My Lords, I beg to move that this Bill be read a second time.
This is an important Bill, as the Speakers List recognises, and this is an important day. I shall use this speech as an opportunity to introduce the Bill and to explain why we are bringing it forward.
The coalition Government, following manifesto commitments of both coalition parties, are committed to the creation of a more transparent and accountable system of government in the United Kingdom. As part of this process, we are committed to making substantial reforms to the public bodies landscape. These reforms are long overdue. While we recognise the excellent work done by public bodies and their staff, we equally recognise the widely held view that what is often referred to as the quango state can add unnecessary complexity to public life, diluting the proper accountability of Ministers to the electorate.
The quango state has in the past suited both government and politicians. It has never suited the British public, who expect clarity and, as taxpayers, insist, rightly, that Ministers ensure that every pound the Government spend is spent efficiently and effectively. In 2009, £38.4 billion of public money was spent by public bodies; it is our duty to ensure that this expenditure is properly focused and that all public bodies are fit for purpose.
To guide this vital reform process, the Government have conducted a review of 901 public bodies, making a coherent, cross-government assessment of whether their functions were still required, and where and how these functions could best be exercised. Technical functions and those requiring independence or the provision of impartial advice would continue to be delivered by a public body. That remains the yardstick for these reforms and will continue to be the means by which the Government assess their commitment to public bodies—technical functions, the need for independence and the provision of impartial advice.
As a result of the review process, my right honourable friend the Minister for the Cabinet Office announced in another place on 14 October that the Government proposed to abolish, merge, or substantially reform 481 bodies. The Public Bodies Bill is a crucial element of the delivery of this programme. It would create a transparent legislative framework that will allow many of these reforms to be implemented. In addition, it would clarify in statute those bodies which the Government intend should be subject to future review processes, and would create a power to enable subsequent changes. In summary, the Bill would enable the Government to deliver what the public rightly expect: a public bodies landscape which is accountable, effective, and efficient. I hope that these are principles on which noble Lords on all sides can agree.
The numbers speak for themselves. The speakers list shows why this Bill was not a Lords starter by chance. The expertise this House contains will be borne out by our debate today and by subsequent days in Committee. The Government are keen to take advantage of this expertise to scrutinise this Bill with thoroughness. This is why we cannot support the amendment in the name of the noble Lord, Lord Hunt of Kings Heath. This Bill is not overly complex or technical and does not seek to radically overhaul our constitution, in contrast to the last Bill to be subject to such an amendment in this House—only the second instance of such a procedure since 1917. On the contrary, a Committee of the whole House is precisely the venue for detailed consideration of this Bill. Many noble Lords have an interest from a variety of perspectives; we will hear many of these perspectives today. I do not see what a referral to a Select Committee would add to that process, beyond an inevitable delay to the passage of the Bill and a consequent delay to a series of reforms which, in many cases, are uncontroversial and enjoy wide cross-party and public support.
I therefore ask noble Lords to consider carefully the implications of obstructing the Bill in this way, particularly given the practical difficulties inherent in seeking to implement these reforms through primary legislation. I also remind the House that the noble Lord, Lord Hunt of Kings Heath, chaired a Labour working party on Lords procedure which criticised this House for referring the Constitutional Reform Bill to a Select Committee in 2004. He declared:
“The House has pushed at the limits of the convention that it must consider the Government’s business without unreasonable delay”.
Today, he asks noble Lords to push at those limits on this Bill which, while undoubtedly of significance, does not have the exceptional impact on this House that the Constitutional Reform Bill had. I do not need to remind noble Lords that that Bill substantially altered centuries-old constitutional arrangements and the composition and role of this House. The Public Bodies Bill would have no such effect, and there is no justification for treating it in an analogous manner.
I do not wish to imply that I am in any way dismissive of the concern of noble Lords. I have met noble Lords from all sides of the House, listened to their concerns and suggestions, and intend to continue to have an open door on this Bill during its passage through this House. I think noble Lords know me well enough to know that this is not an empty gesture. Specifically, the Government see some merit in the suggestion that an order made under the Bill could be published in draft to enable a period of consultation with interested parties. We intend to consider this further.
I have noted the report of the Constitution Committee on the Bill. I thank that committee’s members for their work on this report and assure those present that I will respond in due course and engage constructively with the committee to address its concerns. In response to their complaint that the Government have not made their case for the Bill, I ask them to consider today’s debate as the beginning of that process.
I turn to the Bill itself. It would confer on Ministers a set of order-making powers to make changes to public bodies and offices via statutory instrument, providing a coherent and efficient procedure for change across government. All the main powers in the Bill would be subject to the affirmative procedure, ensuring that Parliament is able to scrutinise the detail of all changes as they are brought forward.
I emphasise to the House that the powers in Clauses 1 to 6 are limited in their application to the bodies listed in the corresponding schedules. Similarly, Schedule 7 limits the bodies to which the powers in the Bill might apply in the future. The Government wish Parliament to have clarity about the types of change that the Bill can enable, and these mechanisms secure that clarity. It would not be possible, for example, to use the Bill to effect changes to a body not listed in Schedules 1 to 6. While it is possible to move a body from Schedule 7 to a different schedule to enable such a change, this move would itself require a distinct statutory instrument.
By way of illustration, I shall give the House a number of examples of the changes we propose to make, and why they are necessary. Clause 1 gives Ministers the power to abolish a body or office; this power is relevant where the functions of a body are no longer required, or can best be carried out elsewhere. In some cases, such as British Shipbuilders, functions have already been wound down or transferred, and an order made under the Bill would simply remove the legal entity and transfer liabilities. In other cases, this power would enable more substantive reform, such as the replacement of regional development agencies with local enterprise partnerships, providing more targeted support for economic growth.
The intention of Clause 2 is to allow groups of bodies to be merged, drawing together their assets to ensure that public functions are discharged efficiently and effectively. It is for this reason that the Government intend to merge the Pensions Ombudsman with the Pension Protection Fund Ombudsman, simplifying current arrangements under which the two bodies, which already provide a coherent service, exist as separate statutory entities.
Clauses 3 and 4 give Ministers the power to modify respectively the constitutional and funding arrangements for bodies. For example, the Government intend to improve the accountability of the Equality and Human Rights Commission to Ministers and Parliament by requiring it to lay its annual business plan before Parliament, and to emphasise the importance of effective internal governance by placing the EHRC’s Audit and Risk Committee on a statutory footing.
Clause 5 allows for a body’s functions to be modified, and for the transfer of functions to an eligible person. In the case of the Horserace Betting Levy Board, the Government plan to remove the Secretary of State’s role in relation to the annual levy determination, reducing the Government’s involvement with horserace funding by devolving greater responsibility to the parties concerned.
The final principal power is to authorise delegation. The Government envisage that this power would be used to give bodies the flexibility to improve efficiency by delivering some functions through a third party—for example, empowering citizens by delegating some functions to local groups.
These powers provide a targeted framework for the reform of public bodies in the UK, centred on principles of accountability, efficiency and effectiveness.
My Lords, will the Minister clarify the position in relation to United Kingdom bodies like the Forestry Commission or the Security Industry Authority should the Scottish Government disagree with the United Kingdom Government? How would the matter be resolved?
There has been a dialogue with the devolved authorities throughout the course of the Bill. This is a continuing process. There is a separate chapter on the Forestry Commission; I will speak to that shortly. It is a matter of debate. There is no division of view between the United Kingdom and the devolved authorities on this at this stage.
It is my understanding that the Scottish Government are of a different view from the United Kingdom Government in relation to both the Security Industry Authority and the Forestry Commission, so this is not a theoretical problem. I am asking the Minister not what discussions have taken place but, when there is a dispute, how it is to be resolved. It is not clear from the Bill how any resolution can take place.
The Bill has proceeded on consensus. I do not imagine that it will deviate from that course in the future.
To continue, the remainder of the Bill provides for several supplementary and associated functions. Clauses 13 to 16 would give Welsh Ministers specific powers to reform environmental bodies in Wales. These powers have been requested by the Welsh Assembly Government to enable changes following their current review of environmental regulation.
Clauses 17 to 19 concern forestry. The Government are exploring a new approach to the ownership and management of woodlands and forests, with a reduced role for the state and a bigger role for individuals, businesses, civil society organisations and local authorities. I assure the House that this Government will not compromise the protection of our most valuable and biodiverse forests, including our historic woodland. Measures will remain to preserve and enhance the vital public benefits that our forests provide. The Government will consult widely on their future plans and invite views from a wide variety of stakeholders.
Clauses 20 to 22 place specific restrictions on the use of the powers in the Bill. These clauses complement the additional protection in Clause 8, which prevents a Minister making an order that he or she considers will infringe an individual’s rights. Clauses 23 to 25 confer powers to create transfer schemes and provision about taxation in relation to the powers in the Bill. Finally, Clause 26 amends the Superannuation Act 1972, clarifying rights of participation in the Civil Service pension scheme for employees of some public bodies.
I know that Members of this House will wish to scrutinise the Bill thoroughly, with regard both to its structure and its implications for specific bodies. I recognise that there are understandable concerns among staff who work for bodies where reform is proposed. I assure the House that the Government are committed to doing all we can to make changes in a manner that is fair and consistent. I also reassure the House that the fact that a body is named in Schedule 7 to the Bill should not be misconstrued as constituting an intent to abolish or otherwise reform. It simply indicates that the body concerned was within the scope of this year’s review and may be within the scope of future review programmes reported to Parliament.
I would agree with noble Lords that many bodies named in Schedule 7 perform crucial public functions with which the Government have no wish to interfere. For example, we will not do anything to undermine the vital organisational and editorial independence of Channel 4, one of the country’s most highly valued broadcasters. However, as a public corporation with statutory functions, it is right that it should be listed alongside other bodies that have undergone the recent review process. There are certain functions that the Government intend should remain outside the scope of future reviews and the powers in the Bill. These include the economic and network regulatory functions of bodies such as Ofcom, Ofwat and Ofgem, where the Government wish to ensure that regulatory stability is maintained and the cost of capital is not adversely affected.
I look forward to the debates on this Bill and to the wide-ranging expertise which noble Lords will bring to these discussions. I have committed to consider the concerns of colleagues about any aspect of the Bill, and I say again that this is a sincerely held commitment. But in making this commitment, I ask noble Lords again to reflect on the vital and sensible purpose of the Bill. As my right honourable friend the Minister for the Cabinet Office stated in a Written Statement in another place on 14 October:
“The landscape for public bodies needs radical reform to increase transparency and accountability, to cut out duplication of activity, and to discontinue activities which are simply no longer needed”.—[Official Report, Commons, 14/10/10; col. WS 27.]
All the main parties have acknowledged that this is a necessary task and the Public Bodies Bill is an essential part of this process. By creating a framework to make changes to a broad range of bodies, the Bill before this House represents a real opportunity to make lasting reforms to the business of government, and I commend it to the House.
Before the noble Lord sits down, I wonder whether I could ask him a question. He has given us his view on how proud the Government are and has said that this is a considered decision, about which they have thought a great deal. If my arithmetic is right, the Government have been in office for about 150 days. Taking out weekends and the Summer Recess, they were left with about—being very generous—120 days in which they could have considered this. They are supposed to have considered 900 instances in 120 days which, if my arithmetic is right, is seven and a half per day. Does the noble Lord really think that that is a proper consideration? Can he give us some inkling of the names of the people who are so remarkable that they can do that?
We will have plenty of time to discuss the question which the noble Lord has asked. It is reasonable for him to understand that this has been a cross-government review in which all departments have been engaged. It is a single, co-ordinated attempt by all of government to make a more efficient and effective public body sector.
My Lords, I thank the Minister for his detailed exposition of the Bill and for the constructive discussions that we have already had on it, which I know will continue in the future. I do not doubt his sincerity one bit. I thank him, too, for the concessions that he has indicated, although I do not believe that they are sufficient for the Bill.
We need constructive discussions because this is a bad Bill. It is badly thought out, badly structured, badly executed, bad for the constitution, bad for public bodies and bad for government. We will oppose the Bill, and the lengthy list of eminent speakers wanting to debate it today suggests that we will not be alone in so doing.
At the beginning of the debate, I want to draw to the House’s attention the recent report on the Bill by the House of Lords Select Committee on the Constitution and add my thanks to the committee for its work on the Bill. The committee’s report is one of the most devastating critiques of a government Bill that I have ever seen a committee of this House deliver. I am sure that distinguished members of the committee who are down to speak in today’s debate will detail the committee’s report. However, for the moment, I should like to quote one of its most compelling conclusions. It is as follows:
“The Public Bodies Bill [HL] strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber”.
I believe that that is right, fair and accurate. In dealing with this Bill, it is a judgment of which the Government and indeed this House tonight in the Division Lobbies need to take full account.
We want to oppose the Bill constructively and reasonably. The amendment that we are proposing, which my noble friend Lord Hunt of Kings Heath will detail later, is both constructive and reasonable. It is not obstructive in any way. It simply seeks to refer the Bill to a special Select Committee of the House for fuller and proper consideration ahead of its Committee stage. This is exactly the approach proposed for the Constitutional Reform Bill in 2004, when my noble and learned friend Lord Falconer of Thoroton brought forward measures to reform the office of the Lord Chancellor and to create the Supreme Court. The noble and learned Lord, Lord Lloyd of Berwick, proposed putting the Bill to a special Select Committee of the House, and the House agreed that that was a proper and appropriate step. It is not telling tales out of school to say that we as a Government did not want to take that step. Perhaps that is the Government’s position today, but my noble and learned friend Lord Falconer was the first to admit that the Bill, after it had been considered by the special Select Committee, was improved—indeed, greatly improved—by the process. I urge the Government today to heed that judgment and agree that this Bill should take the same route. To do so would improve—indeed, greatly improve— the Bill.
We on these Benches believe that arm’s-length public bodies, the subject of the Bill, play an important part in our public governance and public life. Many carry out vital and sometimes essential functions. However, they must be effective and efficient, as the Minister said. Like the noble Lord, we do not believe that these bodies should be set in aspic; we do not believe that they should be preserved at all costs. In some instances, they come to the end of their usefulness or natural life. In some cases, other bodies or entirely different means are better at addressing the issues that the arm’s-length bodies were established to consider. That is why, earlier this year when still in government, we proposed and began our own review of arm’s-length bodies.
The Benches opposite like to present this party as a quango creator, but, in fact, when we came to power in 1997 there were some 1,230 arm’s-length bodies and, even by the time we began our own review, we had cut the number to some 750—a cut of 40 per cent. By contrast, since coming to office, the coalition Government have created 20 new bodies. We are not die-in-a-ditch defenders of arm’s-length public bodies, but we oppose what the Government are doing in the Bill and how they are proposing to do it.
The first point is that the coalition is proposing to abolish or change fundamentally any or all of the bodies listed in the schedules to the Bill. These are, in fact, largely statutory bodies, although some are constituted by royal charter. Many Members of your Lordships’ House will, I am sure, raise particular concerns about individual organisations specified in the Bill. I, too, wish to do so.
I share the concerns of many Members across the House about particular organisations, but my own concerns relate specifically to Clauses 17, 18 and 19, on the powers in relation to forestry. I grew up in the Royal Forest of Dean, an area of great beauty, history and heritage. I live there still. Foresters are immensely proud of their ancient rights and traditions, but also of the environment and the flora and fauna and of our contribution to being part of the solution to the problem of climate change. The forest is protected and well managed, but it is also a place where people have free access to walk, picnic, ride or swim in the ponds.
Clause 17(2) enables the Secretary of State by order to amend the Forestry Act 1967 to modify the purposes, objective or conditions by which the Forestry Commission disposes of land, manages and uses it or lets or grants rights or interests over it. The Secretary of State may exercise such a function for “any purpose or unconditionally”. Those are chilling words. This appears to allow the Secretary of State to order the disposal of any Forestry Commission land in England, or its use for some other purpose. It is hard to conceive why Ministers want such draconian powers, unless it is the Government’s intention to dispose of much or all of the Forestry Commission’s land. I have no idea why the Government would wish to do that. Perhaps the Minister could tell us.
