Assisted Dying Bill [HL]
Lord Hunt of Kings Heath Excerpts(9 years, 4 months ago)
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Lord Phillips of Sudbury
The short answer is no. Lawyers charge very different amounts. A city lawyer charging £500 or £700 an hour is rather different from a country lawyer charging £100 or £200. It will also depend, as I said, on the complexity, but one is talking of thousands, not hundreds, of pounds. That is about the best I can do on that. However, as I said, I hope that the principle will commend itself to the Committee and that necessary changes to the drafting of my amendment can be dealt with prior to the next stage. I beg to move.
Lord Hunt of Kings Heath (Lab)
My Lords, I was rather taken aback by this being such a short debate. I very much welcome the noble Lord’s amendment. We discussed this matter at a little length on the first day of Committee. As he said, applications to the High Court in the circumstances of the Bill, if enacted, could, but not always necessarily, involve complex procedures. The noble Lord is not able to quantify the cost and that is entirely understandable. However, I recognise that for any Government there is then a problem in not knowing that potential cost.
On the first day in Committee, I thought that the Minister was reasonably sympathetic to the point. He referred to the LASPO Act, which has,
“an exceptional cases provision which deals with questions of the Human Rights Act and the convention requirements”.—[Official Report, 7/11/14; col. 1879.]
He said that that was as far as he could then go on the question of legal support. Without entering into any question of financial commitments, which will no doubt haunt both sides of the Committee, I just ask whether he can go a little further and become a little more sympathetic on this issue.
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, it is not a question of sympathy. As the noble Lord well understands, it is a question of not committing a future Government as to how they would respond to this position.
It might help if I clarify that the scope of civil legal aid is set out in the LASPO Act 2012. It provides that civil legal services are to be made available subject to satisfying the means and merits and the matter or type of case being within the scope of the civil legal aid scheme. In order to bring a matter within the scope of the civil legal aid scheme, an amendment to Part 1 of Schedule 1 to LASPO would need to be made. The power to make such an amendment by way of affirmative secondary legislation is already set out in LASPO. It would therefore be unnecessary and not usual practice for separate provision to be made in other primary legislation to provide such a power.
That is the position quite apart from the question of exceptional funding, which is concerned, as I said when we were last in Committee, with matters where it could be said that there was a violation of the convention right or, alternatively, a violation—although I do not think it is relevant—of some provision of EU law. That remains an uncertain provision, but it could potentially be relevant, so that is my answer.
Lord McColl of Dulwich
I have been trying to intervene for some time. I strongly support the amendment on terminal illness tabled by the noble Baroness, Lady Finlay, but noble Lords will be pleased to know that most of what I was going to say has already been said so I will not repeat it. It was said very ably by the noble Baroness, Lady Campbell of Surbiton, for whom I have the greatest admiration and with whom I have worked for many years.
There is an aspect of the definition of terminal illness that I should like to deal with. Under the benefit rules, an attendance allowance or a personal independence payment can be made under special rules if somebody has a terminal illness. The definition is therefore important. My understanding is that, for the purposes of receiving one of those benefits under the special rules, someone is defined as being terminally ill if they have,
“a progressive disease and his death in consequence of that disease can reasonably be expected within 6 months”.
This definition is set out in Section 66 of the Social Security Contributions and Benefits Act 1992. Are we going to say that anyone who receives one of these benefits would be eligible for assisted suicide on the basis of their physical health? I raise this as a genuine question because the Personal Independence Payment Handbook, issued in August 2014, also states:
“Awards made under the special rules for terminal illness will be for 3 years”.
This seems to be rather at odds with the expectation that the person is reasonably expected to die within six months.
To get this benefit, individuals have to get a completed DS 1500 form from their doctor, as has been mentioned. In a forum discussion on the internet, many of the individuals who got the benefit as a result of this form were definitely of the view that they would be living for more than six months. I am concerned that in future they might be encouraged to consider assisted suicide because they would fall within the definition of the Bill. The form was also referred to in the House of Lords report on the Bill of the noble Lord, Lord Joffe. I quote one doctor, who said:
“A simple bit of practical evidence is one of the benefit forms that are filled in for patients assigned to the doctor thinking that the patient has six months to live. I would not like to count how many of those forms I have signed in my life for patients still living after a year, eighteen months or even longer”.
Another doctor giving evidence to that committee about decisions on who had a terminal illness said that,
“doctors make arbitrary decisions about when a patient has reached a terminal stage. This can be when the patient is discharged from specialist care, when the patient moves from a curative state to a palliative state; some just use the position when what is known as the DS 1500 Form is actually prescribed, or some just use the point where patients have become bed-ridden or immobile”.
Surely we need something far more rigorous than someone being “reasonably expected” to die within six months when the consequence is that their life is actually ended. I fully support Amendment 20 of the noble Baroness, Lady Finlay, to remove the word “reasonably”.
Lord Warner
My noble friend referenced me in saying that doctors were overoptimistic. What I said was that one review of evidence has found that fewer than one in four patients outlived the prognosis when their clinicians predicted survival of six months or less. I said that that research rather suggests that doctors have a tendency to be overly optimistic about how long people will live, because it shows that when people thought they had six months to live, actually a large number of them failed to get through the six-month period.
Lord Hunt of Kings Heath
My Lords, like the Government, the Opposition are not expressing a view on the Bill, and we have a free vote on this side of the House. I ask the Minister to help me with an interpretation of the meaning of Amendment 13, particularly in relation to the meaning of the provision that one of the registered medical practitioners has to have had the person registered with them for at least six months. Does he take that to mean that a patient has to be registered with a general practitioner for the provisions of the Bill to apply? I am assuming that when patients are under the treatment of other doctors, such as hospital doctors, they are not registered with them. This is important. If I am right—and I am expressing no view on the merits of the amendment—it would be helpful to the Committee to know from the noble Lord, Lord Carlile, what would happen in circumstances where, for reasons which have been set out by other noble Lords, a person is not registered or has been removed, sometimes forcibly removed, from the list by the GP under the arrangements that apply. It would be helpful if he could clear up that point.
Lord Carlile of Berriew
I am happy to clear it up. My understanding—and I am happy to be corrected by the Minister if I am wrong—is that if I am nominally registered with Dr A, who is in a practice with Drs B, C and D, and I go for treatment and am seen and treated by Dr D, I am being treated by a doctor with whom I am registered. That is because my registration with a doctor in a practice includes registration and treatment by any other doctor in that practice.
Lord Hunt of Kings Heath
That is a very helpful response. Can the noble Lord explain the circumstances in which a patient is not so registered? At any one time there are thousands of patients who are not registered.
Lord Carlile of Berriew
If a patient is not registered, they are not registered. If a patient goes as a temporary resident—as I think the term used to be; I am not sure if it still is—to see a particular doctor, a general practitioner, they are then registered for the period of the temporary residence, which from memory is, or at least used to be, one month, and which may be renewable for the purposes of that treatment.
To deal with the broader aspects of the noble Lord’s question it might be worth making the further point, while I am on my feet, that it is very difficult to imagine that a patient would be in the situation described in the Bill but had not been treated for at least six months by a practitioner, such as the practitioner who was treating their cancer. That is the general experience that people have.
