Public Bodies Bill [HL]

I rise to speak to my Amendment 175 and to support the amendments in the names of the noble Lords, Lord Lester and Lord Pannick, and my noble friend Lady Hayter. At Second Reading we made it clear that our concerns with the Bill were not with the principle of a regular review of public bodies or—I say this to the noble Lord, Lord Renton—with the tidying-up process. Our overriding concern is with the draconian powers that could be available to Ministers. I am the first to acknowledge that the noble Lord, Lord Taylor, has introduced a series of amendments and I am grateful to him for so doing, but I simply do not think that they go far enough. The Government have underestimated the concerns of noble Lords. My noble friend Lord Soley was surely right that the amendments are surprising in view of the trenchant criticism made of the Bill by two committees of your Lordships' House. The Constitution Committee said that the Bill, "““strikes at the very heart of our constitutional system””," while the Delegated Powers and Regulatory Reform Committee said that it considered, "““the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process””." That is the context in which we consider this group of amendments. The noble Lord, Lord Elystan-Morgan, said that it is not really about the 450 bodies listed in the Bill; it is about the relationship between the Executive and Parliament. He is absolutely right. None the less, being listed in the Bill has a chilling effect on every body so listed. I understand what the noble Lord, Lord Renton, said about the need for pruning and streamlining. The problem is that the Bill could allow Ministers to go further. I ask the Minister to reflect on an organisation listed in Schedule 7, or ““death row”” as my noble friend Lady Andrews described it. Under Clause 11 a Minister may, by order, add any of the bodies listed under Schedule 7 to one of the principal schedules to the Bill—Schedules 1 to 6. For instance, if a Minister wants to abolish a body, he first moves it, by order, to Schedule 1. He then produces another order to abolish it. In his letter to the Delegated Powers Committee the noble Lord, Lord Taylor, is reassuring in asserting that this will be a two-stage process. However, he then gives the game away by going on to say that it may be appropriate—and would assist Parliament—for the two orders to be debated together. The first order would move a body from Schedule 7 to Schedule 1, in the case of abolition, and the second would be for abolition. I am not sure about Parliament but I can certainly see that it would assist the Executive if it were able to adopt what is, essentially, a one-stop shop approach to abolition. The impact on all those bodies in Schedule 7 is clear. They will be cowed and become the malleable creatures of the Executive. Any idea of independence of thought by these bodies—any possibility of criticism of government—can be ruled out. It would take just one or two words of caution from the Minister or his officials, or any implied threat to move one of these bodies to Schedule 4, say, for a potential reduction in its finances; or to Schedule 3, which gives Ministers power to sweep away the governing bodies of those organisations and replace them with other people; or to Schedule 1 for outright abolition. Just one or two such hints and most of those bodies listed in Schedule 7 would be expected to fall into line immediately. Already I have been told of bodies listed in the Bill that have been warned by officials against making representations to parliamentarians on the Bill. It is remarkable, given the number of organisations listed, how few have written to us. The chilling effect is already in place. The constraints that we can place on the Executive in the Bill are crucial. The noble Lord has tabled several amendments, which I welcome. The noble Lord, Lord Taylor, is well known as a Minister who understands this House. The problem is that the amendments still leave us with the huge discretion that is being given to Ministers. Take the Minister’s amendments, particularly to Clause 1. As the noble Lord, Lord Pannick, has suggested, the Minister can go through the process but then decide, presumably in the case of each of the organisations so listed, that those functions do not need to be exercised independently of Ministers. That would be it; the Minister would have done what the Bill requires of him. In its report today, the Delegated Powers Committee puts it rather more eloquently than I can. It says: "““But it remains the case that the Minister need only ‘have regard to’ the objective of securing appropriate accountability to Ministers: the Minister remains entitled to consider the need for independence to be outweighed by other factors””." The noble and learned Lord, Lord Lloyd of Berwick, made a very interesting intervention on Amendment 108 to Clause 8, which he thought was a contradiction in terms given that the objective is to seek greater accountability of Ministers, whereas the amendment in the name of the noble Lord, Lord Taylor, refers to functions that, "““need to be exercised independently””." The noble and learned Lord said that either the amendment means nothing at all or the Government will end up in the courts rather frequently. Like the noble Baroness, Lady Andrews, I am disappointed that the model in the Legislative and Regulatory Reform Act 2006 was not used. That Act provides a parallel. It gives enormous powers to Ministers to remove regulatory boundaries in primary legislation. However, that Act provides many safeguards, including the principles to which the noble Lord, Lord Pannick, referred. Section 3 of that Act contains the preconditions that Ministers must meet before they can make an order—the principles which the noble Lord described. The provisions in Section 3 of that Act are stronger than the measures in this Bill, even with the amendment of the noble Lord, Lord Taylor. I know the Minister believes that this Bill differs from the Legislative and Regulatory Reform Act in a number of respects. He explained in his letter to the Delegated Powers and Regulatory Reform Committee that that is because this Bill has different subject matter and a narrower scope of powers than the 2006 Act. However, noble Lords who have read the Delegated Powers and Regulatory Reform Committee’s report that was published this morning will note that the committee states: "““It is true that the powers in the Bill can apply only to the 200+ bodies listed in it. But section 2 of the 2006 Act seems to the Committee narrower in at least two respects than the powers in the Bill. First, it limits the extent of Ministerial powers by specifying that the power may only be exercised with a particular purpose in mind … Secondly, the power in section 2 of the 2006 Act cannot be used to abolish any regulatory function or confer any new regulatory function””." The committee points out that: "““Clauses 1, 2 and 5 of the present Bill contain no such limitation””." Therefore, even with the amendments by the noble Lord, Lord Taylor, we need to constrain ministerial powers in the way suggested by the noble Lord, Lord Lester. In his opening remarks the noble Lord described his Amendment 1 as keeping the door open to later amendments. That is indeed what his amendment does. I hope that he will keep the door open, have the courage of his conviction and press his amendment. I hope that he will allow the House to vote on it today.