Ministers may speak about the big society, as they do on the Defra website. I am in favour of the good society, but I do not want my forest, or other woodlands and forests that are well managed and cared for by the Forestry Commission, at a cost to the Exchequer of a mere £10 million last year, to be sold off. Mrs Thatcher’s Government, in accepting amendments to the Forestry Bill of 1981, recognised that,
“the Forest of Dean is unique and that its land should not be sold except … surplus cottages, small areas of the Waste in the forest and the like will be sold as in the past, but there will be no power to sell significant areas of forest land”.—[Official Report, Commons, 8/7/81; col. 502.]
I will do everything in my power to ensure that this situation continues. Friends of my local MP, who as a government Minister clearly supports the Bill, criticised my support for the Forest of Dean, as I am against a corporate buyout of the forest. The forests of this country are and must continue to be a national asset, where trees are managed, where biodiversity is protected and where public rights of access continue in perpetuity. If they are sold off with the weak voluntary safeguards mentioned in the Bill, how can the quality of access, management of the land, biodiversity and habitat be guaranteed for future generations?
The second point concerns how the Government propose to do what they seek to do. Through the Bill, they propose a fundamental shift in who controls these bodies. It will not be Parliament; it will be Ministers. The whole scheme—and a skeleton scheme at that—is built on the Government’s supposition that it is better to have a process where Ministers make the decision about the life or death of an arm’s-length body and fast-track the parliamentary process. As the Select Committee points out, the issues raised by this approach transcend politics and go to the heart of Parliament’s role in scrutinising legislation and deciding whether fundamental government proposals in respect of these bodies should be enacted into law.
The architecture of the Bill includes a series of Henry VIII clauses, which enable primary legislation to be amended by simple affirmative order. Henry VIII clauses are devices that Governments need to deploy with care. Some people see them as rare and unusual beasts that strike at the heart of parliamentary supremacy. The Constitution Committee clearly states:
“Departures from constitutional principle”—
such as the Henry VIII clauses—
“should be contemplated only where a full and clear explanation and justification is provided”.
I am sure that the House would benefit from a full explanation from the Minister of why this is the case and, for each body listed, why it is appropriate for Parliament to cede this responsibility.
As noble Lords will be aware, in the normal course of affairs this House does not overturn draft orders that are subject to the simple affirmative procedure. However, the procedure that the Government are proposing so overloads the practice and principle of secondary legislation that we give them fair notice that the circumstances of the Bill are such that it may well be right in this instance not to follow that approach. In this we are in line with the conclusions of the most recent examination of the convention carried out by a Joint Committee of both Houses, chaired by my noble friend Lord Cunningham of Felling. The Joint Committee’s report, approved by all parties in both Houses, states that the House of Lords should not regularly reject statutory instruments but that in exceptional circumstances it may be appropriate for it to do so. One exceptional circumstance mentioned by the committee is when a parent Act was a skeleton Bill and the provisions of the SI are of the sort more normally found in primary legislation. This is exactly the circumstance that we are in with this Bill. It is precisely this kind of provision in the Bill that a Select Committee would be best placed to consider.
A Select Committee would be best placed to consider the inclusion of Schedule 7 to the Bill, and the organisations covered by it, over which the Government propose to station permanently the sword of Damocles, throwing their current operations and future prospects into doubt and confusion. A Select Committee would provide the opportunity for a range of interested bodies to be consulted and to give evidence to your Lordships’ House. The lack of consultation on the Bill is woeful, and a Select Committee would provide the Government with the best means of correcting that. It would allow them to fill in the gaps in their provision, including the provision of a regulatory impact assessment, and it would allow them to bring forward the financial assessment and figures that they are currently withholding and that we are trying to obtain through our tabling to the Cabinet Office, in relation to every organisation instanced in the Bill, requests under the Freedom of Information Act for the financial and employment information to be provided. If we succeed, I promise that we in turn will provide the information to Members of your Lordships’ House.
I stress one point in particular. We are aware that it is being suggested that we are playing politics with the Bill and are proposing a Select Committee simply to make things politically awkward for the coalition. This is not so. Certainly, we are opposing the Bill and this includes political opposition. However, we believe that proposing that a Select Committee consider it is the best way forward for the Bill, just as it turned out to be the best way forward for the Constitutional Reform Bill when, to the great benefit of the Bill, this House sagely referred it to a Select Committee. This is not playing politics but simply trying to make a bad Bill better—a Bill of huge importance to the many organisations cited and to the people whom they serve, protect and employ.
Therefore, as my noble friend Lord Hunt of Kings Heath will detail, we are entirely content to accept the amendment proposed by the noble Lord, Lord Maclennan of Rogart, in the bipartisan spirit in which it is offered. We believe that, just as with the Constitutional Reform Bill, which was with the Select Committee for about the same length of time, three months is ample for the Select Committee of your Lordships’ House to consider and propose improvements to the Bill before it comes to the House for a Committee stage. I look forward to the debate that we are about to have—
Perhaps the noble Baroness will allow me to intervene to voice a big concern that I have about quangos. The east end of Glasgow is the poorest area of the city and the west end the wealthiest. Most people whom I know on quangos live in the west end, and I think that the same would be true for many cities throughout the United Kingdom. I am concerned that, when we wring our hands and say that we want to do more for the poor communities, we never invite people from those communities to be on our quangos.
My Lords, the noble Lord makes a very valid point. I do not know whether such an issue would come within the scope of the Bill, and that is entirely a question for the Minister to answer. However, it is a very good point and one that we should take into consideration when thinking about the future of these non-departmental bodies, because they should reflect the needs and desires of the whole community.
The noble Baroness was talking about the Select Committee and the kinds of matters that it would deal with but, as she spoke, the list became quite long. Does she think that in three months it would be possible to look, for example, at all the bodies listed in Schedule 7? I could understand it if she were saying, “Keep it narrow. Keep to procedure and safeguards”, but is she considering something wider than that?
My Lords, I think that it should be a fairly narrow committee and that it should meet regularly. I do not think that it would be appropriate or possible, for example, to invite people to give evidence in relation to every single body mentioned in Schedule 7, but it would be appropriate for the committee as a whole to consider the entire schedule. It is a vast schedule listing a jumble of different organisations and I think that some order needs to be put into it. The Select Committee would provide an opportunity to take evidence from some of the most important quangos, if I may put it that way, included in Schedule 7.
I urge the Government to heed the wise words that we are about to hear in the debate. I also urge them to take full account of the genuine and extensive concerns of this House’s Select Committee on the Constitution and to take the opportunity to improve the Bill, as is sorely needed.
My Lords, this Bill has immense importance and the House, in its committee structure, has not yet concluded its deliberations on it. I understand that the Human Rights Committee will be addressing it and that the committee on delegated legislation is also to produce a report. That is entirely appropriate, as indeed was the consideration given by the Constitution Committee of this House, which produced what was certainly a solemn report. I have not in my time in this House, or indeed in another place, seen such a trenchant argument about the constitutionality of legislation.
It is, however, the case that all parties have recognised that public bodies can reach the end of their usefulness and that the previous Government had also considered the winding up of a substantial number of public bodies. When the Minister for the Cabinet Office, Mr Francis Maude, announced his intentions on 14 October this year, Liam Byrne said that this was, in a sense, carrying on the work of the Labour Government. Whereas 20 per cent of the public bodies had been considered suitable for winding up by the Labour Government, 25 per cent were considered suitable by the present Government.
Consequently, it appears to me that we are talking not so much about the ends of this legislation as the means. As these bodies are widely recognised to touch on the life of the nation, and the life of almost every individual in the nation, we should not act precipitately or without due regard to the consequences not only for those who serve in such bodies, of whom there are at least a handful sitting in this House today, but also for how it will impact on the wider public which, up to this point, have not been invited directly to contribute their views. It seems to me that we ought to proceed with due deliberate speed.
I am grateful to my noble friend for indicating, when introducing this Second Reading, that the Government are thinking very carefully and deliberately about possible responses to criticisms which have been made and which, no doubt, will be made when the Bill goes into Standing Committee, as it undoubtedly will. It is not the practice of this House to reject government legislation at Second Reading and it is not even intended to put that to the test today. However, it is appropriate to give a proper opportunity to the public and to the bodies themselves to animadvert on the consequence of what is being done. It is also appropriate to consider how we would go about winding up these bodies. It seems to me that change to what is proposed in the legislation is necessary in that to deliberate for an hour and a half on the winding up, on the restructuring or on the refinancing of some of these bodies, with no choice about amending the proposals, is not really an appropriately democratic way to proceed.
The role of this House to proceed according to the terms of the Bill is also called into question. As the noble Baroness, Lady Royall, mentioned, the convention is that this House does not reject, except in the most exceptional circumstances, a statutory instrument passed in another place. I do not think that we would wish to see that principle seriously diluted. Time for deliberation is required. Already there have been so many representations made by those who have been directly consulted, no doubt, in the internal review which was conducted in many departments of state, which the noble Lord, Lord Richard, thought had taken too short a time. We have received representations from bodies such as the Law Society of Scotland about how it will affect the union when matters that are devolved or partially devolved come up for consideration. We have received representations from those who are deeply concerned about the independence of quasi-judicial bodies—tribunals set up to determine, without pressure or influence from elected representatives, matters on factual grounds—that the procedures advanced by this Bill are inappropriate.
In introducing the debate my noble friend referred specifically to Channel 4. Channel 4 is a body which now has an axe hanging over its head. It will no doubt be very gratified to have heard what the Minister said about it today, but it remains a rather strange entry in Schedule 7 in view of the fact that it is not a public body in the sense that it receives any public moneys. Why, then, should it be so considered?
All these issues and many more particular cases will inevitably be discussed in Standing Committee, and that is entirely appropriate, but I am most troubled about the position of the quasi-independent judicial bodies, which I believe will find it extraordinarily difficult to operate if they have to satisfy the Government about their existence. There is undoubtedly a case for rationalising competition bodies; no doubt that was in the minds of Members on all sides of the House. But while that process is going on, it must be a matter of acute difficulty to deliberate, for example, on the matters that this House debated last Thursday: the possibility of News Corporation acquiring the remaining 61 per cent share of BSkyB. Ofcom is one of the listed bodies. Ofcom is now looking at that matter as a result of a reference from the Secretary of State last Thursday.
In tabling the amendment to the amendment of the noble Lord, Lord Hunt, which would follow a Second Reading of this Bill, it has been my purpose to ensure not the frustration of the purposes of the Bill in rationalising, reorganising or bringing to an end public bodies which have passed their sell by date but a focused consideration and structured debate on how best to bring that about, bearing in mind the normal democratic procedures. Many of those bodies have been established by primary legislation and were subject to a great deal of argument before they were set up. Many of them are subject to scrutiny by, for example, the Public Accounts Committee or the National Audit Office—both of which exercises I played a part in over a period of more than 17 years in another place.
If we are to refer the Bill to a Select Committee—I have not made up my mind whether that is entirely necessary, although I think it is appropriate—a great deal depends on the attitude of this place. I look forward to listening very closely to what contributors to the debate say. If it is to be referred, if that is the decision of the House, it is appropriate that we should indicate very clearly what we are asking such a committee to do. We are not asking it to look at the merits of each of the 481 public bodies which are under scrutiny as a result of the publication of the Bill; we would be asking it to consider the broad ways in which different types of bodies could be considered. I suggest that we should ask the committee to recommend by the given date the appropriate ways to implement the objects and purposes of the Bill to ensure that public consultation takes place before the Government’s proposals are laid before this House. If the committee is set up by the will of the House, it should also have the power to recommend appropriate parliamentary proceedings to achieve those results. That is a quite focused inquiry, and it seems to me that it would not necessarily delay the consideration of the Bill beyond that which may take place if we go through it clause by clause, public body by public body. We will receive representations about many of them.
I conclude by saying that I shall listen with immense interest to the views of colleagues and noble friends around the House. I hope it will become clear during the course of the debate that a consensus can be arrived at which will make the task of reform very much easier.
My Lords, I regard this Bill as a matter of grave concern to the judiciary. Before the Constitutional Reform Act, the Chief Justice of the day would have been able to come to this House and to address it wearing his heavy responsibilities now as the head of the judiciary in England and Wales. He can no longer do so. He can however write to both Houses, and he may or may not choose to do so. He can also speak before Select Committees of the House, and I know that he proposes to do so. However, this Second Reading has come before this House before he has had an opportunity to do so. What I am going to say is not what he would say but what I would have said if I was still Lord Chief Justice and had the task of placing before the House what I regard as real concerns.
The real concerns arise because the bodies in Schedule 7 include bodies that are intimately and directly concerned with the administration of justice in this country—the administration of civil justice and the administration of criminal justice. The whole purpose of the great efforts that went into making the Constitutional Reform Act the great Act that it is was to achieve the division between the judiciary and the legislature, which was the prior purpose, and still is the purpose, of the concordat.
I hope your Lordships will forgive me if I ask you to look at Schedule 7 very quickly with me, and I can refer to the sort of bodies that I have in mind. The Civil Justice Council plays a huge role in recommending the improvement of our civil justice. I have to confess an interest in that because it was a report of my own that led to the establishment of the Civil Justice Council. Then we have the Civil Procedure Rule Committee, which is traditionally presided over by the head of civil justice, the Master of the Rolls. Next I refer to the Criminal Cases Review Commission, the body which has the very delicate task of referring back to the Court of Appeal Criminal Division cases of possible serious injustice. It performs that task with great care and achieves satisfactory results. Then comes the Criminal Procedure Rule Committee, which is presided over by the Lord Chief Justice of the day and determines how trials up and down this country take place. It is a body that is carefully framed to be able to perform that role.
I pass over quickly—although they are also involved in the justice system—the Chief Inspector of Prisons and Her Majesty's Inspectorate of Probation, and I go down to the Judicial Appointments Commission. If I were to pick one body in Schedule 7 that certainly should not be put in Schedule 7, it is the Judicial Appointments Commission. It is responsible for almost every judicial appointment that takes place in this country. It was the subject of very deep consultation between myself and the then Lord Chancellor, the noble and learned Lord, Lord Falconer. The provisions contained in the Constitutional Reform Act reflect the solution with which the judiciary was content because judicial appointments were no longer to be made directly, as in the past, by the Lord Chancellor and because it was agreed that the role of Parliament as well as the role of the Government of the day in respect of appointments should be substantially reduced and take on a different framework from that which had existed in the past. I do not say that it is not possible to improve the statutory framework of the Judicial Appointments Commission, but surely something so important as that to our constitution should not be the subject of a truncated procedure that would be possible under this legislation.
I go on to refer to the Legal Services Board and the Legal Services Commission and finally refer to the Sentencing Council for England and Wales. The Sentencing Council for England and Wales has recently been the subject of legislation that was considered in great detail in this House because it was appreciated how that body again goes to the heart of our criminal justice system. The membership of the body is important and the way it operates is important. I cannot say that it may not be necessary in future to amend the legislation that deals with it, but surely something of that importance needs proper consideration and not the truncated treatment that it gets under the Bill.
I do not believe—I hope I am right in saying this—that these bodies under Schedule 7 will ever be subject to the powers contained in Clause 11 because Ministers will be aware of their important responsibilities under the Constitutional Reform Act to uphold the independence of the judiciary. I have to say to the Minister that I do not believe that this Bill, in so far as it refers to the bodies that I have indicated, is consistent with the Constitutional Reform Act. I do not believe that there was any proper consultation before these bodies were included. They were included because they properly can be described as quangos, but it is not because they are quangos that they should be subject to the truncated procedure.
As is indicated here, we are not concerned with purpose; we are concerned with means, and I urge the House to say that the means that has been adopted is constitutionally wrong so far as the partnership between the legislature and the judiciary that we value so much in this country. It is wrong as to the partnership between the Executive and the judiciary, and I ask the Minister, who so wisely said that he will consider representations, to bear in mind the concerns that I have expressed, which are based on my experience of being a member of many of the bodies to which I have referred and, for example, of being chairman of the Sentencing Guidelines Council. These bodies have a difficult enough job without having the sword of Damocles, which the Constitutional Reform Committee referred to, hanging over their head. However, if I have not succeeded in persuading the House of the importance of this issue, I would strongly endorse the suggestion that this is a matter to be given special treatment, as has been proposed by the noble Lord, Lord Maclennan.