Ian Brady
Lord Hunt of Kings Heath Excerpts(10 years, 6 months ago)
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Lord McNally
My Lords, it is very difficult to find much sympathy for Mr Brady, although it has to be said that he has been judged to be medically ill. Our law says that in those cases the mental health review tribunal is part of the process of our legal system and that a patient is entitled to a tribunal hearing, as set out in Part V of the Mental Health Act 1983. We cannot have one law for those we find worthy and another law for those we do not like. In some ways, it is the fact that Mr Brady has the protection of the law that should give reassurance to the rest of us.
Lord Hunt of Kings Heath (Lab)
My Lords, to go back to my noble friend’s point, surely, given the size of the cost to the local mental health service, it ought to be helped out by the Department of Health.
Lord McNally
My Lords, I asked that question during the briefing. It is an almost unique case. I think that there have been only two such cases in recent times. I am speaking off brief at the moment, but it seems unfair that a single health authority should take such a disproportionate hit on something that is really a national matter. However, the rules as they now apply are that the Ministry of Justice takes the state costs through the Legal Aid Agency and the health authority concerned takes the hit with regard to costs. The noble Lord makes a valid point and I will take it back to a probably not overenthusiastic Health Minister.
Leveson Inquiry
Lord Hunt of Kings Heath Excerpts(11 years, 5 months ago)
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Lord Hunt of Kings Heath
My Lords, I am very grateful to the noble Lord, Lord McNally, for repeating the Statement of his right honourable friend the Deputy Prime Minister in the other place. It is a bit like the No. 11 bus: we have been waiting a long time for a Statement on press regulation and two come along at the same time. The House has shown remarkable sympathy to accommodate the strains and stresses of the coalition Government and allow this to happen. Perhaps it will be equally accommodating when we are dealing with the Electoral Registration and Administration Bill, which we hope will come along at some point.
I found myself largely in agreement with much of what the noble Lord, Lord McNally, said. I also pay tribute to his long-standing and consistent work in this area. Of course, the reason why the Deputy Prime Minister found it necessary to make a statement separate from that of the Prime Minister is now clear: there is a fundamental difference between the Prime Minister and the Deputy Prime Minister. The Prime Minister is extremely reluctant that statute should be involved in any way in a system of independent regulation of the press, whereas the Deputy Prime Minister is clearly convinced that a new system of independent regulation must be supported by statute. I invite the noble Lord, Lord McNally, to reiterate that Lord Justice Leveson could not have been clearer about why statutory underpinning of his proposed system of independent self-regulation is required. Paragraph 70 of the executive summary of the Leveson report says plainly that,
“it is essential that there should be legislation to underpin the independent self-regulatory system and facilitate its recognition in legal processes”.
Does the noble Lord, Lord McNally, accept that Lord Justice Leveson absolutely rejects as inadequate the proposals put forward by the noble Lord, Lord Black? In paragraph 53 of the executive summary, Lord Leveson says that,
“the new body must represent the interests of the public as well as the press and the proposed model”—
the Black model—
“does not go anything like far enough to demonstrate sufficient independence from the industry (and in particular, serving editors) or sufficient security of high and unalienable standards for the public; neither does it appear to have sufficient support from all the major participants within the industry”.
Surely that is persuasive in the need for action to provide the statutory underpinning that Lord Justice Leveson puts forward.
In his response, the Prime Minister seems to be setting himself against a fundamental point of what Lord Justice Leveson proposes. He is setting himself against where the public are and he is certainly setting himself against where victims of the media want politicians to be. Of course, legislating on the press is a difficult and complex area but we believe that the Prime Minister is making a misjudgment on this issue. He should put his faith in what Lord Justice Leveson is proposing and enact it.
We welcome the Statement from the noble Lord, Lord McNally, and look forward to working in cross-party talks with him and his party on this point. It is very simple: we should not allow the press to have another lock-in at the last chance saloon, which has lasted for so many decades. Our democracy needs a free press, but a clean press, too. We will work very hard to achieve that.
Lord McNally
My Lords, I am grateful for the kind, personal remarks of the noble Lord, Lord Hunt. The noble Lord, Lord Prescott, called out from a sedentary position, “What’s the difference?”. The noble Lord, Lord Hunt, tries to find differences. One of the things that I found most encouraging about the two Statements—indeed, the three Statements made in the other place today—is the broad level of common ground. I hope that everyone will take the opportunity, including my noble friend Lord Black, to read the Leveson report and then match the statements that they made before reading it in the light of it. In some ways it is an insult to someone who has spent as long as Lord Justice Leveson has, whether it was a year or nine months—I am never quite sure, but it was a very long time—to produce a four-volume 2,000-page report, and then to announce, “I agree with this; I agree with this; I agree with this”. Let us read the report and think about how to go forward. I am pleased that, as far as I am aware, those cross-party talks have already been in place for the past 55 minutes, which bodes well.
House of Lords: Reform
Lord Hunt of Kings Heath Excerpts(12 years ago)
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Lord McNally
That is a rather harsh judgment on the Government. It is right that the case for boundary reform and House of Lords reform are judged on their merits. The Government put them through this House for scrutiny separately. They are not interlinked but are part of the Government’s and the coalition’s overall commitment to constitutional reform.
Lord Hunt of Kings Heath
My Lords, the noble Lord has said that the Government will carefully consider the recommendations of the Joint Select Committee. He may have observed that the committee did not achieve exact unanimity in its conclusions. But the one issue on which all members seem to be agreed is that Clause 2 of the Bill will not do. Will the noble Lord say what the Government’s response will be? Will he also respond to the evidence given by the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Pannick, in relation to the Parliament Act 1911, in which they say it is very clear that that Act was introduced to govern the relationship between an elected and an unelected House?
Lord McNally
My Lords, less than 24 hours after the publication of a carefully considered report, it would be impudent of me to start pronouncing on some of these issues. As to the opinions of the noble Lord and the noble and learned Lord on the 1911 Act, the strength and the powers of the 1911 and 1949 Parliament Acts were recently tested in court.
Public Bodies Bill [HL]
Lord Hunt of Kings Heath Excerpts(12 years, 5 months ago)
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Lord McNally
My Lords, I had better intervene now so that I do not keep my noble friend Lord Newton in suspense for too long. Alas, as he knows, because we have discussed this on a number of occasions, I am not able to deliver the kind of assurances that I was able to deliver for the noble Lord, Lord Ramsbotham.
Lord Hunt of Kings Heath
My Lords, can the Minister clarify whether he is seeking to wind up the debate?
Lord McNally
No, I am not seeking to wind up the debate. I thought that it would be useful for me to say something now so that there would be something for the noble Lord to attack me on afterwards—and then I can attack him after that. No, I thought it would be useful at this stage to state where we are coming from because, as I say, I had a number of conversations with my noble friend Lord Newton. I had a meeting with him and my noble and learned friend Lord Howe and I took their concerns back to my colleagues.
However, I have to make it clear that the purpose of the Government today is to restate their intention to abolish the AJTC outright, using the powers in Clause 1. I also make it clear that the Government have no intention of merging the AJTC with the Civil Justice Council. There is no appetite within Government or the senior judiciary to add to the CJC to the Bill. I am pleased that following a Division in Committee, noble Lords agreed to the proposal to abolish the AJTC. I am conscious that what my noble friend Lord Newton has been trying to do—I still use the term noble friend, as I hope he will—is to give the Government some wriggle room on this matter. Sadly, as I have just explained, the Government do not want wriggle room on this matter but to abolish the AJTC.
