degree of independence of judgment. The concern has always been that some of the clauses in the Bill will hang like a sword of Damocles over those bodies and inhibit their independence. I take very much the point that the Minister raised that one critical issue here is Clause 8 and the matters to be considered by Ministers when making an order under Clauses 1 to 6. I know that there is a lot of discussion taking place about this, and I hope that there will be a positive outcome. It also takes place in the context of Clause 10 and the order-making procedure. We will come to that in a couple of days’ time. But the Minister has reassured me to a very great extent tonight on this particular matter.
Lord Hunt of Kings Heath
My Lords, I rise to move Amendment 73 in the name of my noble friend Lord Whitty and speak to his Amendment 79, which refers to the Chief Inspector of Drinking Water, my Amendment 80, which relates to the Marine Management Organisation, to which Amendment 155 in the name of the noble Lord, Lord Berkeley, also refers, and to Amendment 81 in the name of the noble Lord, Lord Greaves, which relates to Natural England. All these bodies have a very significant responsibility in terms of sustaining and protecting the environment. Will the Minister explain why these bodies are covered in the Bill? The noble Lord has sat very patiently through much of our deliberations on the Bill. He will know that part of the concern felt about the Bill is that the independence of organisations listed in a number of the schedules is called into question, given the ability of Ministers to intervene, change their governance structure and finance and merge or abolish them simply through an order-making power. There is therefore a general concern about the architecture of the Bill, and one is concerned when one sees these organisations listed, because in terms of protecting the environment it is important that they can discharge their responsibilities independently, without undue interference or influence from a government body.
Lord Hunt of Kings Heath
I am very grateful to the noble Lord, Lord Henley, for his comprehensive response to the amendments in the group. He explained very clearly that these are minor changes which should help to improve efficiency: the JNCC fully supports the aim; the amendment for the Drinking Water Inspectorate is to improve the charging regime. I cannot accept that there is a shortcoming in the 2009 Act. It took six months to go through your Lordships' House; it cannot possibly have a shortcoming.
The Minister explained that the amendment on Natural England was to remove ambiguity; and that government Amendment 79A was to respect the wishes of the Welsh Assembly Government. This is a good opportunity to acknowledge the referendum success last week, which I am glad to do. The answers of the noble Lord, Lord Henley, seem entirely reasonable. The problem is that a new Minister could come on the scene and use the Bill to make draconian changes to those bodies because they are listed in the schedules. That is why, in the end, we come back to the architecture of the Bill.
My worry is that, for instance, Natural England is not always the most favoured of organisations sponsored by the department. The very fact that it appears in one of the schedules is a kind of sword of Damocles, which the department and the Minister’s officials can hold over Natural England. Although his response tonight has been entirely reasonable, I remain concerned about the fundamental architecture of the Bill. Of course, in the light of his response, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath
The noble Lord, Lord Taylor, responded to the question that we raised about Clause 4 when we debated Clause 3 stand part. I appreciated his response. We look forward to further debate on Wednesday on this matter, but the response he made very much applies to this part of the Bill as well.
Lord Hunt of Kings Heath
My Lords, this amendment is on the Marshalled List in the name of my noble friend Lord Whitty. We listened carefully to the arguments of the noble Lord, Lord Taylor, earlier this evening concerning the protections that will be in place for the economic regulators listed in this Bill. The changes proposed to Ofcom obviously fall into this category. I was very much persuaded by the arguments made earlier by my noble friend Lord Whitty that, by allowing these changes to remain part of the Bill, Parliament is giving up the right to revisit their wider strategic and ongoing role through the medium of primary legislation. There are some concerns about the detailed changes proposed for Ofcom under the powers of this Bill but, more importantly, we are keen to secure a powerful and meaningful role for Ofcom as an independent regulator in the future.
Last week, this House had what can only be described as a spirited debate about the Government’s proposal to allow Mr Murdoch to take over the remaining shares in BSkyB. It is fair to say that considerable concerns were expressed about this from around the Chamber. If anything, the mood of that debate would have supported a stronger and more interventionist role for Ofcom in ensuring media plurality in the future. In this final debate tonight, can the Minister reassure me that the overarching responsibility for Ofcom to maintain a diverse media and prevent a narrowing and damaging spread of ownership will be maintained if the proposals in this Bill go ahead? What guarantees is she able to give that Ofcom’s independence will not be compromised by an overreliance on being asked to report only at the discretion of the Secretary of State?
These are important issues, which have already been touched on during earlier debates, but I take this opportunity to say that it is important that we are satisfied that the proposals in the Bill do not weaken Ofcom’s independent status. I beg to move.
Baroness Rawlings
My Lords, Ofcom is a highly respected organisation that, since its creation by the Office of Communications Act 2002, has successfully regulated one of the most dynamic and diverse sectors. The media and communications market has developed significantly since Ofcom was created and it is only appropriate that eight years later we take the opportunity to make some small changes to how it operates.