My Lords, perhaps I may, on the second occasion on which I have addressed your Lordships’ House, start with a compliment on the procedures of this House compared with those of the House in which I sat for 35 years. I very much approve of the way in which this House deals with legislation and enables all its Members to play a proper part. That is why, when I listened to the noble Baroness, Lady Royall, introducing this matter, I had a wry smile, because at no time in the history of Parliament has there been such curtailment of speech, of discussion or of argument, than in the past 11 years in the other place. Very few Bills were ever discussed in their fullness and very few clauses were ever fully covered.
As a Member of Parliament, I found it increasingly difficult to explain to constituents that the reason why such-and-such a clause was so bad was because no one had discussed it. It had merely been pushed through. I found it difficult to hear the arguments put forward from that side of the House. But I agree with the noble Baroness that there is an important distinction, which I thought was most clearly put by the noble and learned Lord, Lord Woolf, between aim and means. Although I had to start by reminding the noble Baroness that no one on that side is in any position to talk about constitutional propriety after the experience of these years, there is an important point here which we must not forget.
It would be a pity if we missed the importance of the content of this Bill by not being able to come to an understanding about two mechanism issues that most of us see as important. One issue is to ensure that the simple method of affirmative resolution is given some substance, perhaps of a new kind, to enable proper discussion to take place and for a good deal of consultation to be gone through. It seems to me that that is not beyond the wit of those on the Front Bench to discern and put forward.
On the second issue, I take up the comment made by the noble and learned Lord, Lord Woolf. If one goes through this list of bodies, one sees that most of them hang together but some of them clearly hang separately. If that is the case, there must be a mechanism for being able to say about those bodies that something different happened. Indeed, my noble friend mentioned that when he talked about Channel 4. If that is true, I hope we will not miss the importance of this Bill.
There has become a real feeling in Britain that the ordinary people of the country are subject to the almost whims of a large number of bodies that are unelected and very often rather curiously chosen. I have some sympathy with the noble Lord who asked about the east and west ends of Glasgow. It is true that many people in the list appear to be sequential offenders. Some people seem to have spent the past 20 years sitting on different quangos. I find it difficult to understand how the qualities of a single woman should make her suitable for the organisation that looks after consumer interests. To be a deputy head of the Financial Services Authority, to run the Food Standards Agency and now to run the Civil Aviation Authority, she must be a remarkable person, for the choice has been continuous for what appears to be 20 years. I am not sure that the public quite understand that and I am not sure that I quite understand it.
Secondly, one has to face the fact of the outrageous behaviour of some of these quangos. I mention to noble Lords on both sides of the House a letter I received from an organisation that, at the time, looked after the supervision of boarding schools—a task that has now been passed on to Ofsted, another quango. This particular one wrote to me enclosing a stamped addressed envelope in case I wished to say something secretly to it about the school at which my daughter was head girl. I wrote back and said that if I wished to say anything about the school I would go to the headmistress and say it to her; that if she did not satisfy me on the matter I had the privilege of being able to take my daughter away from the school—a privilege that is accorded to those who are lucky enough, or who choose, to pay for their children’s education; and that I had not asked that quango to look after the education of my children. I had specifically chosen not to do that. I then wrote to the headmistress to point out that I had asked her to look after the education of my daughter and that if she took any notice of what the quango said I would decide whether I wanted to remain a parent at that school because I had not chosen the quango.
I wanted that part of the quango to go, but it has not: rather, it was transferred to Ofsted, which said that it would carry out investigations at the same time as the voluntary investigations of the Independent Schools Council or the Headmasters’ and Headmistresses’ Conference. Why is it doing it at all? Are we really saying that we have to have inspections of boarding schools when they have their own system and when the parents concerned are in a strong position to decide whether a particular school is properly run?
The Architects Registration Board is a body of no use and a great deal of interference. There is no reason why its responsibilities should not have been taken on by the RIBA—of which, I declare an interest, I am an honorary fellow—and for a special part of that to be made independent for the small number of architects who are not members of the RIBA. How have we left Natural England, with all its failings, in almost the same position as it was before? I have some problems about the substance of this because I do not think we have gone far enough.
However, there are some good things in the Bill that I would not like to lose. The suggestion that British Waterways should become a kind of third-sector body is extremely good and I hope that the Government will not destroy that by refusing to accept that the contract between it and the Government must be properly financed. I hope, too, that it will be able to overcome the reluctance of the Environment Agency to hand over its navigation role to British Waterways, where it is much more suitably placed.
Some independent non-governmental bodies ought to be seriously praised for the changes they have made, one of which is the Environment Agency. The noble Lord, Lord Smith, has done remarkably well in helping to show how a body that was increasingly thoroughly disliked in the countryside can be moved to one that is seen much more as an enabling body. Even given the tough line I take on this matter, none of us should ignore that fact.
The noble Baroness, Lady Royall, referred to the Forestry Commission. I was a Minister responsible for the Forestry Commission, which was the most difficult organisation I have ever dealt with in trying to move it in the right direction. I was desperate to make it more concerned with the environment but it has moved terribly slowly over many years. I object to those who say that within a proper legislative package private people cannot be just as good as nationalised bodies in looking after the environment. Indeed, the best examples of environmental protection come from private people.
I rather purposefully did not mention the name of the person concerned as I did not want to make it personal. I merely suggested that she was a remarkable personage to have done so many things, and I made no comment about the advice that she gave in any of those circumstances, although, if I were choosing a head of the Food Standards Agency, I must say that the noble Lord, Lord Krebs, was absolutely exemplary in the role.
On the Forestry Commission, I believe that much of the best conservation in this country is done by private people over private land which they care about because they want it to continue to exist and improve. Why can the noble Baroness not conceive of parts of the Forestry Commission being better run by different people instead of it all being run by the same people?
My Lords, the Bill is of great constitutional significance. I listened with great care to what was said by the noble and learned Lord, Lord Woolf. He will not be surprised when I say I agreed with every single word.
This Bill is not a good Bill, although, as a number of noble Lords have said, there are many things about the substance with which we will all agree such as the need to change, the need to update and the need to ensure independence and probity. However, the process has caused a lot of concern. Indeed, there are those who would argue strongly that we should, at this stage, oppose the Bill going any further. I disagree with that view. I think it is important that we should debate this Bill, but at the end of today the Select Committee might be the better course.
I had the privilege, as many of your Lordships will know, to speak from the Front Bench for the last Government for 11 years. During those 11 years I heard the House’s abhorrence of Henry VIII clauses again and again. I was not therefore surprised to see, in the manifestos of both parties that now form Her Majesty’s Government by way of coalition, comments making it clear that they wished to, in their words,
“restore the balance between the government and Parliament, by … making the use of the Royal Prerogative subject to greater democratic control so that Parliament is properly involved in all big national decisions”.
That was echoed by both parties. Therefore, when I came to read this Bill, I read it not only with the grave concern that has been alluded to by the noble and learned Lord, but also a great deal of surprised disappointment.
I do not think that any of us have read a Select Committee’s report written in such trenchant and clear terms. Having read that report I found myself unable to disagree with one word of it. It therefore leaves me troubled as to how the Government believe that in a democratic country we could allow this process—we are talking about the process of review—to continue.
As well as being pleased that the Select Committee on the Constitution had an opportunity to look at the Bill before today’s debate, I was pleased that that committee is truly representative of this House. Members from all sides of the House sit on that committee. At this stage, it may just be important to remind ourselves that that committee’s membership comprises: the noble Lords, Lord Crickhowell, Lord Hart of Chilton, Lord Norton of Louth, Lord Pannick, Lord Powell of Bayswater, Lord Renton of Mount Harry, Lord Rodgers of Quarry Bank and Lord Shaw of Northstead; the noble Baroness, Lady Falkner of Margravine; the noble and learned Lords, Lord Goldsmith and Lord Irvine of Lairg; and the noble Baroness, Lady Jay of Paddington, who leads and chairs the committee. Those are among the most eminent and sound Members in our House, but they are all known for their ability to disagree—quite wholeheartedly—not only with us but with each other.
Yet, in that Select Committee’s report, Members of our House of such eminence say with one voice that the Bill is wrong, that the tests are wrong, that the process is wrong and that we should think again. I, too, ask the Government to think again. I also ask that, when the Minister replies to the debate, he tells us whether he agrees with the analysis in the Select Committee’s report on the tests that it applies and the conclusions that the committee comes to. If he disagrees with that analysis, could we please have the basis on which that disagreement is founded?
I had hoped that the Minister might have had the benefit of having sit beside him the noble and learned Lord the Advocate-General, who might be able better to assist him on how one can undermine the argument of the noble and learned Lord, Lord Woolf, and those who will speak later. We have an opportunity to pause, to think about process and to do this better. This is not a good Bill—it is a bad Bill—but it can be improved, and I know that this House will help the Minister to do just that. I strongly urge the Minister to consider carefully what is being said by those who rarely speak.
My Lords, in his opening remarks, the Minister spoke about transparency of process, but I fear that the consequences of the Bill may in fact work against the transparency that is being sought. Having listened carefully to the words of the noble and learned Lord, Lord Woolf, and to his plea that we should maintain the principles of justice, I will focus on the concern in relation to the Coroners and Justice Act 2009. That Act was designed to bring justice, but I think that the proposed changes illustrate points that have already been made in the debate.
The Coroners and Justice Act was brought in because the coroners system was outmoded for the 21st century, yet the proposal to abandon the office of Chief Coroner has been subject to no consultation with stakeholders, no opportunity for parliamentary debate and no published evidence of cost analysis. The suggested costs of the setting up of the office were around £10 million, with operating costs of £6.5 million. I think that those costs could have been brought down by careful review.
I do not see how abandoning the office will bring about any real savings. Without such an office for appeals, the costs of judicial review—currently the most common route for bereaved families to appeal inquest decisions—will rise. The costing model never took account of the ongoing costs to the NHS and social care of those whose grief is compounded by a sense of injustice or of all the educational costs of those children who are disturbed in the web of family anger and unresolved grief.
Today we are wearing the poppies of the Royal British Legion, which campaigned long and hard for a fairer coroners system that we now risk throwing away as part of a schedule to a Bill. The Government have said that the charter for the bereaved will be pursued, but without the office of the Chief Coroner, set up independently as envisaged in the 2009 Act, the charter could be a hollow list of laudable claims that risk becoming platitudes.
The current system of post-mortems in this country is not fit for purpose. Coroners need medical advisers. The 2006 review showed that 26 per cent of all post-mortems had a standard that was poor or unacceptable. That means that more than a quarter were unfit to provide the information sought. We know that there are a few areas of good practice over tissue retention, such as Newcastle, but we know that in other areas families are denied the chance of an accurate diagnosis, especially in the cases of epilepsy or sudden adult death syndrome, with the implications for the relatives of the person who has died.
I cite those examples to illustrate briefly how justice is threatened when we abandon something that was long debated, particularly in this House, and was revised and improved and universally welcomed by those who have gone through the inquest process and by the professions involved, which wanted the coronial system modernised and made fit for purpose.
We are expected to grant these sweeping powers to Ministers to do as they wish with a long list of public bodies, all under Henry VIII powers. The report already spoken about from the Constitution Committee cites two tests that should be passed—first, whether Ministers should have the powers and, secondly, whether there are adequate procedural safeguards. It says that in their view the Bill fails both tests. This disregard for Parliament is of great concern.
My Lords, I support the call for more time for deliberation from the noble Lord, Lord Maclennan of Rogart, and I shall certainly support the amendment proposed by the noble Lord, Lord Hunt of Kings Heath, to refer this Bill to a Select Committee of the House.
A lot of the debate has focused on the grave constitutional issues that the Bill raises, but I should like to focus attention on what I regard as the worst of rushed decisions and bad public policy contained in the Bill. I take as my case study the abolition of the regional development agencies. I accept that there had to be cuts in public spending, but in a very difficult economic environment one would think that the Government would take especial care in refashioning the regional and local levers that they have to generate economic prosperity when they know that their spending decisions will result in loss of jobs. That kind of proper consideration has not taken place.
I freely accept that arrangements for regional economic development were not perfect. I speak as someone with an interest as the chair of Cumbria Vision, a body in a sub-regional partnership in north-west England. We were not granted authority or direct control over the money, and there was too much duplication, but arrangements could have been made to streamline delivery within the existing structures and save money. It would have been a much better course to have had radical reform of the development agencies rather than their outright abolition. So far as one can tell, that option was never seriously considered by the Government; instead, we go for the course of what I would describe as institutional vandalism, which this Bill contains. It is an example of bad governance and bad public policy. My suspicion is that it reflects the long-held prejudices of a former leader of Bradford City Council—the right honourable Eric Pickles, no less—against the more successful parts of the Yorkshire region. When government makes this kind of rushed decision, it is Parliament’s job to try to hold it to account.
There has been no evidence-based decision making in this case. A major study conducted by PricewaterhouseCoopers before the election showed that the RDAs generated £4 of benefit to the economy for every £1 that they cost. So where is the evidence base for public policy making in this decision? What is more shocking, in a way, is the way in which the Government have decided not to carry out any assessment of the impact of what they propose in the Bill. I have asked the noble Baroness, Lady Wilcox, on several occasions what the consequences for jobs and growth of the abolition of the regional development agencies are going to be. On 16 September, I got back the wonderful and depressing Answer:
“No such assessment has been made”.—[Official Report, 27/9/10; col. WA 553.]
Yet this dismantling of the economic capacity to promote regional development comes at precisely the moment when, because of the spending review, that capacity to generate private sector growth is needed.
The support infrastructure for economic development is being thrown into chaos. Most of the staff working on it have been put on 90-day redundancy warnings. At the time when the whole energies of government—national, regional and local—ought to be focusing on a priority task of what they can do most to stimulate new jobs, the government machine is going to be bogged down in wrangles about who owns the RDA assets of these bodies being abolished and what will happen to ongoing projects. There will be lots of work for lawyers and accountants but very few jobs created in the economy that will benefit ordinary people.
The RDAs, for all their faults, had built up an institutional capacity to assess projects and manage them effectively. I fear that that project management capability is being permanently lost as a result of the arbitrary decisions being taken in this Bill. Of course, the Government’s answer is that they have a policy; they are setting up something called local economic partnerships. The truth is that most of those are starting off with a blank piece of paper and very little capacity indeed to get anything done. It is a cover for the abolition of the agencies. There will be no central government funding of the economic development resource and my county, Cumbria, faces a very cruel choice between reducing care for the elderly and vulnerable, slashing school transport, or finding the funds to have a properly resourced local economic partnership.
As we heard from the noble Lord, Lord Shipley, in the public spending debate last week, the crunch facing local government will be especially severe with a 16 per cent cut in its grant in the coming year. There is really no alternative provision being made, which is why I oppose very strongly the institutional vandalism of the Bill. There is still time for the Government to think again and to allow a more rational and evidence-based approach to policy to be adopted. I hope very much that the House will provide the Government with that opportunity.
My Lords, I will not pursue the argument of the noble Lord, Lord Liddle, about assistance to industry and commerce at the local level. We will, I am sure, have another chance to debate the issue. Where I agree with the noble Lord is in paying tribute to what the regional development agencies have achieved over the past decade. However, I firmly believe—we will come back to this at another time—that the proposals from my noble friends in the Department for Business, Innovation and Skills and from my noble friend Lord Heseltine’s advisory board, on how regional economic growth can be provided, are excellent.
Like other noble Lords, I listened with great care to what the noble Lord, Lord Maclennan of Rogart, and the noble and learned Lord, Lord Woolf, said about the nature of the Bill and its influence on and control of judicial procedures. I have to say, though, that I do not think that this is a precipitous procedure. I shall try briefly to argue why I do not believe that the arguments against the Bill, which I strongly support, are not appropriate.
I want to say at the outset, having served a number of years in the other place, that over 30 years I have seen how in Parliament we deal with secondary legislation, particularly the affirmative procedure. We need to improve the procedure in two ways. I welcome what the Minister has said in suggesting that there might be draft orders, but I also believe that for affirmative orders a one and a half hour debate is not enough for certain important issues. The affirmative vote procedure has always been treated somehow as a procedural inevitability, and that is wrong.