The Government’s rationale for abolition has been made in both Houses and on a number of occasions. The Government are committed to this reform because the AJTC is an advisory body whose functions are either no longer required or, in the case of its policy functions, are more properly performed by the Government themselves. The abolition of the AJTC will have no direct impact on judicial independence or—
Baroness Scotland of Asthal
My Lords, perhaps I may add a few words to those already so ably spoken by the noble and learned Lord, Lord Woolf. He mentioned that the civil justice and criminal justice systems are already covered by a council, one for each. Noble Lords will know that approximately 63,000 cases come before the civil justice courts and that approximately 223,000 come before the criminal courts, but 650,000 cases come before tribunals. Although this afternoon we have talked loosely about administrative law, one has to understand that this is the meat and drink of the lives of ordinary men and women in our country. We are talking about the benefits system, immigration and all the issues that touch the lives of many poor people who do not have the wherewithal to go anywhere else. Therefore, this council’s role is at least, if not more, important than the councils that are being preserved for the civil and criminal justice systems. It is acknowledged by all who know the council’s work that it is a very precious resource. It safeguards the situation for the citizen, and in these days of fiscal austerity the need for it has never been greater.
Legal aid is being threatened. The proposed restrictions are severe. If implemented, the citizen’s need for an avenue through which administrative acts by the Government of the day can be challenged will be enhanced. The question is: if this amendment is not passed and if the Government are not asked to think again, how do they propose to retain the independence that has always been deserved and needed by the individual? How then do we ensure the transparency and fairness which we have all come to recognise as an integral part of administrative justice? I ask the noble Lord to think very seriously indeed about whether the amendment of the noble Lord, Lord Newton, is not a lifeline which the Government should now seize.
When dealing with mistakes—and I honestly believe that this is a very grave mistake indeed—Confucius gave the following advice, and I will read it just to help the Minister, who may be minded to accept it:
“Be not ashamed of mistakes and thus make them crimes. But a man who has committed a mistake and does not correct it is making another mistake”.
I suggest that Confucius was right, and that the noble Lord should avoid that trap.
Lord Hunt of Kings Heath
My Lords, the noble Lord has already given his views. He has had a little time perhaps to reflect on the debate, and one can only hope that having heard the debate he might come back a second time with a somewhat more responsive point of view than we originally heard. I certainly, from the opposition Benches, once again support the noble Lord, Lord Newton, on this. I thought he made the case eloquently once again for the value of the Administrative Justice and Tribunals Council and the impact for good that it has on the performance of many government departments in Whitehall. In particular, I pay tribute to the council for its focus on what it describes as improving initial decision-making as it affects members of the public. That is surely the importance of the council; it is concerned with administrative processes in relation to members of the public.
My noble and learned friend Lady Scotland referred to legal aid. It is interesting to reflect—indeed, my noble friend referred to this earlier in our debates—on the council’s comments on the impact on legal aid. I am not raising the issue of legal aid; the point is that the council has said that it believes that the Government bear responsibility for,
“causing many of the appeals in the administrative justice system … through poor … decision-making, poor communications … delay or through overly complex and … incomprehensible legislation and regulations”.
The council has been making these points for over 50 years and it has undoubtedly led to improvements in these administrative processes. There is clearly still some way to go. From what the noble Lord, Lord McNally, has said, we are to believe that everything will be all right because his department will be able to analyse the performance of different government departments, comment on them and encourage them to improve their administrative processes.
Is it realistic to think that the Ministry of Justice will be able to make that kind of statement and identify faults in administrative processes in other departments of government, let alone in itself? Of course, the Ministry of Justice will have to be subject to some kind of scrutiny by the team of officials that will be based in the Minister's department. The history of trying to influence government departments in this area surely shows that an external advisory body would be much more likely to have an impact, particularly if it were able to make public statements about the faults it finds in decision-making processes, than would a unit in the department of the noble Lord, Lord McNally.
Lord McNally
My Lords, when one gets advice from people ranging from Confucius to the noble and learned Lord, Lord Woolf, it is necessary to take a pause. However, I would like to House to return to the first principles of the Public Bodies Bill. The intention was to look at a range of bodies that had grown up to perform various functions. The philosophy behind it is one that I support. Over the past 20 to 30 years, Governments have got into the habit of passing the buck. When in doubt, one should set up an advisory body, an inquiry or a tsar—anything to prevent a Minister having to stand at the Dispatch Box and take responsibility for something that has been done. It is partly against that trend that the Public Bodies Bill set off on its journey some months ago.
Although it is always very tempting to take up the kind of options offered by my noble friend Lord Newton, as I said in my helpful opening guidance remarks the Lord Chancellor and the other place have listened. Both Houses came to a firm conclusion on abolition and therefore I am not tempted to go down the side road offered by my noble friend, however attractive it might be. We have mentioned the public expenditure aspect of this. Whenever one addresses problems, there is a tendency to say, “It is only £1.3 million”. However, that is more expenditure. Perhaps I may humbly say that you always know when a lawyer is insulting you because they are very polite about it.
Lord Hunt of Kings Heath
I wish no disrespect to the noble Lord. I have just two comments. First, I wish he had taken part in our debates on the Health and Social Care Bill. His noble friend Lord Howe is busily seeking to hand over all responsibility for the NHS to the biggest quango there will ever be. Secondly, on the question of cost, will he reflect on the evidence that the council gives about poor decision-making, poor communication and delay because of overly complex or incomprehensible rules? Surely, the impact of the council is to help the Government to reduce expenditure. Does he think that his department will be publishing advice like that on the performance of itself and other government departments?
Lord McNally
Indeed. One of the thrusts of our argument is that the sooner the Government get back into the habit of taking responsibility for their own inefficiencies, the better. My department and HMCTS are already working closely with DWP on a range of initiatives to improve initial decision-making. It is about time that government departments took responsibility and I concede a whole range of areas where initial decision-making is poor and causes expense. But that is not a reason to pass the buck to some other body. The job is for government to get on with improving the efficiencies.
The Ministry of Justice is well placed to ensure that administrative justice is a key part of the wider justice reform agenda. We are committed to developing a strategic UK-wide approach. We are also committed to ensuring that the right decisions are made the first time. When disputes arise we will provide proportionate, timely and cost-effective solutions and drive ongoing improvements in the system. The MoJ already has strong links with the devolved Governments and other government departments and is already demonstrating the benefits of this. The department is currently considering priority areas and the resources needed to take them forward. At present there is a core team consisting of staff of a range of grades which has access to the wider justice policy group. The team can freely call on legal and analytical experts.
Other issues were raised. Any idea of a merger with the CJC has been ruled out by the judiciary. I mentioned in my initial intervention that we would establish a group of administrative justice experts and key stakeholders to draw on their views. As for the Public Accounts Committee inquiry, my honourable friend Jonathan Djanogly gave evidence yesterday. We will certainly take note of any recommendations that the committee makes. However, I do not think that it will remove the central piece of our analysis, which is that the AJTC is an advisory body that is no longer required in the field of administrative justice. Robust governance and oversight arrangements are now in place with regard to tribunals and the development of administrative justice policy is properly a function of government. A source of advice that is independent of government is not a prerequisite. Civil servants in the MoJ already offer Ministers balanced, objective, impartial advice, and they can draw on expert advice on administrative justice reform.
The Government will ensure that they exercise effective oversight of the administrative justice system in a way that best serves its users. They will develop, maintain and enhance a UK perspective of the system as well as enhancing their links with stakeholders. The Government will expand the channels by which best practice can be shared and collaborative working developed across the administrative justice system.
