Public Bodies Bill [HL]

As it is Report and we are not supposed to be arguing in this way on these matters, I hope the House will accept what I said. This is the advice that I have received and, indeed, theHouse has received from a number of noble and learned Lords—well, one noble and learned Lord and other noble Lords who might also be learned, but not in the parliamentary sense. I move on—I will be on safer ground, perhaps—to look at Amendment 69AA, tabled in the name of my noble friend Lord Phillips of Sudbury. It would require an explanation of why a Minister considers the order to be compatible with Clause 16(3), which refers to the need for an order to be proportionate to the reasons for it. We have not included such a provision within the Bill on the grounds that the explanatory document accompanying an order will set out the reasons for that order as a requirement of Clause 11. It will then be for Parliament to decide whether to approve an order and, if necessary, for the courts to assess subsequently whether an order is proportionate in relation to the reasons given. As we know, my noble friend Lord Newton is not here, but I am pleased that the noble Lord, Lord Whitty, spoke to my noble friend’s amendment, because Amendment 69D would require a Minister, when bringing forward an order under Clause 1, to set out whether any of the functions of a body to be abolished would continue and if so, where they would be exercised in future. I consider this amendment to be unnecessary as such information would as a matter of course form part of the consultation on the proposal required under Clause 10 and the reasons for the order required by Clause 11(2)(a), so we are back to the process of consultation and the explanatory document providing for that. In connection with Consumer Focus, I remind the noble Lord that Clause 1 allows for the transfer of functions. We will be consulting on our proposals specifically in respect of Consumer Focus, as I have explained, later this year. The effect of Amendment 96 in the name of the noble Lord, Lord Dubs, would be to clarify the date at which an order made under the Bill, if amended by Parliament, would come into force. I remind the noble Lord that there is currently no facility in the Bill for orders to be amended by Parliament, and I do not propose that such a facility should exist. However, I remind him that, under the enhanced affirmative procedure contained in the Bill, a Minister is at liberty to lay a revised order following the 60-day period. The Minister can take account of representations from Parliament and elsewhere in considering the form of the order as it proceeds. The wording of Amendment 96 appears to be drawn from the Civil Contingencies Act—that was well spotted by someone, but not me—which was designed to create a framework for dealing with emergency regulations that necessarily circumvent the usual channels of parliamentary scrutiny. In such a specific circumstance, the argument for the amendability of orders is of a different order, but I do not believe that the Public Bodies Bill is of a comparable nature. I turn to the question of the mechanism by which Parliament will scrutinise these orders, and specifically to whether the very unusual form of super-affirmative procedure proposed by Amendment 71 in the name of the noble Lords, Lord Hunt and Lord Rosser, and the noble Baroness, Lady Royall, is an appropriate mechanism for the Bill. When we last debated this matter in Committee, the noble Lord, Lord Hunt, noted that I had been ““forthright”” in rejecting this proposal. I would not take issue with that assessment; I have told him privately of the red line that I see on this issue. I am sure that by now the noble Lord is fully aware of the reasons why the Government will not accept this amendment. Accordingly, I ask the noble Lord to reflect on how far the Bill has come since we first debated this issue during the first Committee session. Since that time, a combination of the expert scrutiny of the committees of this House and a genuine willingness on the part of the Government to engage have led to a series of changes that have significantly restricted the scope of the powers that the Bill gives to Ministers. Government amendments on consultation and procedure have been accepted and now form part of the Bill, ensuring a robust and thorough scrutiny process. Clause 16 now firmly and objectively protects the necessary independence of some public functions—precisely those functions that had caused this House such concern during the early debates on the Bill. Schedule 7 and Clause 11, as was, have of course been removed, dramatically reducing at a stroke the scope of the Bill. The entries in the Bill’s schedules will now be sunset after five years, ensuring that bodies do not remain subject to the Bill’s powers in perpetuity. Lastly, and I take this to be most crucial, this House has thoroughly debated, in primary legislation, whether