I want to contribute by, I hope, reflecting accurately the views of the world of business and commerce. I declare an interest as chairman of PricewaterhouseCoopers’s advisory board, although that is not directly relevant. I also work with the South East England Regional Development Agency, which is not directly relevant to this debate either. The wider issues of the private sector are that we have had 30 years of almost inexorable growth of non-departmental public bodies. Her Majesty’s Opposition in this place and the other place have taken certain strides to try to reduce the number and improve their efficiency but very little has been achieved. We must now grip this opportunity firmly because over the past 30 years we have moved to well over 1,000 non-departmental public bodies and we need reform.
I am sensitive to the implications for justice, law and order and constitutional issues, but that does not affect the main thrust of my contribution. We are facing severe economic difficulties and the business community cannot understand the duplication and inevitable growth that we have seen over the past decade. It wants reform, and it is justified in doing so.
I see two advantages to the Bill. First, there is the importance of restoring ministerial responsibility. It is an anachronism that in this Chamber and in the other place one cannot directly question a Minister about the performance of a non-departmental public body, although obviously there can be correspondence. As a democrat I am in favour of improving that ministerial responsibility, and under the Bill that will happen.
Secondly, this is not a dramatic measure. I calculate that we are talking about one-quarter of more than 1,000 non-departmental public bodies that will either go or be merged. That is hardly a revolution. As far as I am concerned, with the obsolescence of some of them and the duplication and cost of others, sensitive ministerial decisions should come back to Parliament under the affirmative procedure. I would strongly argue for longer debates and debates on draft orders produced for your Lordships well in advance of those debates.
Do not let us have a Select Committee. We have been arguing about this for 10 years—in my experience, for almost 30 years. Let us get on with it. The Standing Committee procedure, in which many noble Lords who have spoken today will participate, and which I hope will be held on the Floor of the House, not in one of the committee rooms, should be a thorough debate. A Select Committee procedure would only delay matters, and would not be understood by the public. Let us have the courage to proceed. I support the Bill.
My Lords, I declare an interest as chair of English Heritage and as a vice-chairman of the national parks authorities. Both these bodies are identified in Schedule 7 to the Bill—the pending tray of the Bill, as it were. It is on the implications of Schedule 7 that I want to concentrate. I also declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, which will make its own judgment on the Bill in due course.
In the Bill before us, Ministers have simply asked your Lordships to agree to rewriting the constitutional balance between the Executive and Parliament. The Constitution Committee has been extensively quoted and it has made its position abundantly clear. What is at stake in this Bill is a testing point for this Parliament and this House. I was sorry to hear the Minister say—I believe—that he was unable to respond to the Constitution Committee’s report this evening and that he would get back in touch. I hope he will take advantage of my noble friend’s invitation to respond to the serious concerns expressed by that committee in its report.
The Bill is also extremely important because it will come to define the ambitions of a Government who seek to consolidate power in their own hands on an extraordinary scale, irrespective of normal parliamentary procedure. In the context of being an ex-Minister, I say that I stood at the Dispatch Box several times and tried to persuade the House of several modest proposals on powers to be given to Secretaries of State, usually to arbitrate in matters of policy. From both sides of the House there came cries of, “Too much power is accruing in the hands of the Secretary of State”. I was flattered by noble Lords who said that they trusted the Minister but would not trust my successors. I did not think we would ever debate a Bill that would require an accumulation of ministerial power on a scale that would not have been conceived of in the previous Parliament.
The Bill is about public bodies and they are just that. Over the past few months, in the frenetic atmosphere of the comprehensive spending review, all the virtues of public bodies and the public service they represent seem to have been denigrated, along with the integrity and astonishing commitment of the majority of people who serve on those bodies. Of course, we can all make a case for efficiency and rationalisation; we have and we should, and we should deliver on that. However, there has been no public debate on how our public bodies should best adjust to new challenges and no proper consultation. There is little dignity in the situation that many good public bodies now find themselves in. I regret that, not least on behalf of their staff, more than I can say.
Now we have before us a Bill that proposes to alter not just the present and predictable status and governance of organisations but their future status, existence, powers, functions and governance. It is as though the legislation that brought them into being—often detailed, hard won and hard fought, not least in this House—had never been introduced, and as though their purposes were not worth debating. It suggests that the time we spend scrutinising, correcting and improving legislation in this House is rather a waste. That is not something your Lordships agree with; we know how many hours we have spent debating the regulation of everything from child protection to energy security. We know how important it is and we know that the problem often rests here, where we solve it.
Worse still, we now have a Bill that brings with it a threat of future changes that are as yet unknown, either to the institutions identified or to the Ministers in place. For the first time a Bill proposes to hand powers to Ministers without requiring them to make clear what their intentions are or might be, without giving power to Parliament to challenge or change that. While I agree with much of what the noble Lord, Lord Freeman, said, affirmative orders do not allow this House to make changes. I sympathise with the Minister. The Bill is not of his doing; I am sure he wishes he had never set eyes on it. However, it is now for him to answer the questions that this House is putting to him. The Constitution Committee has said clearly that the Government have not made the case for why the vast powers in the Bill are needed. I am sorry to say that I do not think the Minister’s opening speech did so either, but he will have another chance at the end.
What lies behind the sweeping powers in the Bill? What is the problem that the Bill is intended to solve? Can the Minister give me any precedent for a Bill that attempts to give Ministers powers to legislate for the future without clear purpose or intent? The Minister has taken refuge in a raft of protections lifted from the legislative reform orders legislation, but I for one have absolutely no confidence in the ability of loose terms such as freedom and efficiency to protect vital bodies and their functions, especially when the rest of the protections offered in the legislative reform orders legislation have been left out of this Bill: for example, that it is not constitutionally significant. Why have those powers been left out? I invite the Minister to respond to that point.
My image of Schedule 7—its impact and the implications of unjustifiable uncertainty—is of a sort of ghastly waiting room where public bodies await some form of operation. They do not know what kind of operation it will be, whether it will be performed, whether the right limb or any limb at all will be amputated, or whether they will survive. The bodies in Schedule 7 may be abolished or changed without the democratic challenge and accountability of primary legislation, notwithstanding that in many cases their existence and purposes were decided by Parliament, and it is to Parliament that they are accountable as well as to government. These bodies may be altered in their name, powers or ability to employ staff. They may be transferred to another body or their functions delegated. In short, their functions can be dismissed, diminished or distorted without Parliament being able to lift a finger to help them. This is what government secondary legislation provides—no powers for this House to protect, challenge or change.
Let me turn to the list itself, which is the first challenge to common sense and comprehension. Can the Minister tell the House how the list for Schedule 7 was drawn up? The Explanatory Notes do not help. They say that the schedule contains bodies where there is currently,
“no policy intention to make changes to their status or functions”,
and that the justification for their inclusion is that they had been,
“subject to the review process”.
However, the review of public bodies that has just taken place could not have been more thorough. Each of the bodies reviewed has already passed the three critical tests, posed by the Prime Minister, of independence, expertise and accountability. Why should there now be any indecision over their future? If, as a result of that review, there is no policy intention to make changes, why are these bodies on the list at all? Why does the list exist?
The corollary question is: why does this list not consist of bodies that have not been reviewed and therefore might be reviewed in the future? If the Government have a definite intention to review a body again and make further changes, why do they not declare their own tests null and void? Why do they not openly say that more changes are needed and deal with that process honestly and transparently? Why should a body that has been through the rigours of the review and been found to be serving a proper and necessary function not be left now to get on with a difficult job of managing massive changes, often involving serious redundancies and redefining structures and jobs in very difficult circumstances?
A further clarification is needed. The Explanatory Notes suggest that bodies are on the list because any changes that would follow any future review process would require legislation. However, my understanding is that not all public bodies that would require legislation for changes to be made to them are in the schedule. Why are some bodies here and others not? We have a schedule that is neither consistent nor inclusive in its coverage, leaves some bodies out when others with similar requirements are in, and includes bodies where there is no intention to change but excludes others that have not been reviewed for the purpose of change. At best, this is dreadful drafting; at worst, it raises serious issues of motivation.
There is a compounding factor—a further twist—that reduces opportunities for scrutiny even further. To effect a change to a Schedule 7 body, there will have to be two orders; I refer to Clauses 11 and 12, both of which will require a resolution of both Houses. However, there is no requirement that they be laid at the same time. Noble Lords might therefore be faced with a debate on moving a body to one of the other schedules, with all the implications that that involves but without sight of the order that really matters—the one that will make the changes that will affect the organisation. Of course, policy intentions can change. A second order to effect the change may be for an entirely different purpose than was expressed to be the intent when the order moving the public body from Schedule 7 was debated. Can the Minister tell me why we need two orders? Why would a single instrument describing the effect of the change on the public body not be sufficient?
The Minister said that he understood the concerns of public bodies and the situation they face. These good public bodies are now living with a totally uncertain future, when at any time another review, another change, another structure, could be put forward—not for public debate, but by way of an order that invites this House to decide that future without knowing what it will mean. I believe that to be profoundly unethical, unwise and unconstitutional.
What about the impact on staff? Does the Minister agree with me that independence becomes something of a fiction when he appears to be constantly looking over his shoulder? This is not so much the big society as Big Brother. How can one remain independent of judgment? How can one retain freedom of action? How can one be prepared to innovate and take risks—all the things that public bodies do well and successfully—while living with the constant fear of more change?
I think the Minister already knows that the House finds this Bill unacceptable, if not deeply offensive, to its sense of constitutional propriety and democratic responsibility. I have never read anything quite as excoriating as the Constitution Committee’s report or heard a speech of the nature made by the noble and learned Lord, Lord Woolf, this afternoon. I know that the Minister is a good and thoughtful man, and I was grateful that we had the opportunity to meet. I hope that he will have the courage to acknowledge the deep flaws in the thinking behind the Bill, and in the Bill itself, and will join us in supporting the amendment in the name of my noble friend Lord Hunt.
My Lords, I shall make one point and refer to two examples of bodies facing questionable abolition. The first and overwhelmingly important point of this debate is the constitutional one. I speak as one who will probably provide some support to a number of the Government’s reforms. Indeed, I supported the merger proposed by the previous Government of specific public bodies, when such a view was not altogether popular on various sides of the House. Along with other noble Lords, I am therefore not speaking as one who believes that public bodies are always useful and must be saved—not at all. However, alongside some good ideas is the most extraordinary breach of this country’s democratic traditions and constitution. I speak, of course, about Clauses 1 to 6 and Schedule 7.
I want to add my support to the most eloquent remarks of my noble and learned friend Lord Woolf and the noble and learned Baroness, Lady Scotland. It is entirely unacceptable for any body established by primary legislation to be abolished or merged without the proper consideration afforded by the normal legislative process.
An issue of particular moment concerns the public bodies among those listed in Schedule 7 which have a specific role to hold government to account. The essence of these bodies is, surely, that they should be independent of government and of Ministers. Without that independence these bodies cannot do their job. How can an organisation hold the Government to account if that Government, without even proper parliamentary scrutiny, can turn round and punish that public body by reducing its powers? I hope that the Minister will, at the very least, remove from Schedule 7 those public bodies with a clear remit to provide independent oversight of the discharge of public functions.
Also, along with other noble Lords, I ask the Minister to think again and amend the Bill to ensure that no organisation created by legislation will be abolished by statutory instrument. I refer to just one example of the bodies listed in Schedule 1, which, under Clause 1, may face abolition by a Minister without using the legislative process. I refer to the Security Industry Authority, which regulates the security industry. I raise this example because it illustrates the lack of care for the protection of individual citizens which, I fear, is reflected in some elements of the Bill.
Having been the first chairman of that body, I am aware that the industry includes many honourable and effective organisations. However, it also attracts villains who set themselves up as security guards working from home, use only a mobile telephone number and cannot readily be identified. These people are hired by unsuspecting landlords to prevent parking on private land, for example. Without regulation, these security officers fail to provide proper notices warning the public of the controlled parking; they clamp vehicles and, as the price of releasing them, charge exorbitant fines. I have had reports and letters sent directly to me about these guards terrorising members of the public into paying utterly unacceptable and exorbitant fines.
This is just one example of why I feel that some of the Bill has been put together in far too great haste. Have the Government undertaken a full impact assessment of abolishing this regulatory body and indeed all the others referred to in Schedule 7? Can the Minister assure the House that this body, established by legislation, will not be abolished under the Bill? The consequences are far too serious for such a decision to be made by ministerial order.
Secondly, I draw the attention of the House to the fact that the bodies listed in Schedule 7, as the noble Baroness, Lady Andrews, pointed out, are not the only public bodies up for abolition or transformation. I know of at least two others and fear that there are probably many more. I will refer to just one because of lack of time. I understand that an announcement was made in July that the General Social Care Council will be abolished and that some of its functions will be taken over by the Health Professions Council. There was no warning of this, even to the chair of the Social Work Reform Board. There has been no consultation. The abolition will be dealt with in another Bill, not in the Public Bodies Bill. I should be grateful if the Minister could explain why some bodies are included in this framework while others are dealt with by other means.
In his opening remarks, the Minister said that the Government are not including bodies such as Ofcom and Ofwat in this exercise on the grounds that the Government do not wish to interfere with important regulatory functions. Therefore, how does the Minister justify abolishing the regulatory body for social work? We understood that the Government were concerned to raise the standards of social work—and, most particularly, of child protection—in this country. Is the abolition of the regulatory body the right way to achieve this? Surely not. I give this as an example of the apparently destructive actions being taken by the Government in some cases.
I reiterate that I will support a number of elements of the Bill as long as the procedural issues can be resolved. My worry is that this example is indicative of the way in which other public bodies will be dealt with under the Bill unless we manage to resolve the problem. I hope that the Minister will be able to reassure the House today.
My Lords, I will make general and specific comments on this bad Bill. The sweeping powers contained in what amounts to a Henry VIII clause should raise profound concerns of general principle for your Lordships, not least in terms of increasing further the authority of the Executive over the legislature. My specific comments relate to Clause 11 of the Bill, and to Schedule 7—the list of bodies subject to the power to add to other schedules.
I declare an interest as chairman of the British Library, because the British Library Board is included in the schedule. The considerable disquiet felt by the British Library is clearly shared by many other bodies listed in Schedule 7. As others have said, the Bill grants extensive powers to Ministers to abolish, merge, modify the constitutional arrangements of, modify the funding arrangements of, modify or transfer the functions of, or authorise delegation in respect of, many public bodies listed in its schedules. The Government have simply not made a case for why the vast range of statutory bodies affected by the Bill should be abolished, merged or modified by force only of ministerial order, rather than by ordinary legislative amendment and debate in Parliament.
Other noble Lords have already referred to the report of the House of Lords Constitution Committee. The committee noted that most of the public bodies to which the Bill applies were created by statute or royal charter. The committee stated that the Bill vastly extends Ministers’ powers to amend primary legislation by order, and that such Henry VIII powers need to be clearly limited, exercisable only for specific purposes and subject to proper parliamentary oversight. The committee went on:
“Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.
Furthermore, many of the bodies for which the Bill was designed have been the,
“product of extensive parliamentary debate and deliberation”,
and, as such, the committee could not see,
“why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies”—
an issue raised by the noble Baroness, Lady Meacher.
The Institute for Government has also raised serious concerns of principle about what it calls the crucial catch-all provision included in Clause 11, where any body named in the comprehensive list of organisations set out in Schedule 7 can, by ministerial order, be moved into a schedule to be abolished, merged or modified. Like the noble and learned Lord, Lord Woolf, the institute notes that the schedule includes bodies with quite delicate public functions which require them to act, and be seen to act, independently of government with self-confidence. To quote the institute:
“The worrying feature of this clause is how it is likely to affect the dynamic of the relationship between the government and those bodies which have been established to be at some distance from Ministers, because they need to be able to perform their functions in a way that puts them beyond suspicion of Ministerial interference ... The danger is that these bodies will become more circumspect in exercising their duties”,
and that is a very serious danger. The House will, I think, readily recognise that the granting of such wide-ranging powers carries inherent and profound dangers. Perhaps the Minister will now take this opportunity to provide the House with a clear and convincing justification for such sweeping powers. I do not believe that he gave that justification in his opening speech.