I have been asked to think again but I say to the House that we have had ample time to think about this. This House has already made one decision on this body. The amendments of my noble friend Lord Newton may be either helpful or ingenious, whichever way one likes to approach them. However, at this stage of a Bill, when the other place has had ample time and ample consideration of these matters, the Government are entitled to say to this advisory House that we have listened to this advice but that we want to abolish this body.
House of Lords: Reform
Lord Hunt of Kings Heath Excerpts(12 years, 11 months ago)
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Lord Hunt of Kings Heath
My Lords, the noble Lord said that we should all represent something. I suppose that I represent the long list of Lords Ministers who have dabbled in Lords reform, but without, alas, much success. We come to the end of this long but invigorating debate. I start by congratulating the noble Lord, Lord Strasburger, on his excellent maiden speech—it seems a long time ago. He said that in the few short weeks he had been in your Lordships’ House he has moved from a position of supporting a wholly elected House to endorsing a mostly elected House. I wonder where the noble Lord’s voyage of discovery will end. We await his next contribution to a debate on Lords reform with eager anticipation—he will have further opportunities.
There have been many reports on Lords reform, none better than the royal commission report chaired by the noble Lord, Lord Wakeham, who spoke so eloquently yesterday. The noble Lord, Lord Armstrong, and other noble Lords argued at some point for indirect elections. This is, of course, not a new idea. Viscount Bryce chaired a conference of Peers and MPs appointed by the Prime Minister in 1917 on the reform of the second Chamber, which made proposals for the indirect election of Members of the second Chamber by MPs in regional groupings. Alas, it went the way of many such proposals. I have much greater hopes for my noble friend Lord Richard.
Of course, this debate is rather more significant than many in recent years. We have a draft Bill, far-reaching proposals, pre-legislative scrutiny to come and a pathway towards the first elected Members setting foot in the second Chamber in 2015. How determined the Government are to meet that date is, perhaps, open to question. The noble Lord, Lord Strathclyde, the Leader of the House, yesterday reaffirmed the 2015 goal, yet in his highly entertaining interview in the Financial Times this weekend he seemed to have lost a little of his reforming zeal. Perhaps he was looking for St Augustine for inspiration. “Oh, Lord”, the Leader seemed to be saying, “deliver me an elected second Chamber, but not quite yet”. We will all be interested to hear whether the noble Lord, Lord McNally, takes a similar view. Indeed, does he think he can take his Members of Parliament with him, to say nothing of the noble Lords behind him?
The caution that the noble Lord, Lord Strathclyde, expressed over the weekend is, I think, entirely understandable. He must know that the Government are being disingenuous in presenting these proposals as a stand-alone measure with little consequence for our overall constitutional arrangements. He must know that, if enacted, the Bill would have a profound impact on Parliament and our democracy. I regret that, because the Government’s failure to admit this risks the whole reform process. I am a reformer, I support an elected House, I have always voted for it, but I want that reform to enhance our democracy. I do not want changes which threaten a fight between this House and the other place. I do not want changes that detract from the Lords’ role as a revising Chamber. Time and again it has been this House that has improved legislation, held Ministers properly to account and saved Governments from themselves—my own included. Would that the other place could say the same.
It is noticeable how many noble Lords in the past two days have commented on the performance of the Commons and their concern to strengthen Parliament as a whole. The noble Lord, Lord Elton, made a telling point about the overweening power of the Executive and of his fear that the Bill would extend that. Nowhere is that more to be seen than in paragraph 68 of the White Paper where a Prime Minister can at a whim throw a Member of the new second Chamber out of Parliament. That is the rub of it. As my noble friend Lord Whitty has said, the Government have simply not put the groundwork into the draft Bill. Yet they had plenty of time. The draft Bill was published on 17 May but the cross-party committee, chaired by Mr Clegg, has not met since 24 November. Almost six months has been wasted.
It is pretty arrogant on the part of the Deputy Prime Minister to think that he can waltz this reform through Parliament, as the noble Baroness, Lady Boothroyd, reminded us, on the whim of a hunch or a best guess and to do so without so much as a genuflection to the complexities with which governments and parliamentarians have wrestled for these past 100 years. Why that should be so has become clear during our debate. The Government seek to strive for a second Chamber that replicates most of what the House of Lords does now but with electoral legitimacy. We are told that the reformed House of Lords would have the same functions as the current House and that no change is envisaged in the fundamental relationship with the House of Commons, which would remain the primary House.
In Clause 2 of the draft Bill, we are pointed to the relationship between the two Houses. It is worth restating. It says that nothing in the Bill,
“affects the status of the House of Lords … the primacy of the House of Commons, or … the conventions governing the relationship between the two Houses”.
My noble friend described that as nonsense and I think that he was being kind. That is my response to the noble Lord, Lord True, who also criticised Clause 2. But does he not recognise that Clause 2 goes to the heart of the Bill? Nowhere is that more illustrated than in the conventions which govern the relationship of this House with the Commons.
The Cunningham committee was clear that, in a formal sense, the Lords has equal status with the Commons as a House of Parliament in initiating and passing Bills, subject to Commons financial privilege and the Parliament Acts, and equal status in approving delegated legislation. In reality, as Cunningham said, the formal position has come to be moderated by conventions reflecting the primacy of the Commons. The moment that elected Members walk into this Chamber, those conventions will evaporate.
Lord Tyler
My Lords, I do not know whether the noble Lord would like to comment on how precisely that clause differs from his recommendation in his own White Paper, which I quoted to your Lordships’ House earlier. It said:
“There is no reason why any further increase in the authority and effectiveness of the second chamber following elections should undermine the primacy of the House of Commons”.
Lord Hunt of Kings Heath
My Lords, I am always grateful to the noble Lord, Lord Tyler, for reminding the House of my heroic efforts on the cross-party group chaired by my right honourable friend Jack Straw, and very enjoyable it was too. I say two things to the noble Lord. First, we produced a White Paper for consultation. We did not produce a draft Bill. Secondly, I am not arguing about primacy. I am arguing about the issue of an elected House of Lords using the powers that it formally has within the context of primacy. I believe that even within the context of primacy, the clash between two elected Houses will bring profound constitutional changes.
Noble Lords could argue that we should not worry about that, which is a perfectly legitimate point to put across. But the one thing that I have learnt from my three years of dabbling in this subject is that unless a Government are explicit about the powers of an elected second Chamber, any attempt at reform will always be doomed to failure. I speak as someone who has always supported legitimate reform of your Lordships’ House. When elected Members enter this House, the conventions will evaporate because they are voluntary constraints on an unelected House in their relationship to the elected House. Once you have an elected House, what is the need for restraint?
The noble Lord, Lord Thomas of Gresford, was eloquent yesterday in favouring a strong second Chamber to stand up to the Executive. His noble friend Lord Ashdown reminded us that there are many examples around the world of bicameral systems with two elected bodies which manage to sort out their relationships. As the noble Lord, Lord Kakkar, remarked, that is because the relationship between those houses is set out in some form of written constitution that will usually provide for dispute resolution between the two houses. I acknowledge that the implications of a written constitution in the UK are profound. However, as my noble friend Lord Elder suggested, they have to be considered when introducing major constitutional change.
Lord Ashdown of Norton-sub-Hamdon
My Lords, I am listening carefully to the noble Lord. Since his own party proposed a fully elected Chamber in its manifesto, do we take it from his remarks that that can be done only in the context of a written constitution?
