Public Bodies Bill [HL]

My Lords, it is a great honour to follow the noble and learned Lord, Lord Woolf. I shall refer to inappropriate use of delegated legislation. I should declare an interest as a member of the Delegated Powers and Regulatory Reform Committee. It may be helpful to Members who have not had an opportunity to see our sixth report to tell them in brief what it says. In its fifth report, the committee strongly expressed the view that the Bill provided Ministers with unacceptable discretion to rewrite the statute book with inadequate parliamentary scrutiny and control of the process. It found that the Bill was almost ““wholly enabling”” and granted Ministers enormous discretion to use delegated powers to abolish or restructure a large number of public bodies and offices. I echo what has already been said around the House about the response of the Minister in trying to address some of the fundamental issues that were raised at Second Reading, and we are grateful for that, but the committee concluded in its report, published this morning, that the concerns had not been resolved and that, "““the powers themselves are not … appropriate delegations of legislative power””." That brings me to the speech just made by my noble friend Lord Soley. While the Minister has tried in his Amendment 108 and those that follow to address some of the concerns through a form of affirmative procedure, it is simply not adequate to deal with the fundamental problems identified with such eloquence by the noble and learned Lord, Lord Woolf, and other Members of this House. I have some problems with the amendment put forward by the noble Lord, Lord Lester, in the context of the comparison rightly made between this Bill and the Legislative and Regulatory Reform Act 2006. The Government introduce in Amendment 118 a new procedure for orders. It is a form of super-affirmative order. Unfortunately, the Government’s argument as to why it is sufficient is disingenuous. The Minister argued in his letter to the Delegated Powers and Regulatory Reform Committee that the Bill is narrower than the Legislative and Regulatory Reform 2006 because that Act applied to policies at large and that the range of protections in it was therefore not appropriate for this Bill. The fact is that this Bill is wider than the Legislative and Regulatory Reform Act 2006. Although the 2006 Act is wider in scope, in the sense that it can involve any public policy or legislation, its effect is narrower, because it is strictly limited to making processes more transparent, accountable, proportionate and consistent. Those are very specific requirements. This Bill is narrow only in the sense that it deals with public bodies, but the powers that it has taken, described by the noble and learned Lord, Lord Woolf, are enormous. What is more, in Schedule 7, we do not know even what those powers will be or what they will be used for. That is what exercises this Committee and it should exercise the Government. Even more important, Section 2 of the 2006 Act cannot be used to abolish or confer any new regulatory functions, but Clauses 1, 2 and 5 of this Act expressly provide for the abolition and the creation of regulatory functions. If the Minister were to take my point and say that he would come forward with an amendment which imported all the relevant procedures of the 2006 Act into this Bill, the House would have this additional capacity: it would take only a recommendation, not a resolution, of a committee of either House to require the Government to have regard to representations, resolutions and recommendations. More importantly still, the committee of either House could veto further proceedings until such time as the House rejects the committee’s position. A Minister who wanted to push on with an order unaltered after having been required to have regard to the representations will have to lay a Statement before Parliament giving details of any representations received. That seems to me the minimum that we should expect on this Bill. I have left the most serious charge until last. The majority of speakers at Second Reading were very clear about the way that they viewed the toxicity in Schedule 7, which has become known as death row. The large number of amendments on Schedule 7 speaks for itself. Clause 11 and Schedule 7 exemplify the toxic nature of the Bill. This was only too clearly exposed in the Minister’s letter to the DPRRC in which he said, again disingenuously, that to enact the series of changes needed for a diverse range of public bodies through primary legislation, "““would involve a bill or bills the size of which would be undeliverable, or waiting, over a number of sessions, for suitable legislative vehicles””." He said that owing to other pressures on Parliament and the fact that some departments often do not have a legislative vehicle in a particular session, "““the use of primary legislation would cause severe delays to the proposed reform package.””" Is that not the point? Ministers come to this House with legislation properly prepared and appropriate to its use of powers; Ministers wait for a legislative opportunity. This Bill would give any Minister an opportunity to put forward to this House a raft of proposals completely unconsidered by this House, bypassing primary legislation and using the excuse of secondary legislation because he was in a hurry; because there was no slot available on the parliamentary timetable; because Government were simply too busy to allow Parliament to undertake its proper scrutiny. I do not know where we are going on this Bill but I advise the Minister, good man that he is, to think extremely seriously about what is being said about the fundamental principle.