I turn to my specific comments. If the Bill were enacted, it would, in extremis, grant Ministers the powers, at the stroke of a pen and without parliamentary scrutiny, to abolish the British Library and other bodies listed in Schedule 7. Noble Lords who are familiar with the British Library—and I am sure that many are—will know that it was established as the national library for the United Kingdom by Act of Parliament in 1972 following the White Paper of 1971 and in response to the recommendations of the 1969 report of the National Libraries Committee, and that it brought together a number of national institutions, including perhaps most notably the library of the British Museum, which itself was founded by Act of Parliament in June 1753. To grant Ministers powers potentially to abolish by order an institution created by statute with such a very long and illustrious history would, ipso facto, damage the sovereignty of Parliament. Although I am sure that this is not the current intention behind the powers proposed in this Bill—and I am sure that the Minister will tell us that in his closing speech—it cannot be sensible to open up such a possibility.
I now turn to the criteria for the inclusion of the bodies in Schedule 7, and I urge the Minister to take this opportunity to set out, in the interests of transparency, what those criteria are. They are completely opaque. Again, I declare my interest as the chairman of the British Library Board. Noble Lords will be aware that in the statement of the Minister for the Cabinet Office of 14 October, the British Library was identified as a public body to be retained on grounds of,
“performing a technical function which should remain independent from Government”.
It is, I believe, of some interest that the national museums and galleries were similarly designated by the Minister for the Cabinet Office in that statement, yet the British Library is included in Schedule 7 to the Bill on grounds not stated, whereas the museums and galleries are not.
The British Library is one of the UK’s national collections and in most important respects it stands alongside the other national collections. This is reflected in statutory terms in the Museums and Galleries Act 1992 and, in its drafting, the British Library Act reflects elements of the British Museum Act as a result of the incorporation into the British Library of the unique riches of the collection of the BM library. Taken together, that serves further to underline the inconsistency in the application of criteria for inclusion in Schedule 7. I would also be grateful if the Minister could explain why the Arts and Humanities Research Council is included in Schedule 7 but the other research councils are not. Again, it seems inconsistent.
To conclude, I urge the Government to reconsider Clause 11 of, and Schedule 7 to, the Bill. There are very powerful arguments against the wisdom and parliamentary propriety of granting such sweeping powers.
My Lords, last Thursday, all sides of this House very much welcomed the Government’s statement that they were referring to Ofcom the acquisition by News Corp of the remaining shares in BSkyB which it did not own. In the course of my remarks, I ventured to raise the issue in regard to the Bill. I said, “What if Ofcom, which is listed in Schedule 5 and in Schedule 7, no longer exists?”. I was very glad that the noble Baroness, Lady Rawlings, who is in her place today, said that I need not worry on that score. She said:
“Ofcom, with all its responsibilities, will stay”.—[Official Report, 4/11/10; col. 1811.]
What did she mean by “stay”? If she meant that it will stay until 31 December, which is the date by which it has been asked to complete its present inquiry, that is not a very substantial promise. If she meant that it will stay indefinitely, the question arises, why is it in Schedule 5 and in Schedule 7?
There is uncertainty upon uncertainty. I use that as an example and it is applicable to so many different bodies. This Bill is not simply causing anxiety, although I need not develop that point because it has been mentioned several times. As the Constitution Select Committee of this House has said, in effect this is an unconstitutional Bill; it is very rare for us to see such a critical and condemnatory statement as has been made by the Select Committee relating to this Bill.
Questioning the work, questioning the costs and questioning the purpose of many public bodies is perfectly legitimate and justifiable and a very proper objective of any Government. Quangos may have outlived their purpose and outlived their usefulness but an attempt to condemn to oblivion or to change, in an enabling Bill, a whole host of bodies across the whole spectrum of government, without consultation, seems wildly unjustified. Involving so many bodies, the Bill leaves huge uncertainty and, as my noble friend Lady Andrews pointed out, uncertainty among all those bodies listed on the five pages of Schedule 7.
One set of bodies mentioned is the Office of Fair Trading and the Competition Commission, listed under Schedule 5. The Government have said, ex cathedra, that these two bodies are to be merged. The uncertainty here is not about whether there will be any change but about what it will mean to merge such bodies in terms of the investigatory functions. Are those functions of the Office of Fair Trading to be performed by the same people as are to perform the quasi-judicial functions of the Competition Commission, or is this new body arising from the merger to be newly constituted? The Government have said that the Office of Fair Trading is to lose its consumer protection role, which has so often helped to inform the office in its investigatory competition work. In any case, where is the competition protection work to go to? It cannot go to the National Consumer Council because it, under the name of Consumer Focus, is being abolished. Apparently, the Office of Fair Trading’s consumer role is to go to the trading standards offices of local authorities and the citizens advice bureaux—both excellent bodies which do excellent work.
None the less, this is an important shift in the world of consumer protection to local and charitable organisations. The chief executive of the Trading Standards Institute, a splendid man called Mr Ron Gainsford, described this as a,
“huge leap of faith. I just hope it isn't a leap in the dark”.
There must be a question whether a local trading standards office or citizens advice bureau will have the resources, the expertise, the training and all the rest of it to deal with international companies such as big banks. The organisation Which? has pointed out a tremendous weakness if everything is transferred locally and there is nothing left for consumer protection work nationally.
I agree with much of what the noble Lord, Lord Borrie, said. I think that these bodies should be examined in particular. However, where did the precedent come from? I point out to the noble Lord what happened to the Royal Fine Art Commission, of which I was chairman for 15 years, and which cost £750,000 to the taxpayer, as opposed to the £15 million which CABE now costs the taxpayer. How were we abolished? Not by constitutional discussion in this House; we were abolished by fax by the Minister concerned. That was a disgrace and we do not want that to happen again.
I do not know the subject to which the noble Lord is referring, but if what he says is the case, that was a disgrace; this Bill is a disgrace. It is doing it in a different way, but it is a disgrace and unconstitutional.
When the noble Lord, Lord St John, intervened, I was just about to refer to the excellent speech by the noble and learned Lord, Lord Woolf, who has just returned to his place. Those of us who were here when he spoke will know that he cited a large number of bodies connected with the judiciary listed in Schedule 7, and said that if the Lord Chief Justice of the day could be present in this House, as used to be the case before the Supreme Court was set up, no doubt he would have been very critical.
One of the bodies to which the noble and learned Lord did not refer was the Administrative Justice and Tribunals Council. I think that the reason why that was not referred to is that there are no ifs or buts about that council: it is to be abolished. The other bodies to which he referred are in the pending tray, the uncertain tray, of Schedule 7. I hope that he would agree that the Administrative Justice and Tribunals Council—its forerunner was known as the Council on Tribunals—has always done an excellent job in surveying the field of administrative tribunals and now has the rather larger job of the whole area of administrative justice. Without a word of explanation, the Government put it in the schedule for entire abolition. Can the Minister give us an explanation?
My Lords, it is a great pleasure to follow my friend and fellow Middle Templar. Perhaps I may begin by declaring what may be thought to be an interest in that I am a member of your Lordships' Delegated Powers and Regulatory Reform Committee, which will be considering this Bill tomorrow.
Since this is a rather torrid debate for my noble friend the Minister, I should like to begin by offering him not simply a word of support for himself but a very warm measure of support for the Government's objectives in this Bill. Like other noble Lords today, I distinguish the objectives from the means. I refer, as others have, to what was said on 14 October by the Minister for the Cabinet Office and it is worth saying again:
“The landscape for public bodies needs radical reform to increase transparency and accountability, to cut out duplication of activity, and to discontinue activities which are simply no longer needed”.
I find this entirely commendable, and it is probably rather long overdue in some instances. It finds expression in Clause 8, which says that a Minister in,
“considering whether to make an order under sections 1 to 6”—
which are the effective, some might say the killer, sections—
“must have regard to the … objectives [of] … achieving increased efficiency, effectiveness and economy in the exercise of public functions [and of] securing appropriate accountability to Ministers in the exercise of such functions”.
There is an additional statement of policy which I do not think has been referred to today, again in a Written Statement, which says:
“All remaining public bodies will be subject to a rigorous triennial review to ensure that the previous pattern of public bodies often outliving the purpose for which they were established is”—Official Report, Commons, 14/10/10; col. 27WS]—
brought to an end. I am sure that that would be salutary, too, and in these straitened days can hardly, I should have thought, be reasonably opposed.
The Government's objectives cause me no problem at all: I welcome them. What upsets me, as with other noble Lords today, are the means by which they are going about achieving them. We have heard today some profoundly important speeches—important and troubling speeches. All Governments are attracted by the lure—some are seduced by it—of legislating more summarily than the procedures of primary legislation would permit. All Governments are attracted by that for rather obvious reasons.
What are these allures? It is worth our having them in mind, although of course they will be familiar to so many of us. However desirable a debate on the policy or effect of the order may be thought to be, debate will be limited in either House to one and a half hours save in the most exceptional circumstances. I shall come back in a moment to what my noble friend Lord Freeman said about that, something with which I warmly agree. But that is the rule at present. The order will never be amended because there is no power to do so, and in practice by convention it will hardly ever be rejected. I believe—I have not checked it myself—that this has happened only twice in your Lordships' House in the past 45 years.
All Governments find these allures seductive, but I am aware of none who have succumbed on the industrial scale of the Bill before us tonight. Of course there are myriad occasions when to make use of subordinate legislation is entirely proper, wholly reasonable and for the public good—where, for instance, the order-making power is tightly circumscribed by the statute from which it derives; the Minister’s discretion is closely defined and not left, as in this Bill, entirely at large; and the use of parliamentary time in primary legislation would be quite unnecessary. Those are the sorts of occasions where the use of subordinate legislation is entirely sensible. But that is not this case.
On the contrary, this case has attracted the most trenchant condemnation. We have heard it repeated several times today, so I shall spare your Lordships, and the Government in particular, the pain of hearing it again. It is the most extraordinary thing that a Bill should be brought forward with that blast, as it were, ringing in their ears. I should think it is unprecedented, but it is not entirely surprising. Most of the public bodies to which the Bill relates, some 340, have derived their existence and their functions from parliamentary authority. It is an absolute certainty that in the vast majority of them the process by which that authority was secured included lengthy debate preceded by substantial consultation and probably involved quite substantial amendments time and again accepted by the Government. This is the cut and thrust, the to and fro, of parliamentary democracy, and it leads to acceptable and practical legislation.
These debates could now be removed by order in what the Government will consider a proper case without the benefit of anything like that. They are all absent from any requirement upon the Minister seeking to make an order in respect of any public body listed in Schedules 1 to 6. When one considers the character and calibre of many of those bodies, this is wrong in principle. I never thought to see power taken that some of the functions of the DPP for England and Wales could be transferred by order to a Minister, subject only to a short debate on an affirmative resolution.
If the Bill is to prosper, my noble friends should think hard about, as a minimum, introducing a requirement for a form of super-affirmative resolution. I know that the Minister referred encouragingly to this when he introduced the Bill. This was illustrated in the Legislative and Regulatory Reform Act 2006. It would require Ministers first to lay an order and then to take account of the consultation that follows it and committee reports received about it and only thereafter could they bring the order back for approval. That is really important. It is also extremely important that my noble friends should consider very carefully what my noble friend Lord Freeman said about enlarging the standard period of an hour and a half. Why should there be such a restriction? I agree entirely with what he said.
In addition, the Bill needs to specify the functions that might be abolished or amended and who the desired transferees of functions might be. At present, ministerial discretion is quite unconfined. These improvements seem to be a minimum.
Lastly, I come to the worst bit of all. By Clause 11, which we now know so well, Ministers are permitted by order to bring any of the 150 bodies listed in Schedule 7 into the ambit of the preceding six schedules. We heard the sort of judicial bodies that are caught by that in a compelling speech by the noble and learned Lord, Lord Woolf, which was endorsed entirely by the noble and learned Baroness, Lady Scotland. The Explanatory Notes rather engagingly confess at paragraph 87 that at the time of going to press there was,
“no policy intention to make changes to their status or functions”.
In other words, Clause 11 is included in the Bill on a “just in case” basis. That is no basis for taking Henry VIII powers or, indeed, many other powers. The clause is inappropriate for subordinate legislation, and it should be removed from the Bill.
My Lords, I must declare an interest as chair of the Human Tissue Authority, one of the bodies affected by this Bill. As part of my intervention, I hope to be able to elicit from the Minister some answers to questions about the way in which the proposed legislation will affect the authority and its work. I also have some general concerns about the Bill, which reflect many of the concerns expressed by Members across the House during this debate, and which I hope the Minister will be willing to address when he replies.
The desire to improve public services and to deliver them ever more efficiently and effectively is common to all Governments. Earlier this year, my own party, when it was the Government, set out its own plans for streamlining public administration, which included reducing the number of arm’s-length bodies. So there is no real difference, it seems to me, in the objectives of the current and the previous Government in this field. It is clearly the case that such bodies should be regularly reviewed, their functions and continuing relevance questioned, and their effectiveness assessed. But the way in which this is done can have far-reaching effects.
The Government have determined that the functions of the Human Tissue Authority and those of the Human Fertilisation and Embryology Authority will come under the aegis of the Care Quality Commission and, possibly, other bodies. We have begun already working to that end. We have moved with speed to initiate discussions with the other bodies involved and to work with the Department of Health to ensure that the ground is properly prepared for any such transfer of functions.
It will scarcely surprise noble Lords that when I read the sixth report of the Select Committee on the Constitution, the venerable Select Committee of your Lordships’ House charged with examining all public Bills, I became alarmed. The Select Committee raised serious concerns about the way in which the Government were proceeding on this Bill. It stated—other noble Lords have referred to this—that the Government are,
“pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation”.
It sets two tests against which this extension of powers should be judged and clearly states:
“In our view, the Public Bodies Bill [HL] fails both tests”.
This is not a good start to the winning of public confidence.
The Human Tissue Authority was set up because of a crisis in public confidence. The Human Tissue Act was the response to the Alder Hey and Bristol hospital scandals where, noble Lords will recall, there was unauthorised retention of babies’ organs and tissue. It was the response to overwhelming grief, as well as outrage from parents and parent groups. The Act was not a knee-jerk reaction. It took many months of parliamentary time to get right, and it introduced clear rules which continue even now to allay public concerns about tissue retention.
While huge progress has been made since the HTA’s regulations came into force, and the sectors we regulate have now, on the whole, a good record of meeting safe and ethical standards, it is clear, when I talk to families who were involved, that the Human Tissue Act, and the existence of the authority, have been a guarantee that those concerns have not been ignored. Such issues are, and remain, deeply sensitive. We have seen such fears raised again in last weekend’s media. If the authority is to be changed or merged, it must be done in a way that does not destroy the public confidence that has been so hard-won. I hope that the Minister will reassure the House that the primary legislation which generated that confidence will not be undermined by the use of what your Lordships’ Select Committee clearly regards as a parliamentary manoeuvre.
I turn to some specific questions for the Minister about the impact of these changes on bodies such as the HTA. The HTA has built up considerable professional expertise in relation to the sectors it regulates. This has helped to build the confidence of the public and professionals. Recent data show that this confidence continues to increase. This is largely due to the clear focus of the Human Tissue Authority in the highly specialised area of tissues and organs. Therefore, my first question to the Minister is this: how will the Government ensure that the clear focus on this “extraordinarily sensitive and complex” area—the Government's own words—will be maintained in any transfer of responsibilities? My understanding is that the Government do not intend to use the Bill to change the substance of the regulatory framework within which the HTA operates, nor that of the Human Fertilisation and Embryology Authority. Indeed, I believe that this would not be within the scope of the Bill; it would be good to have the Minister's confirmation of that. But if that is the case, the body to which functions are to be transferred—the Care Quality Commission—would have to operate under its own current legislation, as well as that of the HTA and the HFEA. How will the Government ensure that this does not compound the likely loss of focus on the safe and ethical use of human tissue and organs? Of course, the Government may intend to legislate to harmonise the legislative frameworks under which the CQC will operate, but if there is to be primary legislation in this extraordinarily sensitive area, when will it be brought forward and what effect will this have on the timetable for changes?
On organ donation, last year the HTA approved well over 1,000 living organ donations and I am delighted to say that the numbers continue to increase. However, the ALB review acknowledges that this responsibility would not sit well with other bodies. How can the authority be assured that its respected role in relation to organ transplants will be maintained? The HTA has to make sensitive, ethical decisions about organ donation. Its lay and professional authority members bring great wisdom to these questions; how will that wisdom be maintained and retained?