Lord Hunt of Kings Heath
I believe it to be inevitable that if we are to have two elected Chambers there has to be a codification of the respective powers of both Chambers and there has to be a way of resolving disputes. One cannot simply rely on the Parliament Acts as legislated for.
Noble Lords have raised a number of issues. I will not go into all of them, but I will just talk about the Bishops. I acknowledge the contribution of the right reverend Prelates to your Lordships’ House. I particularly welcome the speeches of the right reverend Prelates the Bishops of Leicester and Chichester. If we are to have a 20 per cent appointed House, I am sympathetic to spiritual leaders having a place, although I understand where my noble friend Lord Judd is coming from. We should not underestimate the role of the established church in the life of our nation. The noble Lord, Lord Goodhart, took a rather different view. I am sure that right reverend Prelates will take some comfort from him that once expelled they will none the less be invited back to say daily prayers.
I turn now to the transitional arrangements. We are offered three options, but what has happened to grandfathering? My clear understanding of the term, which comes from the world of professional regulation, particularly in the health service, is that experienced professionals in an unregulated profession go forward to a new professional register on the basis of experience. The term grandfathering is in the coalition agreement, which on my reckoning would rule out both options one and three. I would be grateful for the noble Lord’s response to that.
I would also like to ask the noble Lord, Lord McNally, about the Parliament Acts. My noble friend Lady Dean asked whether the Parliament Acts would be used to force legislation on Lords reform through your Lordships’ House. I would caution the Government on that. In a profound speech yesterday, my noble and learned friend Lord Morris of Aberavon put some very important questions to the noble Lord on the implications of the foxhunting case of Jackson v Attorney-General in 2006. We look forward to an answer on that.
In the end we come back to the question of powers and to the relationship between the two Houses. Unless some Peers think this is a smokescreen for refuseniks, let me pray in aid the words of my noble friends Lord Wills, Lord Whitty, Lord Hoyle, Lord Desai, Lord Davies of Stamford, Lord Davies of Oldham, Lord Brooke of Alverthorpe and Lady Quin—all passionate proponents of an elected House, but all saying that this Bill will not do and all bemused as to why the White Paper and draft Bill are so lacking in understanding and coherence on the central point of concern to your Lordships. In his opening remarks, the noble Lord, Lord Strathclyde, said that the present settlement will suffice for an elected House and that if in due course that turned out not to be the case, Parliament would be able to address it at that time. The noble Lord, Lord Marks, argued yesterday that primacy of the Commons would be unaffected because of the Parliament Acts and the fact that Governments stand or fall on maintaining the confidence of the Commons. I understand that argument. But for me it is not so much about primacy. Both noble Lords underestimate the assertiveness the House will show when unfettered by conventions and with legitimacy.
The noble Lord, Lord Forsyth, put it well when, based on the Scottish experience post the Scotland Act, he said that he doubted that statutes determined behaviour. He pointed to the example of how political reality and lines set in statute come into conflict and said that in the end political reality wins. We saw that in an extraordinary intervention from the noble Lord, Lord Ashdown. He suggested that an elected second Chamber could have prevented this country from going into an unwise war. I, too, am wary of such military interventions, but I am very wary indeed of giving what would be an effective veto to a second Chamber on matters of war and military engagement. The noble Lord, Lord Ashdown, has illustrated the likely ambition of an elected second Chamber, particularly if it claims greater legitimacy under a proportional system of election.
As for the reliance of the noble Lord, Lord Marks, on the Parliament Acts, I return to the intervention of the noble Lord, Lord Hennessy, who reminded us of the preamble to the Parliament Act 1911. It is well known that it promised a second Chamber constituted on a popular base. What is much less remarked upon is that the preamble makes it clear that the Parliament Act was designed solely to govern relationships between an elected Chamber and an unelected Chamber. It also spelled out the need for an elected House to have its powers limited and defined. So, 100 years ago, the architects of the Parliament Act understood that the powers of an elected Chamber would have to be set out in statute.
I am convinced that that is the case today. That is why the Bill is ill conceived.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, I had a boyhood dream that one day I would stand at a Dispatch Box as a government Minister facing Members of a hostile House and, an hour later, purely on the basis of my oratory and eloquence, I would have turned them round on to my side. I heard a voice say. “Dream on”. However, I shall have a go and, as your Lordships have been so disciplined, I see that I do not have only an hour but two-and-a-half hours to convince you. I can get my speaking notes out now. Some of us have dinner appointments so I will not use all of that time.
I congratulate my noble friend Lord Strasburger on his travels. He should not worry about the teasing of the noble Lord, Lord Hunt, that, since he entered the House, he has travelled a short distance in his opinions about its reform. Some noble Lords on that side have travelled miles and miles and miles.
The noble Lord, Lord Foulkes, now claims to know what I am thinking about him even without my saying a word. I hope he will be really insulted by that thought. However, even he confessed that he had once been in favour of reform, that he had come into the House and now was no longer in favour of reform. I think the technical term for that is “the foreman’s job at last” syndrome.
One thought about “Apocalypse Now” prompted me to share with you a short quote from a book that was given to me by the noble Lord, Lord Willoughby de Broke, who I do not think is in his seat. His grandfather was the leader of the “last-ditchers”, who tried to stop the 1911 Act. There are two quotes that are worth reading:
“And what was the final decision of the Constitutional High Court of Appeal, or rather of that proportion of its members who dared to deliver the verdict? The numbers were read out, but those who knew Willoughby and saw him as he entered the Chamber had no need to lengthen their suspense. All was settled and over. By seventeen votes the Parliament Bill had been accepted, and was now the law of the land”.
It was his thoughts about that that were more interesting:
“From the night of the 10th August 1911, when a great principle was sacrificed to expediency; when the right course was departed from for fear of the consequences, the Conservative Party received a shock from which it has never really recovered”.
I am merely pointing out that those speeches we have heard today that predict only the most terrible consequences for radical reform can be very, very wrong indeed. As historians such as the noble Lord, Lord Hennessy, continue to point out, the following century for the Conservative Party was one mainly spent in government. I also find it extraordinary to hear suggestions from the noble Lord, Lord Hunt, and others that the Deputy Prime Minister has been somehow high-handed in his approach to this legislation. No senior politician has given Parliament more chance to consider these measures, has shown more flexibility or offered more opportunity for genuine reflection.
I am not sure which parts of his own White Paper the noble Lord, Lord Hunt, tore up during that extraordinary speech. However, he says with pride that they never produced a draft Bill. So you never did—shame on you that you did not.
Lord Hunt of Kings Heath
My Lords, I am grateful for him raising this issue again. The purpose of producing a White Paper is to allow for debate and discussion and that is what we did. The Government would have done better to have had a widespread public consultation and debate before producing a draft Bill.
Lord McNally
This again from a Minister who produced a White Paper that produced no such debate. They sat on reform for a decade. When we talk about consistency, I was on the Cook-Maclennan committee prior to the 1997 election, where my party and the Labour Party both committed themselves to a raft of constitutional reform, including reform of the House of Lords. My party has been consistent for the last 14 years on our proposals. The Labour Party has performed somersault after somersault after somersault and there is no way they can get out of it—that is the record.
Crime: Homeowners’ Liability
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Lord McNally
What a good question. While a Bill is before the House, that can be used in evidence. As I said at the beginning, this is a report of advice given by the Surrey police which, on reflection, they would probably think is not proportionate. In a case in Florida recently someone wired up their window frames to the electricity mains and electrocuted a burglar. That is disproportionate. Wire mesh on the windows is not.
