Public Bodies Bill [HL]

My Lords, we are very much making progress as we reach Amendment 3B at quarter to nine tonight. This is an important amendment, and with it I speak to my Amendments 120, 124 and 125. In view of all our discussions I think that noble Lords will agree that, when it comes to a Minister deciding to bring an order before Parliament, the information made available to Parliament and the parliamentary scrutiny procedure assume great importance. My Amendment 124 seeks to ensure that sufficient information is provided to Parliament. In it, I propose five new subsections that would ensure that Parliament would be able to have a sufficient explanation, an explanation of the consultation, information about representations, and the kind of information that is important when it comes to dealing with an order. Perhaps more importantly, my Amendment 125 seeks to put in place an appropriate parliamentary procedure for scrutiny. My amendment is broadly based on the Legislative and Regulatory Reform Act 2006 and what is described as a super-affirmative procedure in it. I do not want to repeat what has been said before but that Act is highly relevant to our discussions on this Bill, because it gives extensive powers to Ministers to remove or reduce burdens resulting from legislation, including primary legislation. I agree with the report of the Delegated Powers Committee when it said that, "““the insertion of a super-affirmative procedure cannot bring a misconceived delegated power within the bounds of acceptability””." It went on to say: "““A single stage of consultation is clearly no substitute for the detailed scrutiny afforded by the use of a bill (the process by which the functions of many of the bodies listed in this Bill were debated and decided)””." If we were to continue with the use of this Bill, the committee suggests that, "““the government, not Parliament, would retain the sole ability to make amendments to orders””," although my noble friend Lord Dubs has tabled an amendment that seeks to create a procedure whereby orders can be amended. I agree with the committee that, if the legislation is rotten to its core, the insertion of a super-affirmative procedure cannot bring it, "““within the bounds of acceptability””." However, we are trying to solve the conundrum of ensuring that these bodies are reviewed on a regular basis, which we all want. The noble Lord, Lord Renton, talked earlier about the need for a process whereby there can be minor changes; again, that seems eminently sensible. A super-affirmative procedure may be one way in which one can make the Bill more acceptable and certainly give more effective parliamentary scrutiny. The LRR Act allows for a more extensive parliamentary scrutiny process. Section 12 sets out procedural requirements for making orders. The Minister has to consult on the order, and then lay a draft order and explanatory document before Parliament. The order’s procedure can be a choice of negative, affirmative or super-affirmative. Essentially, the Minister has to recommend, in an explanatory document accompanying the draft order, which parliamentary procedure should apply and his or her reasoning for that. The level of scrutiny recommended should depend on the views of the Minister on the complexity and impact of the order. That may be informed by representations on the proposals received during the consultation process, and the Minister’s recommendation on whether a procedure should be negative, affirmative or super-affirmative shall apply, unless either House of Parliament requires a more onerous procedure. The key importance of the LRR Act is in the nature of the super-affirmative procedure, because that Act provides for a committee of either House, charged with reporting on the draft order, to recommend that no further proceedings be taken in relation to the draft order, unless that recommendation is rejected by a resolution of the House. It is sometimes known as the veto procedure, although it is clearly not an absolute veto. None the less, it is a pretty powerful mechanism for scrutinising such orders. I should have thought that any Government who were faced with a view of a committee charged with considering the order that it should not go ahead would have to think very seriously about whether they wished to go forward with that order. My amendment builds on the super-affirmative procedure and gives a number of options for a committee of either House to recommend to either House that the order be approved in its current form, or that it be amended, or that no further proceedings should be taken in relation to the draft order, or that it is more appropriate that it be progressed through primary legislation. My amendment specifies that unless the recommendation is that the order to be approved, it cannot be progressed unless the recommendation is rejected by a resolution of the House. If the recommendation is that the order be amended, it may not proceed unless the recommendation is rejected or the House approves the order, as revised by the committee. I have sought to build on the super-affirmative procedure and include some more flexibility in it. This is one of the key planks to reaching a consensual agreement on the Bill in your Lordships' House. I know that the noble Lord, Lord Taylor, is bringing some amendments, but they do not go as far as mine. It would be well worth thinking about whether a kind of super-affirmative procedure—if not with my amendment, then, I am sure, in a later amendment—can be provided for. However, the key principle here is that a Select Committee of either House should be able to take an order away, and if that committee decides that it is not appropriate for the order to go forward and that primary legislation might be more appropriate, although it is not an absolute veto, a measure such as this would provide great reassurance to your Lordships’ House.