Perhaps these and other questions that I have can be resolved in discussions with the Department of Health and with the other bodies. However, many of them seem to be matters that ought to be of concern to Parliament, as they were when the legislation was introduced. The Government are quite clear that they want the work of the HTA to continue; the authority is committed to ensuring that public confidence will be maintained. It would be a betrayal of the work that produced the human tissue legislation and of the thousands of families that the legislation has served well if the Government took any action that undermined confidence that human tissues and organs are used safely, ethically and always with consent.
My Lords, I am grateful to Ministers for having met us on several occasions to listen to our concerns and to indicate their intention of improving the Bill by introducing essential safeguards and proper parliamentary procedures.
Everyone agrees with the objectives declared in Clause 8 of,
“achieving increased efficiency, effectiveness and economy in the exercise of public functions”,
whether those functions are performed by public bodies or government departments. Everyone agrees on the need for,
“securing appropriate accountability to Ministers”,
by the various public bodies within the Bill’s reach. What causes concern about the Bill is not its policy but, as the noble and learned Lords, Lord Woolf and Lord Mayhew of Twysden, and the noble Lord, Lord Deben, have said, the means chosen to give effect to the Bill’s legitimate aims. Legitimate ends do not justify unconstitutional or disproportionate means, especially where they erode Ministers’ accountability to Parliament and put at risk aspects of the rule of law and fundamental rights and freedoms, whereas the Bill as it stands—I emphasise “as it stands”—contains inadequate safeguards against the misuse of Ministers’ delegated powers.
The Constitution Committee has explained some of the main objections to the Bill as it stands and I agree with the analysis and conclusions of that powerful committee. The modern test of Henry VIII clauses, reproduced in the Constitution Committee’s report at paragraph 5, is whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards. For the reasons given by the Constitution Committee, the Bill as it stands fails both tests—again I stress “as it stands”.
The safeguards in Clause 8(2) operate “if the Minister considers” the matters in Clause 8(2)(a) and (b). However, the Minister is not required to act with a sense of proportion and the exercise of discretion under Clause 8 as it stands would not be readily susceptible to effective judicial review. Whenever I see the phrase, “if the Minister considers”, I am reminded of Lord Atkin’s comment about the language of Humpty Dumpty.
The useful Library notes on the Bill record the reaction of the Institute for Government, now led by the noble Lord, Lord Adonis, as giving a cautious welcome to the Bill but emphasising, in the words of Sir Ian Magee, that the Government have to,
“develop more robust criteria going forward with a better framework, so that each quango’s role, purpose, funding and accountability are clear to all who come in contact with them”.
He continues by saying that,
“there needs to be a robust business case behind each of the decisions to ensure that money won’t be wasted through the merging process, and to ensure key skills are not lost, if the function is to carry on elsewhere”.
That is plain commonsense, but the Bill’s design and the process envisaged for its implementation do not yet ensure that this will be put into practice.
In his Statement in the Commons, the right honourable Francis Maude, the Minister in charge of the Bill, explained that:
“A body should only exist as a quango if it meets one of three tests, to which my review has subjected all existing bodies. These tests are:
Does it perform a technical function?
Do its activities require political impartiality?
Does it need to act independently to establish facts?”.
“This is a work in progress”.—[Official Report, Commons, 14/10/10; col. 27WS.]
Those tests are not included in the Bill, are not mentioned in the Explanatory Notes and there has been no taxonomy of the bodies affected by the Bill—that is, there has been no proper analysis or classification of their similarities and differences. Instead, the Bill seeks sweepingly broad executive powers and the inclusion of a long list of all the quangos which might become subject to ministerial interference, control or abolition. Schedule 7 lumps together bodies both which do and do not satisfy the Government’s three tests.
Yet it is a principle of the common law that like cases should be treated alike and unlike cases should be treated differently, but that basic constitutional principle has not been followed in relation to Schedule 7 or the Bill as a whole. For example, the Judicial Appointments Commission, the Children’s Commissioner, the Legal Services Commission, Her Majesty’s Inspector of Prisons, the Independent Police Complaints Commission and the Equality and Human Rights Commission are included in the schedule, even though all of them perform technical functions, their activities require political impartiality and they need to act independently to establish facts.
It is interesting to recall that those not in the schedule—thank heaven—include Her Majesty’s courts and the Parliamentary Commissioner for Administration. Presumably someone in the Cabinet Office recognised that it would be even more outrageous to include those but, as a matter of principle, one wonders why the Parliamentary Ombudsman is not there whereas the Local Government Ombudsman is. As many have said already, their inclusion in Schedule 7 would weaken their independence and the willingness of qualified people of independence and integrity to serve on them as they would be vulnerable to ministerial interference if they acted in a way causing displeasure to Ministers or civil servants. For the reasons given by the noble and learned Lord, Lord Woolf, the Bill as it stands weakens the rule of law and the independence, indirectly, of the judiciary.
The Equality and Human Rights Commission has been singled out for different forms of ministerial interference in a big way. The power to modify constitutional arrangements under Clause 3, to modify funding arrangements under Clause 4 and to modify or transfer functions under Clause 5 may all be applied to that commission. I have a particular interest in those provisions because I helped Roy Jenkins to create equality agencies in the 1970s and worked closely with the previous Government to include in the Equality Act 2006 safeguards to prevent unnecessary ministerial interference with the commission’s independence. The Equality Act 2010 gave the new commission a more extensive remit and greater enforcement powers than its predecessors. In order to be able to challenge the actions of Government, as well as those of the private sector, that commission needs to be independent and the UN Paris Principles require that. The 2006 Act puts the Minister under an obligation to have regard to the desirability of ensuring that it is under as few constraints as reasonably possible in determining its activities, timetables and priorities.
The Joint Committee on Human Rights, on which I serve, has commented on this and I will not detain your Lordships by repeating what it has said about it. However, there is a widespread view that the commission has been poorly led and managed and that Ministers and civil servants in the previous Government are responsible for having permitted that. What are needed are not legislative constraints included in subordinate legislation but the appointment of a well qualified chief executive, new commissioners and at last some administrative controls now lacking to ensure value for money and the effective discharge of the commission’s important functions. That can be done without amending legislation. I hope that it will be done and be done soon.
Instead, what the Bill does is to include powers to enable Ministers, if they wished, to hobble the commission and to jeopardise its independence. That would be a retrograde step—I am sure it will be disclaimed—but it would if done be deplored here and abroad. The Minister has stated in his view that the provisions in the Bill are compatible with the European Convention on Human Rights and the Explanatory Notes state:
“The Government does not consider that the Bill directly engages any convention rights”.
That is literally true. However, the Bill does undoubtedly indirectly engage convention rights, as I am sure the Minister will accept. The public bodies within the Bill’s reach include many such as the EHRC whose functions secure and promote the UK’s obligations under the convention and the other international human rights covenants and conventions by which the UK is bound. Those bodies are listed quite indiscriminately in Schedule 7 as bodies and offices which may be transferred to other schedules, including some performing judicial or quasi-judicial functions and upholding the rule of law in ways that are, and can be seen to be, independent and impartial. The Joint Committee on Human Rights has asked the Government for a full human rights memorandum and I have raised this with the Government. We need it by 23 November when we will meet, and I am sure, give some kind of report.
Finally, it is essential for the necessary safeguards to be included in the Bill at the earliest opportunity and avoiding any unnecessary delay. That should enable the Bill to complete its passage through this House with all deliberate speed. I would favour a reference to a Select Committee if, and only if, its terms of reference were strictly confined to process and safeguards, and strictly time-limited to report not later than, as my noble friend has indicated in his Motion, 28 February 2011. I say not later than and I would hope earlier than that, and only if the Minister were unable at the conclusion of the debate to give the necessary assurances as to how he would achieve the same objective at the first meeting of the Committee of the Whole House by tabling a series of amendments that would do that job if necessary and do it more quickly. We should try to avoid what is necessarily happening in this debate, which is that special interest groups and special concerns would be raised one by one in Committee endlessly, day after day, because the Bill itself did not contain the necessary safeguards or machinery to be able to refer this forward.
When I saw Ministers, I reminded myself and therefore mentioned to them two things that I learnt from Roy Jenkins—that very wise Minister—when I worked with him. The first was when I asked him, “What advice can you give me about how to do my job?”. He said, “Anthony, I would like you to argue to solutions and not to conclusions”. I believe that is what we should be doing today—we should not be arguing to conclusions but to solutions. The second thing he said was, “Always dig a trench in a defensible position”. The worst thing you can do is to dig a trench in an indefensible position, be flushed out, dig another one and then be on the run. I believe it is essential today that this House digs a defensible trench which the Government and the House can hold, rather than going through a series of further debates like this quite unnecessarily.
My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for the introduction of this Bill. I also declare to the House that I am a member of a public body. I am a member of the Electoral Commission but that particular body does not feature anywhere in this Bill.
I must add that I am not very happy about the Bill. Noble Lords will be aware that I am a relatively new Member of this House. However, that does not stop me having considerable concerns as to how the Bill is constructed; how it seeks to make major changes to bodies or abolish bodies that were set up following detailed individual pieces of legislation passed by Parliament and avoid the rigours of parliamentary scrutiny in doing so; and how it proposes to hand considerable power to Ministers to abolish or make wide-ranging changes to bodies through the statutory instruments process.
This is not good government. This is the Conservative Government seeking to force through a skeleton Bill that gives Ministers wide-ranging powers: powers to abolish; powers to merge; powers to modify constitutional arrangements; powers to modify funding arrangements; powers to modify or transfer functions and powers to delegate. However, in the case of Schedule 7 we have no idea what the Government are planning because they are not telling us—all they are getting in Schedule 7 is power. All we have got in Schedule 7 is the heading: “Bodies and offices subject to power to add to other schedules”. I would suggest a better heading to Schedule 7 would be: “Power to possibly do some of the above, we are just not saying yet and will only tell you when this Bill is law”.
That is not good government. That is rushed government. That is ill-thought-out government. That is Government without the confidence to come to the Floor of this House and argue the case properly. What is so depressing is that this is just the sort of Bill that cries out for pre-legislative scrutiny. I will be interested in hearing the Minister’s response as to why that has not happened. It certainly cannot be because of pressure of time in this House. There has been a marked lack of legislation in this House since the general election. I have no problem with the Government saying we need to look at public bodies. We need to ensure we are getting value for money. We need to make sure what they are doing is necessary. We need to change their arrangements, refocus them or if the function is no longer required, abolish them. What is wrong here is the way it is being done.
One of the things that strikes you when come into the House for the first time is the level of expertise and experience on all Benches and all sides of this House. There are people who have served in a whole variety of fields. I sure if the Government had looked, they would have found an abundance of talent they could have drawn on to form a proper consultation, a proper pre-legislative scrutiny, but instead we get this.
I think we have lots of questions, lots of worries and very few answers. What is Schedule 7 about? I am very unhappy with the explanation I have had so far from the Minister and I fear that my noble friend Lady Royall might be right and the coalition want to have the sword of Damocles hanging over these bodies. If not, why cannot the coalition as a bare minimum get rid of Schedule 7 and state what it is considering doing with these bodies? If as the noble Lord said, in many cases there is no intention of doing anything to these bodies, then remove them from the list completely. I hope the Minister can respond to that point as well.
Where the Government are not saying what they propose do with specific bodies but want such wide-ranging powers you begin to wonder what is going on and what the agenda is. For example, the Low Pay Commission was established in 1998 as an independent body to advise the Government about the minimum wage following the passing of the National Minimum Wage Act 1998. Why is that on Schedule 7? I hope this is not some attempt by stealth to stop the minimum wage increasing, by abolishing, or changing the remit or having the function transferred into the hands of Ministers. The minimum wage has been a great success and has helped people go out and earn a living and earn a wage, and be confident that there is a minimum rate of pay and if their employer seeks to pay below that action can and will be taken. The Government need to be clear what they are proposing to do.
Another body in Schedule 7 is the Gangmasters Licensing Authority. It was established in 2005 and regulates those who supply labour in areas such as agriculture and food processing. I note the noble Lord is titled “Lord Taylor of Holbeach”. If that is after Holbeach in Lincolnshire, I am sure he will be fully aware of gangmasters in Lincolnshire. If there was a proposal not to cut back on these bodies and maybe to merge these two bodies, that should appear in Schedule 2, not in Schedule 7. We could then have a sensible debate about the merits of that proposal.
Not knowing the intention of the Government while they ask the House to agree these proposals is the problem. I hope that the Minister will ensure that, as we consider the Bill, all his colleagues come to the Dispatch Box to explain the intentions of their departments. The House deserves no less from the Government.
Under Schedule 1, the only body that I wish to mention is the Security Industry Authority, which came into being following the passing of the Private Security Industry Act 2001. The Security Industry Authority licenses the private security industry, which covers security guarding, door supervision, close protection and cash in transit among other things. The authority has raised standards and driven out criminality. What a change there has been in clubs, where all the door staff are displaying their credentials. You can be assured that they are fit and proper persons. Who wants to go back to the time before the industry was regulated? I hope that the Minister can explain who will take over those functions and responsibilities and that he can assure the House that the industry will continue to be properly regulated. Can he further explain what will happen if the devolved Administrations do not agree with the proposal, as my noble friend Lord Foulkes asked earlier? Having different systems in place in different parts of the UK, especially in respect of the security industry, seems to me a recipe for disaster.
In conclusion, I look forward to the contributions of other noble Lords, as there is great concern not only on these Benches but on other Benches in this House. The Minister and his colleagues have a considerable task ahead of them.
My Lords, I was the departmental minder—otherwise known as ministerial adviser—for two quangos, the secretary to a third and adviser on the creation of a fourth and on the disbanding of a fifth. During that time, it certainly occurred to me that all non-departmental public bodies should be required to redefine themselves every so often, so I have some sympathy with the Government’s feelings.
The Government put forward, in Clause 8, two sets of principles that should govern changes to such public bodies: efficiency, effectiveness and economy—that familiar trio—and accountability, which is certainly no less important. En passant, the Minister also mentioned independence, which is not in the Bill. Independence should be one of the chief grounds for a function to be non-departmental, as the noble Baroness, Lady Meacher, said. Many public interests must not be subject to the party-political ebb and flow or to the opinion of the Minister of the day nor should they be captured by well funded lobbies, as was touched on by my noble friend Lady Blackstone and by the noble Lord, Lord Lester. Why have the Government not included independence in the criteria? Perhaps it goes without saying that another rationale for an arm’s-length body is expertise, which is usually included in the rules for appointment to such bodies. Where do the Government cite expertise in their criteria?
I will focus on some bodies that contribute significantly to the citizen’s quality of life and well-being. They inhabit a place where the market, as it now works, does not deliver, so there is a need for a public interest framework. I mean primarily: the Design Council, which has already been redefined outside the Bill; the Commission for Architecture and the Built Environment; and the Homes and Communities Agency. At present, the market does not deliver good design in those fields, not because good design is not effective but because design effectiveness produces externalities beyond the market arrangements of selling products. For example, a well designed housing estate produces benefits in enjoyment of amenity, health, educational attainment and reduction of crime—in short, well-being. Such benefits can be, and indeed have been, measured, but they require a longer-term and more extensive analysis than the market likes and they often accrue to a different budget from that of the purchaser. The Government’s impact analysis for the Bill takes no account of such things. It states that the Bill has no impact on human rights, no direct impact on rural communities, no direct impact on sustainable development and no impact on competition. Just look at the externalities of bad design, and there will be impacts on all of those.
The Government have put forward different ways of redefining the three organisations that I mentioned. The proposal for the Design Council was potentially an acceptable solution. Its new charitable status means that it will retain independence. It remains free to draw on expertise. Its tasks will remain the essential ones. The proposal should indeed be acceptable, as the changes follow on from wide consultation and carry out the recommendations of the Temple review. However, not all the recommendations have been implemented. For instance, the Design Council needs funding for the transition and, without that, the Government’s solution will miss the boat. Will the Minister assure the House that there will be full implementation of the Temple review? I know that the noble Lord, Lord Bichard, who is unfortunately unable to be here, shares my view both on that and on what I will say about the Commission for Architecture and the Built Environment.