Lord Hunt of Kings Heath
My Lords, I am not surprised that the Minister did not answer the noble Lord’s question, because he gave the game away. He suggested that elected party political police commissioners will interfere in the day-to-day operations of the police force. That is why that Bill has to be defeated.
Lord McNally
I will not be drawn into this. My noble friend was suggesting that a little common sense in these matters would be beneficial to the police and the public in general.
Prisons: OPCAT
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Lord Hunt of Kings Heath
My Lords, perhaps we might return to the issue of resources. The noble Lord referred to the UKBA but would he acknowledge that, in the past few weeks, Ministers have referred to an increasing number of responsibilities being given to the UKBA at the same time as 5,000 staff are being taken off its head count? What we have not had is an explanation of how the UKBA is meant to manage these new responsibilities.
Lord McNally
Cuts are being made right across government. I will not go through the mantra of why that is so, as those on the noble Lord’s side know it only too well. However, all departments in which the cuts are being made are looking at how to maintain delivery under a much more difficult regime. That is one of the facts of life that we face as a country.
Public Bodies Bill [HL]
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Public Bodies Bill [HL]
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Lord Hunt of Kings Heath
My Lords, in moving Amendment 31 on behalf of my noble friend Lord Bach, I intend also to speak to other amendments in the first group.
The Government have, during the Recess, had a little time to reflect on the Bill. The Minister will know of the evidence given by the Lord Chief Justice to the Constitution Committee, which, as he knows, was highly critical of the Bill. We have also very recently received the report of the Commons Select Committee on Public Administration, chaired by a Conservative MP, Mr Bernard Jenkin, which was also highly critical of the Bill. As the Select Committee report states, the review leading up to the Bill,
“was poorly managed. There was no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow. It is important that the Government learn lessons from these mistakes as it has indicated that future reviews are likely to be run in broadly the same way. To ensure their effectiveness future reviews should not be conducted in a similar way”.
Amen to that. The Select Committee continues:
“The Bill giving the Government the power to bring about these changes was equally badly drafted. It is being significantly re-written by the House of Lords and we intend to issue a further detailed report on the Bill once the Lords have finished their scrutiny”.
It seems that, gradually, the Government are beginning to recognise that there is a need to make substantive changes to the Bill. I am grateful to the noble Lord, Lord Taylor, for his recent amendments, most of them made before the Recess, taking out most judicial organisations from Schedule 7. I think that that is a belated recognition of the Bill’s threats to judicial independence. I hope that the noble Lord will be able to do more in the coming weeks. I would like Schedule 7 to be removed in its entirety and the super-affirmative procedure to be used for every order pertaining to an organisation listed in the Bill.
I also hope that the noble Lord, and the noble Lord, Lord McNally, will listen sympathetically to the points made on this group of amendments. All of them, in one way or another, relate to the effective administration of justice. In moving Amendment 31, I shall speak also to my Amendments 32 and 45 and comment on Amendments 40 and 42.
Amendment 31 relates to the courts boards. The boards have not managed or administered the courts themselves but have given advice and made constructive recommendations to foster improvements in the administrative services provided. There is one courts board for each of the local management areas administered by area directors across England and Wales. Each courts board has members drawn from different communities and from a variety of backgrounds. The information from the Ministry of Justice states:
“Courts Boards were established because there was a fear that the voice of Magistrates would be lost within a unified HM Courts Service. These fears have dissipated because other structures—such as the Justices’ Issues Group and the Area Judicial Forums—are in place to ensure that Magistrates’ views are heard. There are also strong local relationships with Magistrates’ Benches Chairs”.
However, I have received a number of letters from chairs of local area courts boards expressing concerns. To summarise them, there are two. The first is that, at a time of a programme of court closures, no local independent review can take place. The chairs of the committees believe that the reduction in the number of local courts creates a greater need for mechanisms to keep in touch with communities and to identify local needs. The point is also made by the chairmen in the letters that I have received that boards can help to advise Her Majesty’s Courts Service on ways in which policies can be implemented at local level so as to help to ensure the most effective use of resources. I would be grateful for the response of the noble Lord, Lord McNally, to the concerns raised by the chairs of those committees.
Lord Hunt of Kings Heath
My Lords, I congratulate the noble Lord, Lord McNally, on that quick pass to the noble Lord, Lord Taylor, in relation to the memorandum. I can helpfully confirm that it was the practice of the previous Government to submit very lengthy memorandums to the Select Committee, and no doubt the Cabinet Office will be pleased to do so to the committee of the noble Lord, Lord Lester, in due course.
I agree with the noble Lord, Lord McNally, that it is a privilege to take part in a debate in which the noble and learned Lords, Lord Woolf and Lord Mackay of Clashfern, and the noble Lords, Lord Ramsbotham, Lord Lester and Lord Newton, have spoken. The noble Lord, Lord Lester, went to the heart of the matter when he talked about the architecture of the Bill. We are going through the schedules, debating each organisation, without knowing the final outcome of the architecture. It would be helpful if, at an early stage, the Government could set out some of their thinking about whether they are prepared to make changes to the architecture.
I have added my name to Amendment 175. I agree with the noble Lord, Lord Lester, and the noble and learned Lord, Lord Mackay, that it is very important. I certainly believe that it is consequential to Amendment 1 and would expect the House to accept it formally when we reach it. However, we have yet to hear whether the Government intend to seek to reverse it in the other place or to make substantial amendments to it. The noble Lord, Lord McNally, made some very promising comments in relation to the meeting that is to take place tomorrow between the noble Lord, Lord Lester, and the officials of the noble Lord, Lord Taylor. However, we will have to await the outcome of that. To a certain extent we are still working in the dark with regard to the final architecture. I believe that the architecture would be immeasurably improved, as the noble and learned Lord, Lord Woolf, has suggested, by removing Schedule 7 altogether. That would commend itself to many noble Lords in all parts of the House. I also believe that the super-affirmative procedure order should be used when it comes to the use of orders in the Bill. In the mean time, it is right to treat each body listed in the Bill on its merits. I was very happy with the response given by the noble Lord, Lord McNally, to my Amendments 31, 32 and 42. I shall certainly not seek to press Amendment 31 this afternoon.
I also understand what the noble Lord, Lord McNally, has said about the balance between the contribution of independent bodies and the role of departments and Ministers. There is a balance to be drawn. It is right that Ministers should be held to account for the major decisions that are made, albeit within individual government departments. Equally, I think we all agree that independent bodies have a role to play as well. It is a question of where you draw the line. My own party is not opposed to the abolition of a number of the bodies that are listed in this Bill. We support the general proposition that these kind of bodies need to be reviewed regularly and that no public body has a right to exist for ever. On the other hand, I listened with great interest to the powerful speech of the noble Lord, Lord Ramsbotham, on Her Majesty’s Inspectorate of Court Administration. He made a very good case. The noble Lord, Lord McNally, is right; this appeared in a Green Paper in 2009 as a candidate for abolition. None the less, when we come to Amendment 40, the House needs to listen very carefully to what the noble Lord, Lord Ramsbotham, said.
On the Public Guardian Board, I am very grateful to the noble Lord, Lord McNally, for his response and for his commitment to the Mental Capacity Act. He recognised the role that has been undertaken by Mrs Rosie Varley and her committee members. I take it from what he said that his department will wish to ensure that this work, albeit in a different form, will continue in the future.
