Public Bodies Bill [HL]

Lord Judd Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Judd]

My Lords, if there were no other reason for the Government to think again, the observations of the Select Committee on the Constitution and the observation of the noble and learned Lord, Lord Woolf, in our deliberations today are reason enough. Henry VIII clauses do not make good democracy and the independence of the judiciary is the cornerstone of our system of law and justice.

Of course we need to keep the number of quangos and public bodies and their effectiveness, cost-effectiveness and purpose under review. If they are no longer relevant, if they have fulfilled their purpose, they should be wound up. However, there are real and widespread concerns at the sweeping, precipitate and ill-considered nature of the Government’s proposals. For a Government committed to empowering the people, there has been a quite extraordinary lack of consultation.

There are puzzling contradictions in the Government’s overall position. The Government keep emphasising that they want to improve the quality of democracy and to reduce the size of what they like to call the state. They say that they want to bring power and decision-making closer to the people. How such concentration of wide-ranging powers in the hands of Ministers will help to achieve those objectives is to me—and, I think, to most people—a total mystery.

Another disturbing contradiction is how, if it is to be argued that Ministers and the Government will be made more democratically accountable to Parliament, that can be reconciled with the proposals that will come before the House next week that seek to reduce the number of MPs and introduce what, in many cases, will be larger, less-community-based constituencies, in which MPs will inevitably become less accessible. In many ways, MPs are already overloaded. How will those new sinister proposals help them better to fulfil their responsibilities of scrutiny and holding the Executive to account?

I tremble at the danger that years of experience and dedicated service that have provided profoundly significant contributions to the quality of our society, ranging from our system of law to our heritage and environment, will be all too rapidly trashed and thrown away as centralised bureaucracy or crude profit making take over. The Forestry Commission provides an outstanding example of such service. At this point, I unreservedly pay a warm tribute to my noble friend Lord Clark of Windermere for the outstanding contribution that he made as chairman of the Forestry Commission. Those of us who know him as a friend in the county of Cumbria appreciate that few people understand the countryside better than he does.

The Forestry Commission has learnt from 90 years of experience and has become a model example, with highly motivated staff at all levels. The commission is dedicated to the nation’s needs—not least to combating climate change—to biodiversity and to the quality of our scenic heritage as well as to the spiritual uplift and public enjoyment that forests can provide for the nation. The commission’s imaginative work on public accessibility to woodland and to adventurous experiences has been outstanding. Why put a question mark over all that? Have the Government looked at what has happened in New Zealand, Papua New Guinea, Indonesia, Nepal or indeed—closer to home—Sweden?

I have the honour to be president of the Friends of the Lake District and vice-president of the Campaign for National Parks, and I know that the Bill has considerable implications for the national parks. If I dwell for a moment on the national parks, I do so because the concerns that arise in that context have direct relevance to many other bodies that are covered by the Bill. It has been suggested that the national park authorities have been included in the Bill as a precaution, in case the imminent review of national park authority governance results in proposed changes that might require a revision of existing legislation. However, if that is true, it is surely a highly questionable way of developing legislation to include powers that may not be necessary or appropriate and that have not been subject to consultation with the affected bodies.

Clause 3 will give the Minister the power to make provision by order to

“modify the constitutional arrangements of a body or office specified in Schedule 3”,

which includes national park authorities and the Broads Authority. The term “constitutional arrangements” refers to a wide range of arrangements relating to the structure, governance and functions of such bodies. The provision appears to allow Ministers the power to change many aspects of the national park authorities’ work, including their name, their accountability to Ministers, their powers to employ staff, the number of their members, the procedures for members’ appointments and the appointment of a chair. For example, rather than being elected by the national park authority members, the chair could be required to undergo a pre-appointment hearing before taking up the post.

Clause 5 will give the Minister the power to make provision by order to,

“modify the functions of a body, or the holder of an office, specified in Schedule 5”,

which includes the national park authorities and the Broads Authority. The clause will also give the Minister the power to,

“transfer a function of such a person to an eligible person”.

An “eligible person” is defined as,

“a Minister, … any other person exercising public functions, … a company limited by guarantee, … a community interest company, or … a body of trustees”.

National park authority functions include preparing and publishing a national park management plan. In their role as local planning authorities, national park authorities determine planning applications and prepare a suite of planning policies to cover each park. So this clause would appear to allow Ministers to transfer the national park authority’s planning function to a third party, including the Ministers themselves.

Clause 6 gives a Minister the power to make provision by order to authorise the national park authority or Broads Authority to dedicate some or all of its functions to an eligible person. These are the only bodies listed in Schedule 6; while not explicitly relating to an authority’s planning function, it is hard to imagine what else this could be about. National park authorities may choose to enter into agency agreements with other authorities on the delivery of their development control function. This ensures that the authority remains ultimately responsible for the delivery of the function and is able to monitor and when necessary amend arrangements so that they do not prejudice the delivery of park purposes. Full delegation would arguably not give the same ability meaningfully to monitor arrangements, as it would delegate responsibility for them to another body.

Clause 7 provides that an order under the above clauses may include consequential or supplementary provisions—for example, the funding arrangements of the transferring authority. Presumably that would mean that when a national park authority transferred some of its functions to an eligible person, the appropriate funding would be transferred along with it.

It is frankly unconvincing that national park authorities and the Broads Authority have been included in the Bill and that Ministers are apparently seeking to give themselves power to exercise control over almost every aspect of national park authority operation and governance. As I have said, that seems to conflict with the rationale being deployed elsewhere in government to devolve as much decision-making as possible down to the local level and not to constrain local flexibility and choice. It seems inevitable that increasing the scope of government involvement and scrutiny to the level proposed would undermine the national park authorities’ independence. That appears in stark contrast to the position that the Conservative Government, to their credit, took when the Environment Bill passed through Parliament in the 1990s, when they demonstrated a strong commitment to establish independent authorities for the national parks.

The current model of national park authorities originates from an independent review in 1991, the Edwards review, whose priority was to establish bodies that could effectively tackle the challenges that face the parks, meeting the nation’s aspirations for them while being accountable and sensitive to the legitimate needs of park communities. The review recommended independent national park authorities, citing the principal advantages as including clarity of vision and self-confidence, which would allow the authorities to set their own agenda and pursue it resolutely. The Government accepted those recommendations and agreed that independent authorities would provide those benefits—and that was a Conservative Government. By including national park authorities and the Broads Authority in the Bill, the Government seem to be taking a significant backwards step, which would undermine the authorities’ independence and their ability to deliver their functions on behalf of the nation. They would constantly be looking over their shoulder and become risk averse, as any faltering innovation could be seized on by Ministers as justification for functions to be transferred or delegated to another local authority, charity or public body.

Altogether, this is not a reassuring future for those charged with protecting and enhancing one of the most precious assets of our civilised UK. My noble friend is right to insist on his amendment. Much of what I have said about the parks applies very directly to other parties.