The Commission for Architecture and the Built Environment is another body whose function is irreplaceable in our current context, in which planning authorities have very varied comprehension of good design, powerful developers build, sell and move on and citizens have little access to expert help. However, the Department for Culture, Media and Sport has decided not to renew CABE’s funding—a very small £4 million—after the current financial year. What will the cessation of CABE cost, including the externalities to which I referred? I might add that the abolition of the regional tier of government will exacerbate the crisis in housing development, so something like CABE will be all the more necessary. If we lose that function, even outside its present form, our citizens risk having dreary and insecure places in which to live, work and learn. They deserve better from those whom they voted for.
The Homes and Communities Agency will still exist, although it sits under a sword of Damocles in Schedule 7 to the Bill. The agency is to be redefined with the purpose of becoming a more strategic body. To do that properly, the agency will need to retain its core duties, including the obligation,
“to contribute to the achievement of sustainable development and good design”.
Will the Minister confirm that that will remain an objective? How will he ensure that a reduced HCA has the resource to enable good design for ordinary people’s homes, bearing in mind that such things must be done locally, in local circumstances?
Another inhabitant of Schedule 7 is the Architects Registration Board, which others have already mentioned. Surely the Government know that there must be a register. Registration is not only a European requirement but is necessary for the protection of customers. It would be wrong if anyone could set up and practise as an architect without credentials. I hope that the Government will tell us what their solution is.
Finally, the Bill does much more than provide implementation powers for redefining functions. As the Select Committee on the Constitution said, the Bill will take powers away from Parliament for participating in those redefinitions in an unprecedented way. Noble and learned Lords have spoken eloquently on the serious constitutional deficits of Clauses 11 and 12 and so I will not rehearse those arguments. However, I very much agree with what they have said. Where is the accountability here, let alone the effectiveness? I am with those who think that there is much more work to do on the Bill.
My Lords, before speaking, I should draw attention to my interests as a non-executive board member of Ofcom and as a former board member of the Office of Fair Trading, although I will speak this evening only about the general principles of the Bill rather than about the specific proposals that will affect those organisations. I am also a member of the Delegated Powers and Regulatory Reform Committee, which will discuss the Bill tomorrow, but I stress that my remarks this evening are my personal views at this stage.
Having said that, let me say to the Minister that I am a strong supporter of the Bill, both on the substance of its proposals and on the form in which those have been produced, albeit with the appropriate safeguards that I hope that the Minister will be able to offer to the House in his concluding remarks. I am a strong supporter, because the reality is that there has been an unacceptable and unaffordable progressive rise in the costs and burdens of these kinds of bodies and their impact on the economy. It is easy to set up new bodies as a knee-jerk reaction to the latest concern and, once established, it is very difficult to get rid of them. What is more, the very worthy people who take up roles in these bodies with all the best intent will always find additional things that they can do whereby they can add—they believe—to the social welfare of their fellow citizens. On the margin, they are probably right but, when you add that up collectively, the collective burden becomes unaffordable. We are not talking only of the direct costs—the £38.4 billion that my noble friend mentioned—but of the indirect costs, because every individual sitting in a regulator creates work for four or five people in the private sector who respond to their e-mails, telephone calls and consultation. This becomes, with all the best intentions, a huge burden on the wealth-creating part of the economy.
These bodies should be properly subject to a zero-based challenge on a regular basis; they should be challenged to justify why they are there and whether what they are doing continues to be relevant. The reason we need this Bill is because we have not done that effectively. We have a backlog because no Government have had the courage to address the problem and I applaud this Government for picking up that challenge. Past attempts at deregulation have often failed because Governments have attempted to do them in small steps, step by step, and have run into the barriers of vested interests and long consultation periods, which means that they inevitably run into sand. So we need a bold approach if we are going to deal with this problem. The Government need to get on with it. In the process, some decisions may be imperfect, but I hope that we can minimise those during the passage of the Bill. Delay or indecision would be even more damaging.
I turn briefly to the form of the Bill, which I back in terms of implementing decisions in orders subject to a number of safeguards. When one thinks of the alternative, many man-years of Bill time went into creating these institutions. If we were to introduce primary legislation for every institution to make the amendments considered in this Bill, we would tie up Parliament for a decade. It is just not feasible. This is an exceptional circumstance and we need exceptional measures. Of course, Henry VIII powers should be used sparingly, and I am the first to be hawkish when looking at their abuse when they are inappropriate. However, this is an exceptional scale of reform, and delay and uncertainty are unacceptable, not only because of the cost but because, in many cases, the Government have announced what they intend to do. The longer we drag out that period of uncertainty for the institutions involved and those working for them, the harder we make it for them to continue to do an effective job.
I propose an additional principle that we might adopt when looking at the Henry VIII convention—a presumption in favour of deregulation. In other words, I suggest that we might look more tolerantly at the use of Henry VIII powers when they are used to remove or reduce regulations than when they are used to increase or add new functions or powers. This Bill is about reducing bodies, functions and regulations. On that basis, with appropriate debate in this House through its passage, I believe that delegated powers are acceptable as a practical way in which to achieve the ends. One caveat is that it is unclear from a strict reading of Clause 5, which talks about modifying functions—although I know that the intention of the Bill is deregulatory—whether that explicitly excludes the power to increase functions or create new functions. It would help me if the Minister could confirm that the Bill will be used only to reduce functions or transfer functions that already exist under primary legislation. If the Bill needs amending to clarify that, it might be helpful to do so.
The other point that has been raised repeatedly is on Schedule 7, which implements Clause 11. I share concerns that if economic regulators are in that schedule or bodies exercising judicial functions, uncertainty over those functions is unhelpful for those being regulated and exercising those judicial functions. My noble friend in his opening remarks implied that the powers under Schedule 7 would not be used in those circumstances, but it would help the House if he could confirm that the intent of the schedule would not be applied to the functions that have an economic regulatory function or a judicial function. Again, it might be helpful if the Bill was amended to clarify that.
I turn to the form of debate and the proposed amendment. Most of what is proposed with these bodies has already been set out by the Government in one place or another in the past few weeks. I cannot think of a better place in which to debate those various bodies and the proposals for them than the Floor of this House. If the Bill is passed as amended, individual affirmative Motions would then be brought back on every individual proposal, and I agree with those who have suggested that there may be opportunities to strengthen that affirmative process where it was called for. But nothing has been said in this debate to suggest that the passage of and debate on this Bill would be improved one jot by sending it off the Floor of this House to some small Select Committee. Let us spend more time on the Floor of the House, with the expertise of the House, rather than trying to create some delaying process.
To conclude, this is a bold Bill but I believe that it is an essential and necessary one. If we believe in the importance of removing the costs and bureaucracy that have grown up through excessive regulation, Parliament should not lose its resolve in giving the Government the powers that they need to get on with the job.
My Lords, reticent as I am to depart from the conclusions of the Constitution Select Committee of your Lordships’ House, which first considered this Bill akin to Henry VIII powers, I respectfully suggest that at least the dissolution of the monasteries brought much needed finance to the Crown’s coffers, whereas this Bill fails lamentably to achieve even that. In all other respects, I concur with their conclusions.
I have three points—first, on the lack of public and parliamentary scrutiny; secondly, on the potential move of functions from independent to political control, with the exclusion of any lay, consumer or user voice in decision-making; and, thirdly, to point to some examples of the dangers in the Bill, primarily in Schedule 7.
First, this Bill gives legislative powers to Ministers, including powers to merge or abolish bodies, without the rigours of parliamentary scrutiny let alone public debate. It gives Secretaries of State powers to change organisations simply by secondary legislation. Parliament plays a vital role in safeguarding rights and freedoms, and it is parliamentary scrutiny that allows Bills to be amended and gives interested parties, the public and the press time to consider the implications of proposed laws.
Many bodies in the Bill were the product of extensive parliamentary debate, as has been said, yet such parliamentary deliberation would be denied to proposals to abolish or to redesign such bodies. Clause 11 is a particularly pernicious clause, giving Ministers powers to add any of the 150 Schedule 7 bodies to the schedules permitting their abolition, merger or modification, simply by statutory instrument, as outlined by several noble Lords. The Bill effectively renders these bodies liable to abolition or restructuring at the behest of the Executive. The Bill fails to allow Parliament to consider the suitability of the Schedule 7 groups to be moved into a list of organisations which are then subject to such wide powers. As the Constitution Committee emphasised, many of those bodies, as has been said earlier, were created by primary legislation and therefore by the will of Parliament. It is entirely inappropriate for such bodies to be scrapped or fundamentally reformed at the imperative of a Minister without due regard to parliamentary process.
Secondly, the Government have made it clear that they expect Ministers to take responsibility for what is done in the name of us all, and not leave it to unelected bodies. Yet there are many decisions taken on behalf of civil society which should not rest in the hands of elected politicians but be taken with a degree of detachment and independence, balancing competing and, often, individual interests for the good of the whole. Just as we would all flinch at the idea of electing our judges, so we should flinch at measures which potentially interfere with decisions on the rule of law, ethical decisions and other legal, personal and intimate social matters.
The Government’s presumption is that any state activity should be undertaken by democratically accountable bodies, with a quango existing only if it meets one of the three tests already alluded to—including whether its activities require political impartiality. The Minister used “impartiality” in opening this debate. Yet the very purpose of most quangos is to take issues out of politics; thus, they do not come under direct ministerial control but operate at arm’s length from Ministers. That, surely, is their very strength.
As your Lordships know, many of the affected bodies have a mandate to provide not just impartial but independent oversight of vital areas of public sector activity. The wide-ranging powers in the Bill may lead to the abolition of organisations and offices which play a vital role in holding public bodies or central government to account, as suggested by the noble Baroness, Lady Meacher, and other speakers. The Bill makes no provision for safeguarding the continued independence of such bodies, as emphasised by my noble friend Lady Whitaker. There is a big difference between independence and impartiality: it is the independence to be able to say, without fear or favour, what decision you have reached.
Thirdly, therefore, I turn briefly to some examples of the bodies over which the axe will not fall but, perhaps even worse, potentially hover for years. There is the Homes and Communities Agency. As the noble Baroness, Lady Eaton, of the Local Government Association said elsewhere, the acid test will be whether Ministers allow decisions to be taken at the front line by locally elected people who know their neighbourhoods or simply replace unaccountable quangos with unelected civil servants in Whitehall. There is Ofsted, a non-ministerial government department reporting directly to Parliament. That constitutional basis protects the role of the chief inspector, whom neither the board nor the Secretary of State can remove, thus ensuring that her reports and actions are protected from accusations of undue influence. Ofsted’s remit includes advising the Secretary of State, such advice being provided without fear or favour exactly because of the organisation’s constitutional position. Given that Ofsted’s actions can have serious consequences, its protection from allegations of undue influence is vital. Ofsted inspection has a key role for schools operating with greater autonomy, where independent inspection becomes central to enabling services to be accountable.
I turn to NEST, which is a pension scheme established under the Pensions Act 2008. Its trustee board—I declare a recent interest, as until last month I was a member of it—has a fiduciary duty to its pension members, whose money it holds on trust, not to the Government, save in regard to any loan from government. Yet the Bill would enable the Government, with two clicks, to abolish, merge or alter this pension scheme without so much as new legislation, consultation or proper parliamentary scrutiny. Its resources belong to its members, not the state, yet the members would have no say in any such move.
The noble and learned Lord, Lord Woolf, mentioned the Legal Services Board; here I declare another interest as chair of the Legal Services Consumer Panel, which that board funds. The Legal Services Board is, of course, funded not by the Government but by lawyers. The board’s creation in the Legal Services Act 2007 was the product of extensive parliamentary debate. Your Lordships will recall the importance given to the independence of the Legal Services Board—independent from government—in the passage of the Bill. That was particularly emphasised in the Joint Committee examining the Bill that was chaired by the noble Lord, Lord Hunt of Wirral. The independence of the regulator overseeing barristers and other lawyers is key to their reputation, both here and abroad, for independence before the courts, to the rule of law and to its separation from government. Yet with a couple of statutory instruments this robust, independent board could be swept away.
There are many worrying powers in the Bill that fly in the face of normal lawmaking. “Think again, Government”, is the best advice I can proffer.
My Lords, I believe that there is widespread support in this House for the Government’s desire to cut public spending. There is also much support for a hard look at all public bodies, with a view to abolishing or merging them where justified. What worries many of us, and certainly concerns me, is the indiscriminate way in which all public bodies are being considered in the one long, fierce slash of this Bill. A list has been drawn up by the Government of what is to be done: this one to be abolished, that one to be merged and so on. All right—one has to start somewhere and that is a starting point, but it is only a starting point for the serious work that must surely then begin, which is the sober, rigorous examination of each proposal on its merits.
First, what is needed is, at some point, some careful costing. The aim of the Bill is to save money, but will it in fact do that? Reorganisations are notoriously expensive. To take the HFEA, the body that I have been most familiar with in recent years, under the proposals in the Bill there will not even begin to be any savings until the next Parliament, even if there are any then, which is highly doubtful. This highlights the need to examine alternative ways of saving money. The HFEA is in the process of moving to lighter-touch regulation. It has its own firm proposals to make savings in both running costs and staff. I believe that, if we are to do our job as a House, it is essential that there is serious examination of the cost implications of each proposal together, where applicable, with the alternative proposals for saving money, not just in the short term but for the long term. I do not see how we can be said to have done our job without such a financial cost-benefit analysis.
Secondly, we need someone other than the government officials who drew up the original proposals to test the criteria that have been used against every individual public body affected by the proposals. These proposals are, again, a good starting point, but someone wants to ask about each public body, “Does it perform a technical function? Do its activities require political impartiality? Does it need to act independently to establish facts?”. It is necessary to have a serious and impartial look at each public body in the light of those questions. The answer to them cannot simply be left to the people, however worthy, who put forth the original proposals for abolition and merger.
Again, I can speak only from first-hand experience of the HFEA, which came about, as most of your Lordships know, as a result of the report that the noble Baroness, Lady Warnock, published in 1984. After days of parliamentary debate, it was established as part of the legal framework of the Human Fertilisation and Embryology Act 1990. Then, again, after days of debate its existence was reaffirmed as part of the legal framework for work in this area that was provided for by the 2002-03 legislation. That is without including the Select Committee, days of debate on embryo research and other aspects of the work. If Parliament has thought this area so critical that it was worth weeks of its time to set up a regulatory body with very tight regulation in place, it hardly seems responsible to dismember that body with one quick snip and without serious consideration of the implications of so doing. As the Select Committee on the Constitution put it in paragraph 14 of its report, many of the bodies are,
“the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies”.
The HFEA is not alone in being concerned with ethical issues. In my view, every area of life has an ethical dimension. However, the ethical dimension of the work of the HFEA, concerned as it is to preserve the special moral status of the early embryo, is of particular sensitivity and of acute concern not just to Roman Catholics but to the wider public. As we know, the issues that it has had to consider in recent years have been highly controversial and there is every reason to think that there will be new issues in the future that are no less controversial. Almost every committee meeting of the HFEA has to have a lawyer permanently in attendance to ensure that the Act is being strictly adhered to, while a number of the decisions made in recent years have been challenged up to the highest court in the land.
It is the integrated work of the HFEA that enables it to do the work that has been entrusted to it by Parliament. The clinics, the researchers and the vast and complex database are held together under the law to ensure that the will of Parliament is carried out. If the HFEA is dismembered, regulation will become fragmented and much weakened and the likelihood of slip-ups and accidents is likely to increase. There is no reason why there should not be a closer alignment with the Care Quality Commission—the HFEA has in fact developed its own proposals for that—but the circumstances of infertility licensing are so specific and individual, and that work differs so fundamentally from the work undertaken by the CQC, that the two cannot simply be merged.
I apologise for speaking only about the HFEA in relation to a Bill that concerns so many other bodies with which your Lordships are concerned. However, the general principle that I have applied to the HFEA should be brought to them all, one by one, with careful and detailed consideration. That cannot be done simply by the House in Committee; it needs a Select Committee. As it stands, the Bill is so sweeping in its scope that it is difficult to see how it can have the confidence of the public. However, I believe that careful examination by a Select Committee would mean that people were confident about its final proposals. The Minister is concerned about undue delay, but the amendment tabled by the noble Lord, Lord Maclennan of Rogart, to the amendment sets a clear limit on that delay and, in my opinion, should be supported.
