Public Bodies Bill [HL]

My Lords, I rise to speak to the Government’s amendments in this grouping. I am delighted to have the chance to debate these amendments which, as my noble friend Lord Lester has pointed out, are crucial to maintaining Parliament’s confidence that these powers will be used effectively and appropriately. I am encouraged by the level of consensus on the objectives of these amendments, along with those in subsequent groups that have been tabled with the aim of strengthening the framework in which these powers will operate. I am determined to knock this Bill into shape. We have heard a number of contributions that could be considered to be Second Reading speeches, and we have had to go over ground covered at Second Reading. I do not hesitate to revisit this matter because it is important to reassure the Committee that one cannot sit in this House without being aware of the need to get the balance right between Parliament and government. I thank my noble friend Lord Renton of Mount Harry for his contribution. He recognised that the Government needed to tackle this problem of public bodies efficiently and effectively because the public expect that of Parliament. However, I understand that Parliament itself, having set up bodies by primary legislation, feels that it needs its say in the process of reorganising public bodies, in specifics and in general. My noble friend Lord Newton asked that I recognised the difference between explicit and implicit wording in the legislation. I understand that; it is a valuable point and I am grateful to him for making it. I cannot go all the way suggested by the noble Lord, Lord Clinton-Davis, who asked me to withdraw the Bill. That is a big ask, if I might say so, and I hope that he will understand that I might not be able to meet it. I have to be honest; I do not think that I will be able to meet all the views expressed in this debate. The noble Baroness, Lady O’Loan—she is not in her place at the moment, unfortunately—took a fundamentalist view of the use of legislation of this type to try to deal with this matter. However, from the contributions of the noble Baroness, Lady Andrews, and the noble Lord, Lord Soley, I felt that they wanted some success out of the Bill. It would be wrong of me not to say that I listened to their contributions with great interest, as I did at Second Reading. I noted, too, the contribution of the noble and learned Lord, Lord Lloyd of Berwick. I will refer to the contribution made by the noble and learned Lord, Lord Woolf, and to other contributions on particular aspects of the subject where I am grateful for the elucidation that we received. I said at Second Reading that I would seek to amend the Bill to safeguard the independence of public bodies in exercising certain functions. Government Amendment 108 does just that by amending Clause 8 to ensure that Ministers consider the need for functions to be exercised independently because they require professional or specialist expertise or impartial advice in respect of Ministers’ policy, or because they involve establishing facts in relation to scrutiny of Ministers’ actions. That set of amendments goes back to the Statement that I repeated in this House—if I remember correctly, it was 14 October—made by my right honourable friend Mr Francis Maude, as to the tests applied to public bodies. That must be placed on the face of the Bill, so that it is clear what test the Government apply in determining the validity of the independence of public bodies because of their functions. The Delegated Powers and Regulatory Reform Committee’s report on the Government’s amendments states that the additional safeguards in Amendment 108 are still too limited. We take the report seriously and thank the committee again for its continued contribution to the debate on the Bill. On the important subject of safeguards, our amendments represent a proportionate response to the committee’s original concerns. We will of course consider further the detailed points raised in the committee’s second report and work with Peers to meet their concerns. On regulatory functions, the Government have already made it clear that they will not use the powers conferred by the Bill to make changes to network regulatory functions, and that such an exclusion is not necessary in the Bill. In response to concerns raised on Second Reading, I have also tabled government amendments to make it clear that the necessary protections which the Minister must consider to be satisfied include the independence of the judiciary. I would like to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. However, given the concerns raised, I have included a specific reference to that principle. My noble friend Lord Lester’s amendment, as he outlined, states that the powers in the Bill must be used in a way that is compatible with judicial independence and the exercise of judicial functions. My noble friend refers to my reference at Second Reading to the administration of justice and asks whether I will accept that this also needs to be reflected in the Bill. Again, the Bill does not amend or alter the independence of the administration of justice. I will, however, take away his concerns and reflect on whether this can also be reflected so that it is explicit, rather than implicit, in the Bill. Given the particular concern of noble Lords, I undertook to look again at the inclusion of those bodies with a judicial function in Schedule 7. The whole