it is appropriate for each of the bodies in the schedules to be subject to the powers in the clauses to which those schedules apply. In some cases, this House has exercised its right to remove bodies from the schedules. In this context, it is clear that the scope of the powers granted under this Bill will simply not be of the same order as those attached to legislation which has often been cited in comparison, such as the Legislative and Regulatory Reform Act 2006. I need not remind noble Lords that that Act gives Ministers a general power to amend primary legislation without any equivalent to the debates on the entries in the schedules we have had during the passage of this Bill. If Amendment 71 was accepted, a Select Committee of either House could veto or amend any order laid under this Bill, regardless of the fact that each House will have necessarily given its consent, through primary legislation, to confer a power on a Minister to make such an order in relation to the body or bodies involved. The Government cannot accept that, given this prior scrutiny and expression of the will of Parliament in primary legislation, a single Select Committee should thereafter be able to frustrate the order-making process in this way. Under our own proposals, the draft order will have already been subject to appropriate consultation as set out in Clause 10, and the current procedure in Clause 11 gives both Parliament and its committees a full opportunity, if they desire it, to scrutinise the order and to make recommendations in relation to it before the order is approved. Following this scrutiny, it will be open to a Minister to amend the order or to withdraw it completely if appropriate. I remind noble Lords that by allowing for an extended scrutiny period, and providing the opportunity for committees of the House to make representations, our enhanced affirmative procedure captures much of the essence of a super-affirmative process set out in paragraph 42 of the Delegated Powers Committee’s 5th report. Perhaps it is appropriate now to thank my noble friend Lady Thomas of Winchester and her committee for its series of reports which presented us with a considerable challenge with this Bill. Meeting that challenge has greatly improved the Bill and we owe a great debt of gratitude to her committee for the way in which it has scrutinised this legislation—it has greatly helped the evolution of this Bill. She made interesting comments on the way in which committees of this House might work in scrutinising the statutory instruments that might come up under this Bill. My noble friend Lord Maclennan of Rogart was correct. This is something that the Procedure Committee has to consider—it is not a matter for this Bill. The Delegated Powers Committee’s 5th report on the Bill suggested that a provision for Parliament to amend secondary legislation would be extremely difficult to implement, particularly given the absence of a mechanism for resolving differences between the two Houses. However, my fundamental objection to Amendment 71 is that the Government, reflecting a manifesto commitment of both coalition partners and the coalition agreement, have taken the decision to reform public bodies. This is not a decision with which the noble Lord, Lord Hunt of Kings Heath, disagrees. He has been supportive of the process throughout. The Government brought forward a Bill in relation to these proposals which has received intense scrutiny in this House. The Government have, furthermore, worked with noble Lords to limit the scope of the Bill in a number of significant ways and devised a procedure that will allow for proper scrutiny of the detailed orders that follow. To impose a veto on these orders by a single Select Committee of either House and a capacity for Parliament to amend orders under this Bill is excessive, bearing in mind that Parliament will have given its explicit consent both to the Bill as a whole and to the inclusion of each separate body in the schedules through primary legislative process before any such orders could be laid. I hope the noble Lord, Lord Adonis, will see that this is what makes this Bill somewhat different from the Regulatory and Legislative Reform Bill. We are dealing with specific proposals laid before Parliament in primary legislation. I am not opposed to proper parliamentary scrutiny of government policy; my approach to this Bill and the Government’s proposed enhanced procedures demonstrate that. However, I am opposed to a procedure that would not increase the quality of such scrutiny, but would endanger our ability to deliver the more efficient and effective system of public bodies that the public rightly expect. That was promised in the coalition agreement and has the support of noble Lords from all sides of the House and, indeed, from the Benches opposite. I therefore ask the noble Lord to reflect on the consequence of his position in the light of my remarks and to withdraw his amendment.