Public Bodies Bill [HL]

Lord Lester of Herne Hill Excerpts

Tuesday 9th November 2010 Lords Chamber

[Lord Lester of Herne Hill]

The noble Baroness was talking about the Select Committee and the kinds of matters that it would deal with but, as she spoke, the list became quite long. Does she think that in three months it would be possible to look, for example, at all the bodies listed in Schedule 7? I could understand it if she were saying, “Keep it narrow. Keep to procedure and safeguards”, but is she considering something wider than that?

[Baroness Royall of Blaisdon]

My Lords, I think that it should be a fairly narrow committee and that it should meet regularly. I do not think that it would be appropriate or possible, for example, to invite people to give evidence in relation to every single body mentioned in Schedule 7, but it would be appropriate for the committee as a whole to consider the entire schedule. It is a vast schedule listing a jumble of different organisations and I think that some order needs to be put into it. The Select Committee would provide an opportunity to take evidence from some of the most important quangos, if I may put it that way, included in Schedule 7.

I urge the Government to heed the wise words that we are about to hear in the debate. I also urge them to take full account of the genuine and extensive concerns of this House’s Select Committee on the Constitution and to take the opportunity to improve the Bill, as is sorely needed.

--- Later in debate ---

[Lord Lester of Herne Hill]

My Lords, I am grateful to Ministers for having met us on several occasions to listen to our concerns and to indicate their intention of improving the Bill by introducing essential safeguards and proper parliamentary procedures.

Everyone agrees with the objectives declared in Clause 8 of,

“achieving increased efficiency, effectiveness and economy in the exercise of public functions”,

whether those functions are performed by public bodies or government departments. Everyone agrees on the need for,

“securing appropriate accountability to Ministers”,

by the various public bodies within the Bill’s reach. What causes concern about the Bill is not its policy but, as the noble and learned Lords, Lord Woolf and Lord Mayhew of Twysden, and the noble Lord, Lord Deben, have said, the means chosen to give effect to the Bill’s legitimate aims. Legitimate ends do not justify unconstitutional or disproportionate means, especially where they erode Ministers’ accountability to Parliament and put at risk aspects of the rule of law and fundamental rights and freedoms, whereas the Bill as it stands—I emphasise “as it stands”—contains inadequate safeguards against the misuse of Ministers’ delegated powers.

The Constitution Committee has explained some of the main objections to the Bill as it stands and I agree with the analysis and conclusions of that powerful committee. The modern test of Henry VIII clauses, reproduced in the Constitution Committee’s report at paragraph 5, is whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards. For the reasons given by the Constitution Committee, the Bill as it stands fails both tests—again I stress “as it stands”.

The safeguards in Clause 8(2) operate “if the Minister considers” the matters in Clause 8(2)(a) and (b). However, the Minister is not required to act with a sense of proportion and the exercise of discretion under Clause 8 as it stands would not be readily susceptible to effective judicial review. Whenever I see the phrase, “if the Minister considers”, I am reminded of Lord Atkin’s comment about the language of Humpty Dumpty.

The useful Library notes on the Bill record the reaction of the Institute for Government, now led by the noble Lord, Lord Adonis, as giving a cautious welcome to the Bill but emphasising, in the words of Sir Ian Magee, that the Government have to,

“develop more robust criteria going forward with a better framework, so that each quango’s role, purpose, funding and accountability are clear to all who come in contact with them”.

He continues by saying that,

“there needs to be a robust business case behind each of the decisions to ensure that money won’t be wasted through the merging process, and to ensure key skills are not lost, if the function is to carry on elsewhere”.

That is plain commonsense, but the Bill’s design and the process envisaged for its implementation do not yet ensure that this will be put into practice.

In his Statement in the Commons, the right honourable Francis Maude, the Minister in charge of the Bill, explained that:

“A body should only exist as a quango if it meets one of three tests, to which my review has subjected all existing bodies. These tests are:

Does it perform a technical function?

Do its activities require political impartiality?

Does it need to act independently to establish facts?”.

He concluded:

“This is a work in progress”.—[Official Report, Commons, 14/10/10; col. 27WS.]

Those tests are not included in the Bill, are not mentioned in the Explanatory Notes and there has been no taxonomy of the bodies affected by the Bill—that is, there has been no proper analysis or classification of their similarities and differences. Instead, the Bill seeks sweepingly broad executive powers and the inclusion of a long list of all the quangos which might become subject to ministerial interference, control or abolition. Schedule 7 lumps together bodies both which do and do not satisfy the Government’s three tests.

Yet it is a principle of the common law that like cases should be treated alike and unlike cases should be treated differently, but that basic constitutional principle has not been followed in relation to Schedule 7 or the Bill as a whole. For example, the Judicial Appointments Commission, the Children’s Commissioner, the Legal Services Commission, Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Equality and Human Rights Commission are included in the schedule, even though all of them perform technical functions, their activities require political impartiality and they need to act independently to establish facts.