Amendment 82 would prevent changes to Ofcom’s funding arrangements. We believe that in the current environment it is only right that Ofcom should have the ability to charge for certain services to alleviate the effect of cuts. Under the Communications Act 2003, Ofcom is not currently permitted to charge operators for this work and, at present, meets the £400,000 per annum cost of the work out of a grant in aid from the Department for Business, Innovation and Skills. Most other countries currently charge for this work, so we would be bringing Ofcom into line with international practice by allowing it to charge for this service.
Amendment 96 would mean that we could not change the way in which Ofcom carries out its functions. In the Communications Act 2003, the structure of Ofcom’s committees was set out in a disproportionately prescriptive and detailed manner. It makes sense to allow Ofcom the flexibility to streamline the structure to meet the requirement and to reflect the diverse needs of the people involved as it best sees fit. This should not compromise its independence. The ability to reshape the structure of the various advisory committees, panels and boards should also lead to a reduction in bureaucracy and could save Ofcom around £100,000 a year.
Following the Government’s decision to table an amendment to remove Clause 11 and Schedule 7 from the Bill, Ofcom will not appear as previously tabled, so Amendment 158 has been withdrawn from the Marshalled List. I ask the noble Lord to withdraw Amendment 96.
Lord Hunt of Kings Heath
My Lords, I am most grateful to the noble Baroness and of course I shall not press my amendment to a vote. I would say only that the arguments about Ofcom are very similar to the arguments put forward in our debate on the previous group of amendments. The problem is the very appearance of such a body in this Bill, notwithstanding the commitments given at the Dispatch Box by Ministers. This also relates to whether we will reach some sort of agreement on sunset clauses and on the extent to which a body lives on in this Bill for a long time. A time limit would provide great reassurance.
The noble Baroness has said that Ofcom is in the Bill for eminently sensible reasons. Our problem is that, in a couple of years’ time, Ministers might take against Ofcom and use their powers to make much more radical changes. The context is what we have described as the architecture of the Bill. I am hopeful that in the next few weeks we will be able to decide a sensible way forward that enables the Government to undertake reviews of these bodies. I fully accept that they have every right to do so, but they should do so in a way that secures their independence as far as that is appropriate and with proper parliamentary scrutiny. I am grateful to the noble Baroness and I beg leave to withdraw the amendment.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(15 years, 6 months ago)
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Lord Clark of Windermere
The noble Lord is very perceptive. I am just about to deal with those points. I compliment him on the excellent work he did when he was chair of the Football League. It was much appreciated. He was able to bring to that role the discipline and vision that we all respect.
The key point I want to turn to now is what the Government have in mind when the FLA is abolished. At one stage, there was talk that it would be taken in-house by the Department for Culture, Media and Sport, but I have serious doubts about how viable that would be. The alternative is to look at the safety of sports grounds. I am in favour of that because the point I was making was that the FLA has in the past performed this job which is outside its remit. It would be helpful if all sports grounds were regulated by the same body. I am trying to tease out of the Minister whether that is what the Government are trying to do. If they are, will they give us some ideas about the funding? It is not only about the regulations. One thing the FLA did was to work with City & Guilds to have an NVQ course for people who work in safety in grounds. That is the sort of thing that we ought to be encouraging.
This is not clear. We want some clarity because at the end of the day we do not doubt that the Government have in mind some agency to provide this and to guarantee this standard across the country, but many of us would like to see it right across sports.
Lord Hunt of Kings Heath
My Lords, I am sure we are all grateful to my noble friends Lord Faulkner of Worcester and Lady Taylor for allowing us to debate the Football Licensing Authority. My noble friend Lady Taylor described supporting Bolton Wanderers as being a mixture of highs and lows; of course, as a supporter of Birmingham City, I fear it is usually all too low and very few highs.
I want to start by paying tribute to the Football Licensing Authority. There is no doubt that safety issues are very important in our football grounds and that there has been a huge improvement over the years. As the noble Lord, Lord Mawhinney, said, there has been an improvement in overall safety culture. I believe that the development of stewarding by the clubs themselves has enhanced the development of a secure environment in a non-confrontational way and that we have seen a big improvement in facilities. However, with all the improvements that have taken place, can we say that the problem has gone away in its entirety? I do not think it has. There have been some incidents—I am sorry to say at my own football club in a derby against Aston Villa only a few weeks ago—where there were issues of concern about safety. That suggests to me that we can never be complacent. The answer to the noble Lord, Lord Mawhinney, is that however much—
Baroness Taylor of Bolton
While my noble friend is on this point and talking about the future, does he agree with the comments of Paul Thorogood, the chief executive of the Football Foundation, which is responsible for many of the support packages for improvements at smaller clubs, that he would be extremely worried were the FLA to be abolished because that would affect the future safety of the projects with which the foundation is involved?
Lord Hunt of Kings Heath
My noble friend raises a most important point. Even if you take Carlisle United, with the dedication of my noble friend as a director and his concern for safety, surely directors in their responsibilities regarding safety can still take advantage of the advice and presence of a body such as the FLA. I am convinced that the FLA or a similar body has an important role to play in the future.