House will remember the distinguished contribution at Second Reading of the noble and learned Lord, Lord Woolf, on this matter. We were fortunate again to hear his contribution today. I reassure noble Lords that I will, following further discussions, bring forward amendments in relation to those bodies for debate on that schedule later in Committee. My noble friend Lord Lester also raises the issue of making an express provision to compel Ministers to act in accordance with the European Convention on Human Rights. This is unnecessary because, as he points out, the necessity for Ministers to act in accordance with those rights is protected by the Human Rights Act. The Bill does not and cannot amend those rights. My noble friend made an important point about the notion of ““necessary protection”” in the Bill. I can confirm that this could extend to economic protection, health and safety protection, the protection of civil liberties, the environment and national heritage. On the issue of proportionality that my noble friend raises, I do not disagree that Ministers, in exercising their powers, should always aspire to be proportionate. Indeed, I do not think that the objectives to which the Minister must have regard in Clause 8 and to which my noble friend’s amendment refers are likely to be achieved without it. Given that, and in consideration of the necessary protections in Clause 8(2), I am still inclined to think that the inclusion of a specific reference in the Bill to the need to use proportionate means to achieve these objectives is unnecessary. However, I understand that noble Lords are particularly concerned about this. The noble Lord, Lord Pannick, made an eloquent speech on this subject, and my noble friend Lord Campbell of Alloway also spoke on it. I understand the concern of noble Lords and others who have argued powerfully for the inclusion of the specific reference. I will therefore take this matter away and think further about it with a view to bringing forward amendments, if necessary. My noble friend Lord Lester’s Amendment 106 would apply the matters to be considered in Clause 8 to the powers in Clause 11. Orders made under those powers would move a public body from Schedule 7 to one of Schedules 1 to 6. In order for any changes then to be made under the provisions in Clauses 1 to 6, a second order, to which the requirements in Clause 8 would apply, would have to be made. The matters to be considered would therefore have to be applied before reforms could be made to bodies using the powers in Clause 11. For that reason, Clause 8 has not been applied to orders made under Clause 11. However, I will look again at whether there would be any benefit in extending Clause 8 to apply to the powers in Clause 11. My noble friend Lord Lester tabled Amendments 109 and 110, which would amend the matters to be considered in Clause 8(2). This would take away the Minister’s consideraton in determining whether an order removes necessary protections and replace it with a requirement that the Minister may make an order only if those conditions are ““reasonably”” met. The Government have also tabled an amendment to Clause 8(2) that ensures that a Minister may make an order only if they consider that the conditions that the order does not remove any necessary protections are satisfied. The Minister’s consideration in determining whether the conditions are satisfied is important. The Minister is responsible and accountable for orders, and must justify how those conditions are met when laying a draft before Parliament. The Government’s amendment strengthens the requirements in Clause 8(2) and strikes the right balance. The Delegated Powers and Regulatory Reform Committee’s suggestion that this consideration should be for Parliament would not strike the right balance. It would remove the emphasis from Ministers, who should rightly ensure that their orders meet all relevant safeguards before they are introduced. Amendments 14 and 107, in the name of the noble Baroness, Lady Hayter, would require Ministers, before bringing forward an order under Clauses 1 to 6, to have regard to the aims, objectives or functions of the body in question where they are specified in legislation. I agree with her objective of ensuring that the independence of a number of bodies is not undermined by the Government’s approach to delivering important reforms in a timely and proportionate manner. The Government’s amendments to Clause 8 substantively improve the Bill and require a much wider set of considerations for Ministers when bringing forward orders to effect change. They require them to consider not only the efficiency, effectiveness and economy of the exercise of public functions, but the importance of independence for particular functions and the protection of the independence of the judiciary. I hope that our proposed new protection for independence, in particular, will help to allay the noble Baroness’s concerns. I thank all noble Lords for their contributions to the debate. I thank my noble friend Lord Lester for his continued engagement on the Bill and in particular for his work on safeguards. He has been constructive in his approach and in his work with my officials to help make improvements to the framework in which these powers will operate. I want to continue working in a collaborative way and will reflect further on proportionality and the independence of the administration of justice. I ask my noble friend to withdraw his amendment.