Lord Ramsbotham
My Lords, perhaps I may speak briefly to Amendment 40. I agree with the noble Lord, Lord Newton, that it would be churlish at this stage to press for a vote. I am enormously grateful for the explanation given by the noble Lord, Lord McNally, which frankly I and many other Members of the House would have welcomed before this stage. If all that information was available, why could it not have been put in the Explanatory Notes and given to us in another form? We are going to have the same sort of debate when other issues, such as the Youth Justice Board, come up for discussion. If alternative plans have already been made it would be enormously helpful to know those in advance so that we can weigh them against the bald statement in the Bill.
I listened with great care to noble Lords’ contributions, particularly that of the noble and learned Lord, Lord Mackay, whose wisdom I respect hugely and whose advice I listen to. In that spirit, it would be sensible to withdraw Amendment 40 with, I hope, discussions to follow with the possibility of resuming it later. I have read the National Audit Office report—I worked for the National Audit Office in other respects. I am not sure that it completely fills the remit, although it fills some of it. Again, this is an issue it would be sensible to look at in detail before necessarily pressing it to a vote.
Lord Hunt of Kings Heath
We are, of course, on Amendment 31. I beg leave to withdraw the amendment.
Baroness Thornton
I realise that putting down an amendment to add something to this hotchpotch Bill may seem perverse in the extreme but assure the Committee that there is method in my madness. This is a probing amendment, designed to achieve what we seem to have signally failed to achieve so far with this Bill: that is, to gain some understanding of the rationale, the explanation or the philosophy that lies behind (the arm’s-length institutions that are included in the Bill and those that are not). I use the Food Standards Agency as an example of a body that is not in the Bill but about which reform is being proposed.
The Food Standards Agency, is, as it says on its website,
“an independent Government department set up by an Act of Parliament in 2000 to protect the public's health and consumer interests in relation to food”.
What has already been announced is that some of its functions will be taken away and given to Defra, and nutrition and dietary health will be moved back to the Department of Health. That is a very retrograde step in the view of many people concerned with diet and health. I think we can safely say that the Food Standards Agency was specifically formed after the BSE food scandals to try to re-establish public confidence in food advice by creating an arm’s-length body and an independent organisation. If the Government wish to change that fundamentally, they have to have some justification for addressing those issues specifically. Even if they wish to make the FSA a leaner and more cost-effective body, as they have done and to which the FSA has responded very well, cost-cutting is not the point here. It would seem that the FSA can be changed and its powers taken away without recourse to Parliament, without consultation and without this Bill.
Why is the FSA not included in this Bill? I was tempted to table an amendment for all the non-departmental government bodies that are not included in this Bill just to try to make sense of the Bill, and I have not ruled out that idea. For example, we will address later the other health bodies that are included in this Bill: the HFEA and the HTA. They were created with a similar motivation to that behind the Food Standards Agency—the need to have an arm’s-length body independent of government that could be trusted by the public to give good advice.
So far, the passage of this Bill has resembled a familiar song that we may all know, “The Hokey Cokey”. You put Channel 4 or Ofcom in the Bill, then you take them out of the Bill—or you think about it—and maybe shake them all about a bit. In the case of the recent government amendments on the Criminal Procedure Rule Committee, and a host of the other judicial-sounding bodies, they are out, but why? Perhaps we should rename this Bill the Hokey Cokey Bill.
Since tabling this amendment, the Public Administration Select Committee in another place has very obligingly published, Smaller Government: Shrinking the Quango State. I had intended to use the Treasury’s admirable publication, Reforming Arm's Length Bodies, and the Institute for Government’s document, Read Before Burning, as a theme for this discussion, because both contain a sensible description of the different kinds of arm’s-length bodies, what they do and how they might be reviewed and reformed. However, I think that they have been overtaken by the admirable report from the committee under Mr Bernard Jenkin MP about the dog’s breakfast that is not just this Bill but the whole process of reforming arm’s-length bodies.
To go back to basics, the coalition agreement merely said:
“We will reduce the number and cost of quangos”.
I have to say that my own Government’s policy was along the same lines. The Reforming Arm's Length Bodies document outlined how to do this in an orderly fashion over a period of time and save money in the course of doing that. So the Government started a cost-reduction exercise. Shortly after the election, they undertook to review public bodies sponsored by departments, including executive agencies. The stated aim of the review was primarily to increase the accountability of government. To achieve this, the review attempted to indentify functions that could be transferred from public bodies to central departments. The Government argued that Ministers could then be directly responsible for those activities and could be held to account by Parliament for the discharge of those activities. Indeed, Francis Maude, the Minister in the Cabinet Office—I particularly like this bit—said:
“I have led an intensive review into public bodies, subjecting each to four tests. The first test was existential and asked, does the body need to exist and do its functions need to be carried out at all?”.—[Official Report, Commons, 14/10/10; col. 505.]
I think that existential is a really good word to use in the process of these discussions. Those tests were whether,
“a precise technical operation needs to be performed to fulfil a ministerial mandate”.
The second area was,
“where it may be right to delegate power to an independent body … when there is a need for politically impartial decisions”.
The third area was,
“where there is likely to be a need for independent action … when facts need to be transparently determined”.
The fourth area, of course, was the existential test.
Added to that, we have another test, which appeared slightly late in the day: transparency. According to the report:
“The Ministry of Justice has retained bodies on the grounds of ‘transparency’”,
so we know now that we have at least four or five tests that the Government have said need to be applied to arm’s-length bodies.
The report goes on to say:
“It is also unclear whether all three of the tests the Government set were necessary in determining whether a function should remain at arm's length from Government”.
The report adds that the Institute for Government,
“during its research for its report, Read Before Burning, conducted its own evaluation of public bodies and the level of independence they need to discharge their functions properly. Their evidence states that: The key issue for deciding to put a function at arm's length is the degree of independence from day-to-day ministerial intervention needed to enable the body to command public confidence that it can perform its function in the public interest”.
That test applies completely to the FSA, and indeed to several bodies that are included in this Bill. We therefore have the importance of the independence test.
The additional test that is brought to bear is that of value for money. As well as the four or five tests that I have already outlined, the Select Committee says that the Government,
“are silent on a range of other issues, such as the implication of changes on the wider public policy framework, value for money, or current performance of organisations”.
The report concludes:
“The Government did not consult properly on these proposals. When undertaking such a fundamental review of the machinery of government it is desirable and sensible to do so”.
Our own Merits Committee did, as I recall, agree with that.
The report goes on to say that the Government do not apply the tests consistently and have declined, in some cases,
“to provide an explanation for why it intends to retain a body”.
It seems to me that asking for an explanation of why the Food Standards Agency is not included in this Bill is exactly the point of this Select Committee report. The Government have been inconsistent about what is in the Bill, what is out of the Bill, and what tests should be applied to the bodies that they intend to keep and to reform. The conclusion of this very critical report says:
“We are not convinced that the Government has applied its tests consistently. Neither can we find any evidence to suggest that it took any steps to ensure a uniform approach was taken. We recommend that the Cabinet Office publish details on how the tests have been applied to all public bodies that are still under review, so we can ensure that in future these tests are applied consistently.
The lack of consultation and inconsistent application of the tests, which are themselves confusing”—
I would agree with that—
“have led us to conclude that there was no coherent and consistent process for reviewing public bodies”.
I return to the Food Standards Agency, which I would not wish to include in this Bill. Whether or not I proceed to add a whole host of other bodies into the Bill in a desperate attempt to understand the rationale is dependent on the Minister’s explanation. I would really appreciate him addressing the very important issues that are raised in this report—and this is the first opportunity we have had to say this. I would like an explanation of the broader implications that this report has for the Bill. Obviously, it involves not just the Food Standards Agency but many, many bodies.