I see from noble Lords opposite that the noble Baroness, Lady Rawlings, whom we welcome to our debates on the Bill, is going to give a positive assurance about the future. That would be very welcome. However, I have to say to her that our problem with the Bill, as described by the Public Administration Select Committee only last week, is that the overall reviews by individual government departments were very poorly managed, there was an absence of meaningful consultation, the tests in the reviews were not clearly defined and the Cabinet Office clearly failed to establish a proper procedure for departments to follow. That has left noble Lords in a vacuum regarding the intention of the Government. The noble Lord, Lord Greaves, referred to the mysteries of the Bill, and this is a classic case in point.
The noble Lord then went on to say that the real problem is the architecture of the Bill. I do not think he was in his place when we had our debate on the first group of amendments when we discussed the architecture, but it is perfectly clear that if the Government were to come forward and make it abundantly clear that they are now prepared to make changes to the architecture of the Bill in relation to Schedule 7, in particular, and also on public consultation, on the procedure under which orders would be debated in your Lordships' House for bodies that come under the Bill and other matters that we have discussed, then noble Lords would have much more confidence. At the moment, we have been left in the dark. It is clear that noble Lords do not know about the Government’s intention regarding the FLA. I do not think it is satisfactory that we are here in Committee debating the Bill when there is uncertainty in your Lordships' House and in the sports world as a whole. I am sure that the noble Baroness will be able to give us some comfort that the issues of safety will be taken forward in future, but I hope that she will give some comfort about how the Government intend to deal with the Bill more generally.
Baroness Rawlings
My Lords, I thank the noble Lord, Lord Faulkner of Worcester, and the noble Baroness, Lady Taylor of Bolton, who put down this amendment for us to discuss, and all the other speakers. This debate gives me the opportunity to clarify, which the noble Baroness asked for, and to clear up many of the misunderstandings and points on this issue.
Amendment 37 removes the Football Licensing Authority from Schedule 1, and Amendment 91 inserts the said body into Schedule 5, allowing its functions to be modified or transferred while retaining the body in its current form. The Government are very clear that the Football Licensing Authority carries out an important role, and we want this to continue. Indeed, as the noble Lord, Lord Faulkner, said, the Government are supporting a Private Member’s Bill that seeks to reconstitute the Football Licensing Authority as the sports grounds safety authority and will extend the authority’s advisory functions so that it has the power to provide advice about safety at sports grounds to any national or international organisation, person or body.
Our intention is that the authority, as the noble Lord, Lord Clark of Windermere, said, will continue as a separate body, whether in its existing form or as a new sports grounds safety authority until after 2012, when its expertise and functions will be transferred to another body. Doing so would allow the authority to share the back-office functions of a larger organisation. This should lead to greater efficiencies and make it less constrained from broadening out its role. It will therefore be able to make the best use of its expertise and reputation.
I indicating that we will abolish the FLA as an independent public body only after 2012 will allow us time to make certain that we have an appropriate home for its expert role and functions. Over the next 12 months, we will discuss the options with the FLA potential host organisations and interest groups to make certain that we have an appropriate solution in place in time to meet the commitment to implement reforms after the 2012 Olympics. This proposal would not risk the important strides made over the past 20 years to improve safety at football after the Hillsborough disaster.
I take this opportunity to assure the House that we do not intend to change the law in relation to football ground safety and, as I have made clear, these important functions need to be retained.
Lord Hunt of Kings Heath
My Lords, I must say that this is a bit of a puzzle because Schedule 1 lists the bodies where power to abolish is being given. My noble friend has suggested that the FLA be moved to Schedule 7. I have a theological difficulty with that because—
Lord Hunt of Kings Heath
Yes, it is Schedule 5; I would like to see Schedule 7 removed from the Bill. It is very difficult to know why the noble Baroness’s department is not using the Bill in the way in which it is constructed. Schedule 5 is headed “Power to modify or transfer functions: bodies and offices”. Why on earth is the FLA not in that schedule?
Baroness Rawlings
That part of the Bill will be looked at later, as I have said. With its important functions, it is not being abolished in this Bill. However, as I have set out, the Government’s proposals include the abolition of the FLA as such after 2012 and not now.
Lord Hunt of Kings Heath
My Lords, no date is given as to when bodies are to be abolished. Schedule 1 sets out the bodies where this Bill gives power to abolish. The puzzle is that, because Schedule 5 gives the flexibility to list bodies where at some stage—not at the moment maybe but at some time in the future—you might want to transfer or modify their functions, why on earth is the FLA not in that, given that the Government have clearly designed the Bill to give flexibility for such organisations? The noble Baroness might want to come back on that.
Baroness Rawlings
With respect to the noble Lord, Lord Hunt, I have just said that the FLA will not be abolished until after 2012. We believe that there is a strong rationale for doing so, while acknowledging and seeking to protect the benefits associated with its important public functions. The Government will continue to support the Private Member’s Bill and will work with Parliament to secure what we hope will be an extremely positive outcome. On this basis, I hope the noble Lord will feel able to withdraw his amendment.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(15 years, 7 months ago)
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Lord Greaves
My Lords, I expected that we were breaking for dinner. Do we not break for dinner in Committee?
Lord Greaves
No? I thought that we were. All right. It is a good job I did not go and have my dinner, isn’t it?
Amendment 28