It is interesting to recall that those not in the schedule—thank heaven—include Her Majesty’s courts and the Parliamentary Commissioner for Administration. Presumably someone in the Cabinet Office recognised that it would be even more outrageous to include those but, as a matter of principle, one wonders why the Parliamentary Ombudsman is not there whereas the Local Government Ombudsman is. As many have said already, their inclusion in Schedule 7 would weaken their independence and the willingness of qualified people of independence and integrity to serve on them as they would be vulnerable to ministerial interference if they acted in a way causing displeasure to Ministers or civil servants. For the reasons given by the noble and learned Lord, Lord Woolf, the Bill as it stands weakens the rule of law and the independence, indirectly, of the judiciary.

The Equality and Human Rights Commission has been singled out for different forms of ministerial interference in a big way. The power to modify constitutional arrangements under Clause 3, to modify funding arrangements under Clause 4 and to modify or transfer functions under Clause 5 may all be applied to that commission. I have a particular interest in those provisions because I helped Roy Jenkins to create equality agencies in the 1970s and worked closely with the previous Government to include in the Equality Act 2006 safeguards to prevent unnecessary ministerial interference with the commission’s independence. The Equality Act 2010 gave the new commission a more extensive remit and greater enforcement powers than its predecessors. In order to be able to challenge the actions of Government, as well as those of the private sector, that commission needs to be independent and the UN Paris Principles require that. The 2006 Act puts the Minister under an obligation to have regard to the desirability of ensuring that it is under as few constraints as reasonably possible in determining its activities, timetables and priorities.

The Joint Committee on Human Rights, on which I serve, has commented on this and I will not detain your Lordships by repeating what it has said about it. However, there is a widespread view that the commission has been poorly led and managed and that Ministers and civil servants in the previous Government are responsible for having permitted that. What are needed are not legislative constraints included in subordinate legislation but the appointment of a well qualified chief executive, new commissioners and at last some administrative controls now lacking to ensure value for money and the effective discharge of the commission’s important functions. That can be done without amending legislation. I hope that it will be done and be done soon.

Instead, what the Bill does is to include powers to enable Ministers, if they wished, to hobble the commission and to jeopardise its independence. That would be a retrograde step—I am sure it will be disclaimed—but it would if done be deplored here and abroad. The Minister has stated in his view that the provisions in the Bill are compatible with the European Convention on Human Rights and the Explanatory Notes state:

“The Government does not consider that the Bill directly engages any convention rights”.

That is literally true. However, the Bill does undoubtedly indirectly engage convention rights, as I am sure the Minister will accept. The public bodies within the Bill’s reach include many such as the EHRC whose functions secure and promote the UK’s obligations under the convention and the other international human rights covenants and conventions by which the UK is bound. Those bodies are listed quite indiscriminately in Schedule 7 as bodies and offices which may be transferred to other schedules, including some performing judicial or quasi-judicial functions and upholding the rule of law in ways that are, and can be seen to be, independent and impartial. The Joint Committee on Human Rights has asked the Government for a full human rights memorandum and I have raised this with the Government. We need it by 23 November when we will meet, and I am sure, give some kind of report.

Finally, it is essential for the necessary safeguards to be included in the Bill at the earliest opportunity and avoiding any unnecessary delay. That should enable the Bill to complete its passage through this House with all deliberate speed. I would favour a reference to a Select Committee if, and only if, its terms of reference were strictly confined to process and safeguards, and strictly time-limited to report not later than, as my noble friend has indicated in his Motion, 28 February 2011. I say not later than and I would hope earlier than that, and only if the Minister were unable at the conclusion of the debate to give the necessary assurances as to how he would achieve the same objective at the first meeting of the Committee of the Whole House by tabling a series of amendments that would do that job if necessary and do it more quickly. We should try to avoid what is necessarily happening in this debate, which is that special interest groups and special concerns would be raised one by one in Committee endlessly, day after day, because the Bill itself did not contain the necessary safeguards or machinery to be able to refer this forward.

When I saw Ministers, I reminded myself and therefore mentioned to them two things that I learnt from Roy Jenkins—that very wise Minister—when I worked with him. The first was when I asked him, “What advice can you give me about how to do my job?”. He said, “Anthony, I would like you to argue to solutions and not to conclusions”. I believe that is what we should be doing today—we should not be arguing to conclusions but to solutions. The second thing he said was, “Always dig a trench in a defensible position”. The worst thing you can do is to dig a trench in an indefensible position, be flushed out, dig another one and then be on the run. I believe it is essential today that this House digs a defensible trench which the Government and the House can hold, rather than going through a series of further debates like this quite unnecessarily.