Finally, we on these Benches are not opposed to modernising arm’s-length bodies. Indeed, in March last year we published a document about the reform of arm’s-length bodies that said that we intended to reduce their number by 123 and to save money by doing so. However, we intended to do it in an orderly fashion with consistent and consistently applied criteria. This Government have not done that, and we need an explanation of what they intend to do next. I beg to move.
Lord Hunt of Kings Heath
My Lords, I am grateful to my noble friend Lady Thornton for raising three very substantive matters with this amendment: first, what is to happen to the FSA; secondly, the process by which the Government have undertaken this review; and, thirdly—coming back to the debate on the first group of amendments—the architecture of the Bill.
I was the Department of Health Minister who, with the noble Baroness, Lady Hayman, as the Defra Minister, took through the legislation that created the Food Standards Agency. The noble Lord, Lord Newton, and I are singing off the same hymn sheet here. I remind the noble Lord that the reason for this was that there was a great deal of public distrust, it would be fair to say, arising out of the BSE issue along with some concern about the advice that the relevant government departments had been giving to the public. Therefore, the decision was taken to create an independent agency sponsored not by Defra but by the Department of Health.
Overall, that agency has worked very well indeed. I pay particular tribute to the noble Lord, Lord Krebs, and to Mr Geoffrey Podger, the first chair and chief executive of the FSA—and, indeed, to their successors—for doing what I think has been an outstanding job. It has certainly advanced the credibility of the advice that that body gives to the public and, importantly, has also enhanced the credibility of the British food industry. I therefore have some reservations about the changes that are now being proposed to the FSA. I understand that there will be a transfer of some of its responsibilities to the Department of Health. I must declare my interests in relation to the health service and to public health as they are recorded in the Register. The FSA has a tremendous reputation and, in the Government’s place, I would hesitate before making substantive changes.
However, the second point raised by my noble friend relates to the rationale for the Government’s approach both to those bodies that are contained in the Bill and those that are not. It is still not clear to many noble Lords what the rationale is. This is a good opportunity for the Minister, who, as noble Lords have already remarked, has been very helpful to the House, to explain some more about the rationale for the bodies contained in the Bill and those that are not, even where those that are not are actually to have substantive changes made to them.
The noble Lord, Lord Taylor, will be a little tired of having Select Committee reports quoted back to him because it would be fair to say that all of the Select Committees that have so far looked at the Bill and at the review undertaken by the Government have been not exactly complimentary. The noble Lord, Lord Taylor, has to answer the central charge of the Public Administration Select Committee, chaired by Mr Bernard Jenkin, which said:
“This review was poorly managed … no meaningful consultation, the tests the review used were not clearly defined and the Cabinet Office failed to establish a proper procedure for departments to follow”.
Apart from rejecting the Select Committee’s report out of hand, the Government have been rather silent in responding so far. We are entitled to some comment on the review process itself.
My noble friend Lady Thornton referred to the Bill as being the “Hokey Cokey Bill”. I think it is more Gilbertian myself. The noble Lord, Lord Taylor has a little list. In fact it is a very big list that is gradually becoming smaller. I note that the Jonathan Miller production of “The Mikado” is back at the Coliseum yet again. The noble Lord might take care and reflect by going to see it.
It brings us back to the architecture of the Bill. In an earlier debate the noble Lord, Lord Lester, raised the question of Amendment 175, which is consequential on the paving Amendment 1 that the House passed. That is a very important amendment because it sets very clearly the restrictions on ministerial powers to be used in the Act. If, as a result of the discussions that I know that his officials are having with noble Lord, Lord Lester, tomorrow and other discussions, the Government were able to accept the principle of Amendment 175, while making it clear that they do not intend to reverse this in the other place, then we would make more progress.
There are other substantive issues in relation to the architecture. I have already mentioned the use of the supra-affirmative procedure and the deletion of Schedule 7. Some reassurance that public consultation will take place when it is proposed to deal with any of the bodies in this order would go some considerable way to reassuring noble Lords. In the absence of the House understanding what changes the Government are prepared to make to the architecture, we go inevitably through these bodies one by one and, in a sense, in a vacuum—a point made earlier by the noble and learned Lord, Lord Mackay of Clashfern. We are due a Committee day next week when, no doubt, we will hear when further Committee days are to take place. I hope that in a fairly short time the Government will be able to make a little clearer their sense of where they are on the Bill and whether they are prepared to make the kind of changes to its construct that would reassure noble Lords considerably.
Lord Taylor of Holbeach
My Lords, I thank the noble Baroness, Lady Thornton, for tabling this amendment. I know that she has done so with good intentions but we have enough on our plate without adding an extra dish to the menu. I thank the noble Lord, Lord Hunt of Kings Heath, for his recommendation to see “The Mikado”. I saw it when it was previously on at the Coliseum. In fact, I have tickets. Should time allow, I hope to see it in revival.
As your Lordships are aware, the Public Bodies Bill exists to take forward the review of public bodies undertaken across the Government in 2010 to enable changes to be made. I acknowledge the report of the Select Committee produced by another place and no doubt we will be replying to that report in due course. However tempting it might be, I do not want to use this debate as an opportunity for expanding on arguments that the Government will bring forward in their discussions with that committee. We are negotiating with the opposition Front Bench and the Select Committees of your Lordships’ House to try to improve the Bill. It is interesting that, as the noble Baroness said, there is a determination across the House to ensure that we have a public bodies sector that is fit for purpose.
Perhaps I may address the changes that have occurred within the Food Standards Agency in the context of the recent history of the department. The previous Government announced in their public health White Paper, published shortly before the election, that they would bring dietary health and nutrition away from the FSA into the Department of Health. That is the background against which, under the new Government on 20 July 2010, the Department of Health announced its decision to retain the Food Standards Agency as an independent regulator, while transferring some of its functions to the Department of Health and Defra. I shall shortly put those into the context of the size of the organisation. These changes are non-statutory in nature and do not therefore require the use of the Public Bodies Bill, or any another legislative vehicle, to bring them into effect.
The proposed changes to the role of the FSA are designed to contribute to the Government’s objectives to improve efficiency and are paramount to the key priority of improving the health of the nation by creating a public health service. To achieve this coherence, some policy-based functions are to be brought in-house to give a more co-ordinated approach on health and food issues. These changes affect approximately 5 per cent of the 2,000 staff employed by the Food Standards Agency. About 25 labelling policy posts will move to Defra and 85 nutrition policy posts will move to the Department of Health. These proposed changes reflect the Department of Health’s desire to bring together all the policy levers to enable it to deliver a coherent public health strategy. This will allow the FSA to focus on its key core remit of food safety underpinned by scientific expertise. It has been mentioned that the noble Lord, Lord Krebs, in establishing the Food Standards Agency, provided a foundation of science which has greatly benefited that organisation. The proposed changes will enable government food policy to be communicated and delivered in a coherent and consistent manner. The Department of Health, Defra and the FSA—we must not forget that the Food Standards Agency is classified as a government department—will work together to ensure that this structure protects consumer interests, reinforces efforts to improve the public’s health and supports a competitive food industry.
I acknowledge that the last thing the noble Baroness seeks is the extinction of the Food Standards Agency. On the basis of the assurances I have given, I hope that she will feel able to withdraw the amendment.