Public Bodies Bill [HL]

Lord Goodhart Excerpts

Wednesday 9th March 2011 Lords Chamber

[Lord Maclennan of Rogart]

My Lords, I rise simply to make it clear to the House that, at this hour of the night, my noble friend is not alone. His concern for promoting values in this Bill has been manifest from the beginning, and he enjoys considerable support from his coalition colleagues.

[Lord Goodhart]

My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.

It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.

That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.

[Lord Hunt of Kings Heath]

My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.

In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies—it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.

We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.

Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the Minister’s Amendment 114 seeks to ensure that the public would always be consulted if the Minister proposed to make an order under Clauses 1 to 6. I accept that the Minister’s amendment is welcome and extensive. I also accept that in new subsection (1)(g) of the proposed new clause the Minister is given power to consult the public, since it states,

“such other persons as the Minister considers appropriate”.

That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.

I also believe—this relates to my Amendments 118A and 118B—that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord’s amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government’s proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,

“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the ‘veto’)”.

The committee reminds us that, under the 2006 Act,

“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.

The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.

I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him—it would be interesting to have further discussions between now and Report—is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.

My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord’s amendment to make it clear to an individual organisation that, unless a Government deal with a matter within a certain time, it falls. However, there is a case for the Government being able to undertake a regular review. It might be that we should keep the provisions of this Bill but limit the time under which an individual organisation can be covered by it.

[Lord Goodhart]

I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.

My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment—Amendment 126—to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?

Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:

“If the draft of an instrument containing an order under this Act … would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument”.

Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.

--- Later in debate ---

[Lord Norton of Louth]

My Lords, I rise briefly to welcome the decision of the Government not to proceed with Clause 11 and Schedule 7 to the Bill. As I said on Second Reading, the prime mischief of the Bill is to be found in Clause 11 and Schedule 7. It is not the only mischief—hence several of the other amendments under discussion—but it is the prime mischief. As the Constitution Committee emphasised, the provision was objectionable on constitutional grounds. The concerns expressed in the report recurred on Second Reading and have been pursued since. There were problems with the inclusion of quasi-judicial bodies, as explained in a powerful speech by the noble and learned Lord, Lord Woolf, and the Government came to recognise the force of that argument.

However, even with the removal of the bodies with a quasi-judicial role, the basic objection to the provision remained. I saw no clear rationale for placing statutory public bodies in a living uncertainty. As I said in November, this was a lazy way of legislating: effectively parking certain bodies in Schedule 7 until such time as the Government decided what to do with them, whereupon they would place them by order in another schedule. I am very pleased that the Government have now recognised the force of the argument against Clause 11. That argument has been widely accepted in the House.

As I said on Second Reading, there is an alternative to the clause. The Government plan a triennial review of non-departmental public bodies. Why should we not have a public bodies Bill in each Parliament, thereby enabling concrete proposals to be put before Parliament and given proper scrutiny by both Houses? That is the way forward. I am delighted that my noble friend Lord Taylor of Holbeach has added his name to oppose the Motion that Clause 11 stand part of the Bill, and I pay tribute to the way in which he has listened to Members in all parts of the House and taken on board the points made.

[Lord Goodhart]

My Lords, I support what my noble friend Lord Norton said. The independence of the judiciary is a central and essential part of the constitution. In particular, the provision that would have enabled the Government to get rid of the Judicial Appointments Commission was plainly unconstitutional and could only have been dealt with by primary legislation.

[Baroness Hayter of Kentish Town]

My Lords, first, I declare an interest as chair of the Legal Services Consumer Panel, which is part of the Legal Services Board and thus funded indirectly by lawyers, although technically appointed by the Secretary of State. Although we are about to see the LSB dropped from the Bill, I will raise some issues. It will become clear as I speak why I need to do that.

The UK has a long and proud record of an independent Bar, and of independent solicitors. This is important for its own sake, but also because the Bar is the pool from which our judiciary is drawn. They are thus already known for their robustness and independence from political influence by the time they don their judicial wigs. Even before that, lawyers can freely represent clients who are prosecuted by the state or even represent clients taking action against the state safe in the knowledge that their licence and freedom to practise cannot be removed by the state, as it was given by the Bar Council or the Law Society, over which the state has no control.

It is that security that enables lawyers to feel quite free to represent clients without looking over their shoulder to see whether they will be jeopardising their future livelihood. It is very hard to emphasise how important this tradition has been both here and abroad. There were therefore concerns when it was decided that the role of the Bar Council and the Law Society in authorising and disciplining lawyers was to be overseen, and indeed authorised, by the Legal Services Board, which was set up by statute with its members appointed by an elected politician, or at least a member of the legislature—the Secretary of State.

Although they accepted that the era of full self-regulation was past and that some independent membership of relevant boards was required, lawyers here and abroad were wary of the Government taking over ultimate responsibility for effectively granting or removing the licence to practise, with the implication of the regulation of lawyers coming under government control. Nevertheless, when the LSB was set up, albeit funded by lawyers, there were many—I am sure sincere—assurances as to the independence of the Legal Services Board from political interference. Lawyers both here and abroad—because of course many are trained here—were assured that government Ministers would not remove a lawyer who could upset or challenge them. It is very much for that reason that I am delighted about the loss of Clause 11 and Schedule 7, which of course list the LSB. However, in the mean time, another part of government has taken a quite serious swipe at the LSB, as well as my own Legal Services Consumer Panel, and at the new Legal Services Ombudsman set up under the same 2007 Act.

On 8 October last year, just days before the 14 October announcement of the bodies to be abolished or amended by this Bill, all three bodies received letters from the Ministry of Justice saying that the Secretary of State had received a letter from Francis Maude, the Minister for the Cabinet Office, telling us that our three independent, stand-alone websites “will have to be closed” and that we would need to use “an approved government website”—in other words, a .gov.uk domain. It will not come as any surprise that all three bodies protested most strongly that, being independent of government, we would not be treated in that way. Elizabeth France, the chair of the Legal Ombudsman, wrote to the Minister of Justice on 25 October saying that there was no justification for an ombudsman, set up to demonstrate independence from government regulation and the profession and spending no government money, having a .gov address. As she stressed, other ombudsmen, whether it be the Local Government Ombudsman, the Pensions Ombudsman or the Financial Ombudsman, all have .org.uk URLs, signifying their independence from the sectors on which they adjudicate and their independence from government. Our three websites cost nothing to the public purse as they are funded by lawyers, so there is no public expenditure rationale for this. However, it raises serious constitutional issues about the independence of the governance of those bodies—something to which the Government seem a little deaf.

On 28 February, we had confirmation of the very welcome decision to drop Clause 11 and Schedule 7, as reported at col. 799 of Hansard, and indeed had the Minister’s declaration that:

“The Government absolutely recognise that some public functions need to be carried out independently of Ministers”.—[Official Report, 28/2/11; col. 798.]

Just days after that, on 2 March, guess what? We received another e-mail from the Ministry of Justice telling us, “You will need to close your website by 31 March 2011”. To my knowledge there is no legal basis for such diktat from the Cabinet Office and there is, of course, no saving of public money.