A number of your Lordships have raised the question of how such a Select Committee should go about its task. It has been widely recognised that there is already an overlapping consensus about a good number, perhaps the majority, of public bodies. The Select Committee could quickly note these and then move on to give detailed consideration to those where there is real concern about the proposals in the Bill. While I know that the Committee stage in this House will be invaluable, that process would be greatly helped by work done first by a Select Committee meeting under a strict timetable.
My Lords, I declare an interest as the architect and first chairman of the Youth Justice Board, which is one of the bodies listed for the chop in Schedule 1 to the Bill. I should also confess to my past as a quango culler, originally as a civil servant after the 1979 election and, more latterly, as a Health Minister in 2003-04, when I conducted my own pruning exercise on Department of Health arm’s-length bodies. I have a bit of previous in this area but, even in my most hubristic ministerial moments, I never thought that I could get away with as sharp a piece of legislative practice as this Bill, with its inconsistencies, lack of impact assessments and granting of sweeping powers to Ministers to dismember what Parliament has authorised.
The Labour Government recognised that the periodical pruning of arm’s-length bodies was needed, both in my arm’s-length body review and indeed in the Smarter Government document published in December 2009. My own exercise reduced the number of Department of Health arm’s-length bodies from about 40 to 20 over three to four years and the annual cost of running them by over £1 billion. We were not afraid to be radical, but the changes were made with appropriate parliamentary scrutiny of all the legislation involved, including the proper use of primary legislation, and there was little by way of expensive compulsory redundancy, which, in the Government’s haste, may turn out to be a rather expensive aspect of some of their changes.
At the end of last year, the previous Government committed to merging or abolishing another 120 arm’s-length bodies across government, which would deliver at least £500 million. In fact, I thought that their estimate was quite conservative. Again, that would have been done in a measured way. The coalition Government have simply taken what Labour proposed but added some bigger fish, with little justification for their decisions and with no proper public consultation or parliamentary process involved. The issue before us today is not whether the pruning of arm’s-length bodies is needed but how it is done.
Many arm’s-length bodies have an important role to play in the government of a complex society such as our own, even if they are too often unfairly demonised. They are particularly necessary when we wish to secure special technical knowledge and skills, the objective gathering of data or the securing of political impartiality. This was largely recognised by Francis Maude in his Written Statement on 14 October and, indeed, again by the Minister today, but when you look at the way in which this collection of bodies has been assembled in the Bill, it is not terribly clear that these criteria have been applied to them. The Government do not seem to have clearly lived by their own rules.
As I recall, the Government started this exercise with the perfectly respectable aim of saving money, but they seem to have found that a bit more difficult to do than they expected. We now seem to have moved to a different set of justifications—of, I suggest, a slightly more dubious nature—about taking functions back inside government departments and improving transparency and accountability. As someone who worked as a civil servant for a quarter of a century in government departments, I advise them to think of some better arguments than that. We still do not know what the costs and savings are of the Government’s proposals and we need to get a better handle on that issue if it is at the core of some of the proposals.
Having been rather unkind to the Government so far, I compliment them on their approach in the Department of Health, where in July Andrew Lansley produced a pretty coherent review of health arm’s-length bodies. I suggest that other departments would have done well to emulate that. I do not necessarily agree with all the changes that he proposes in that document; I will particularly want to challenge and probe further areas such as the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to which the noble and right reverend Lord referred. However, at least I can understand the Government’s thinking on the health arm’s-length bodies. That coherence of thinking seems to be lacking in many of the other departments and I am left with an uneasy suspicion that often they were asked to produce a quota by the Cabinet Office. Even in the Department of Health proposals there is the risky proposition of tampering with the world-leading Human Fertilisation and Embryology Authority, which was set up after enormous parliamentary scrutiny. We are also going to tinker again with the Human Tissue Authority, which was a matter of great sensitivity, as I know to my cost because I had to take it through your Lordships’ House.
A casual handing over of power to Ministers in areas as sensitive as these is neither good nor efficient government. This House’s own Constitution Committee has set out why this Bill is such a constitutionally unsound way of doing what the Government quite reasonably want to do—reduce the number of arm’s-length bodies. I have no problems of principle with that intention. It is fair to say that, in my experience, some arm’s-length bodies outlive their usefulness and need a decent burial. Many engage in mission creep because their sponsoring departments have been too weak to prevent their doing so, financially or otherwise. Some rather obstinately decline to merge their back-office services. Ministers too often set up a new body without proper consideration of the costs or the option of giving new functions to an existing body. All this is part of the cut and thrust of government; it goes on under successive Governments. From time to time it is perfectly reasonable to get out the secateurs and do a jolly good prune.
However, that does not mean giving Ministers carte blanche to reform, merge or abolish nearly 500 bodies without more parliamentary involvement than this Bill provides for. It also seems extremely odd to have another 150 bodies listed under Schedule 7 and kept in a state of unending uncertainty as to precisely what may happen to them. This seems to me, as a long-standing public sector manager, hardly a recipe for encouraging good performance by a stable and secure staff. The noble and learned Lord, Lord Woolf, and others have done a pretty good demolition job on Schedule 7, without needing much more from me.
Finally, I refer quickly to the issue of bodies that we know the Government have it in mind to change but which do not appear in the Bill. I will take just the high-profile example of the Audit Commission, which appears on page 5 of the Cabinet Office’s list for abolition, dated 14 October. I was surprised when the Bill was published, given the criticisms of the Audit Commission by Eric Pickles, that it did not appear. This would have given us a chance to ask the Minister to share with the House his boss’s no doubt carefully considered ideas on how he was going to have the commission’s functions discharged even more cheaply than through the commission’s own proposed reductions in expenditure and how he was going to ensure cost-effective audit of local government. I was looking forward to hearing about these things. I am happy to table an amendment in Committee to add the commission to Schedule 1 so that we can hear from the Benches opposite how they will deal with some of these other bodies that they have in their sights.
It is clear from speeches so far that the Government have a lot of explaining to do on this Bill. Many of us will want to give them ample opportunity to do so with amendments in Committee and at later stages. If the Government want to use the approaches in the Bill, they need to reduce what the noble and learned Lord, Lord Mayhew, has described as the industrial scale of the enterprise and make sure that Ministers’ powers are subjected to proper parliamentary scrutiny.
My Lords, it is curious for me to reflect on one body, listed in Schedule 5, which I played some part in creating some 37 years ago—that is, the Office of Fair Trading, of which the noble Lord, Lord Borrie, became the second chairman. He is no longer in his place. The extent of the attention paid to the creation of that body at that time, when we were moving in a deliberate and thoughtful way, is striking. It was the subject of an amazing television documentary, produced in three two-hour instalments and taking up 23 miles of film. There were fly-on-the-wall cameras at all our transactions in the department and everywhere else. That showed a certain degree of attention and respect being paid to this body, which now wonders what will happen to it under Schedule 5. Another striking feature is that a star emerged from that television programme—the young woman who was in charge of seeing that we all managed the thing properly. She was Elizabeth Llewellyn-Smith, who went on to become president of St Hilda’s College, Oxford. There are side-effects and by-products if you handle such things properly.
More seriously, I understand the broad purpose of the Bill, and I understand and respect my noble friend the Minister’s approach to it. He has already indicated that he is prepared to listen to what we say today in his handling of the Bill. It is of the utmost importance that that should be so. He must understand the anxiety of this House, which is serious and well founded, partly because of our experience under the previous Administration. There were some remarkable examples of ill considered legislation; I suppose the classic one was the destruction of the office of Lord Chancellor. The committees of this House, which have worked in proper study, as the Constitution Committee has done in this case, are made up of people to whom attention should be paid. I am sure the Minister will be careful to do so.
For example, after several years of that treatment, the noble Lord, Lord Butler of Brockwell, called a debate in Grand Committee in 2008 on how a good Government should deal with bodies’ recommendations and the attention they should pay to preparing legislation. The summing up in that debate should be respected by the Government. It is striking that the most compact summary of the advice from that debate is offered to the Government in the representations made by the body that is listed first in Schedule 1—the Administrative Justice and Tribunals Council. It says, quite sharply, “Right first time”. It has emphasised the importance of improving government decision-making in the first instance, thereby avoiding costly appeals and other procedures. It is important to note that some of the wisest advice given to the Government comes from one of their first candidates for ruthless examination. That is a serious point. I do not believe that advice has been followed, despite the efforts being made by my noble friend.
What is striking is the foundation of assumptions by the appearance of the different bodies in these several schedules. Four hundred and eighty one organisations are on trial and 192 of them are already condemned to death. That is a remarkable choice to make. I make no comparisons with any other country. All the others face trial and are at least under threat of being convicted of something just short of murder or manslaughter. It is a remarkable state of affairs. That is why I see the force of the recommendations of the Constitution Committee. As it is now designed, the Bill strikes at the very heart of our constitutional system.
I see that some bodies are already protesting about their prospects as they find themselves facing trial in the months ahead. The coroners’ representative body, for example, protests understandably at the jettisoning of key elements of the Coroners and Justice Act 2009 by abolishing the office of chief coroner. It seems very hasty to put an organisation that was created in the past two years in that position. That is not the only example of what might be seen as such unduly hasty management of the decision-taking. One therefore asks quite how the general policy is shaped for taking these decisions. The objective in some cases is said to be to take away power from the quangos in question and hand it back to the Executive for managerial supervision. I think this is driven by the feeling that if it is under the control of an elected body, it is thereby better protected. An elected body sounds benign in that context, but a less benign description of an elected body is the Executive, which has to take account of the legislature and the judiciary. That is why one is again anxious about the decisions being taken and whether the precise steps of conviction but not execution are being properly taken. That is why I join the procession of former law officers—people can hardly remember me as a humble Solicitor-General, who last wore his wigs in 1972—my roommate, the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Scotland, and applaud enthusiastically the former Lord Chief Justice, the noble and learned Lord, Lord Woolf. His presence here, incidentally, illustrates the value we get from such senior judicial figures. Whatever we may find ourselves doing in relation to this House, the input of such people is enormously important. The noble and learned Lord’s representations should be taken fully into account by the Government.
That is the substance of my evidence save one forthcoming point on which I wish to close. The emphasis of what I say is that, yes, the Bill can be justified as a vehicle which we need to have on the ground moving forward, but it needs to have considerable treatment of a conscientious kind, taking account of the constitutional and substantive matters discussed in this House. I know that my noble friend will take serious account of that. The Bill is legitimate but needs a lot of improvement.
I give a warning of a different kind as I did at a different stage play a different role in relation to an operation of this kind when in 1979 I was Chancellor of the Exchequer and scraping around trying to save money. One of the decisions I took in that regard was to provide for the abolition of the Metrication Board. That board had been unwise enough to include in its latest report that it was near the completion of its task. I declare an interest here in that I am—and have been for a long time—the patron of the UK Metric Association. One starts from the premise that the Magna Carta, to which we should pay respect in this context, requires specifically that there should be only one set of measurements throughout the kingdom, whether of weight, distance or anything else, so that is a foundation which we ought to respect. When the House of Commons considered the question in 1862, the Select Committee unanimously recommended the completion of the metrication process. In 1904, this House passed a Bill proposing to achieve that and in 1965 a decision was taken to go ahead and finish the task in 10 years. That was supported and accepted by successive Governments under Messrs Wilson, Heath and Callaghan, but none of them—not even the Heath Government in which I was the Minister for Metrication—took the precaution of securing primary legislation in order to complete that task. We had all agreed that it would happen and that we would do it. Remarkably, the CBI and the Retail Consortium were urging us to finish it quickly. I was president of the Consumers’ Association until a few weeks ago but I think that senility justifies my departure. However, in 1978, the Consumers’ Association also said, “Metrication, get on with it”.
I am really pointing out that my noble friend might do terrible things. He might be destroying something as important and potentially valuable as the Metrication Board, so he should take care. Had we not destroyed it, we would not have fallen behind every English-speaking nation in the world, barring perhaps the United States although it is half metric. The Pentagon, NASA and most of the automobile industry are fully metric. NASA has lost one mission to Mars at the cost of $125 million because one imperial measurement was inserted into a machine at the wrong time. We are suffering hazards of that kind because of my folly in 1979. I confess that continuously in the hope that people will agree with me that we ought to put it right.
However, I hope that my noble friend will take this matter seriously. This is an important Bill but it requires to be examined in the light of the criticisms that have been made. It is a legitimate Bill but it is very important that that legitimacy should be firmly established. I leave open the question whether the Bill should be examined by a Select Committee or a Committee of the Whole House but it requires care and attention.
My Lords, it seems to me that the Government are approaching the Bill in the spirit of Alice in Wonderland. I do not mean to imply that they are emulating the mad hatter’s tea party, although it is possible to discern occasional current Tea Party tendencies on the government Benches. I am reminded of the trial scene in Alice, where the cards cried, “Sentence first—verdict afterwards”. No doubt if the Minister had been at Lewis Carroll’s elbow, we would have had the trial last of all because that is really the way in which the Government have proceeded. They have decided on abolition first. They are looking at the cost of abolition and the estimates of savings afterwards and they will consider functions last of all.
I have the greatest respect and, indeed, affection for the noble Baroness, Lady Hanham—she is not in her place today—partly because she comes from the north-east, having been born and bred in South Shields, and partly because she was a very good colleague in the Association of Metropolitan Authorities and the Local Government Association. However, I have had a surreal exchange with the noble Baroness on some of the issues raised in the Bill in the form of Written Questions and what purported to be answers to those Questions. I asked particularly about the costs of abolition of the Audit Commission and of government offices, which are not quangos but part of government. Nevertheless, the same sort of process—if it can be called a process—seems to have been applied. I asked what the Government’s estimates were of abolishing the Audit Commission. I received a reply from the Minister that “a range of options” was being considered, that this would necessarily take time and that the process was continuing. I was given to understand, however, that actual estimates had been provided to the Government by the commission itself. I asked in a subsequent Question,
“what estimates of the costs of abolishing the Audit Commission were supplied by its chief executive … when they were received”,
and whether the Government intended to publish those costs. The reply referred again to the ongoing work of estimating the costs. It acknowledged that the chief executive of the commission had in August, and again in October,
“provided my department with information on certain of the commission's potential liabilities”.—[Official Report, 2/11/10; cols. WA 378-79.]
Curiously, the Answer did not identify the figures that had been supplied, despite the fact that the Question explicitly sought that information.
Similarly, in relation to government offices, there was again an indication that,
“broad estimates of closure costs”,
had been reached in the spending review process. The Answer continued that there were,
“no detailed costs related to Government Office North East”,
in which I have a particular interest. More relevantly perhaps, it stated:
“Departments have been considering which functions need to continue … but no department has made a decision on continuing functions”.—[Official Report, 2/11/10; col. WA 386.]
No one in this House disagrees that reform is necessary, but this is a curious way of reforming bodies of that kind.
I have in my time had some issues with the Audit Commission. I recall a chairman of the Audit Commission ringing me up and complaining in very strident terms about the attitude of the Local Government Association on one occasion. Nevertheless, it seems to me that the commission has a significant role. It is not included in the Bill, of course, but we expect to see it included in the decentralisation Bill which will presumably come to this House fairly soon; it is a manifestation of the Secretary of State’s particular animus against the Audit Commission that perhaps he wants to be sure to claim paternity of its abolition in his own Bill. However, there is actually a serious question about the role that has to be carried out; it is not a question of just auditing councils’ books and costs. The Audit Commission has a wider role; it performs an invaluable service in looking at services across a range of functions, including health. It is particularly relevant at a time when Total Place, or community budgeting as it is now being called, is coming into being—that there should be a body independent of the service providers not only looking at individual areas of what is happening across the range of services, but doing so in such a way that you can draw comparisons from one area to another and evaluate how policy is being developed and implemented across the country. That is unlikely to happen and it certainly does not seem to have been identified as an issue thus far.
Among the wide range of other bodies that have been identified, some of which have been touched on, I want to refer particularly to the regional development agencies. In the 1980s, as leader of Newcastle City Council, I worked with other local authorities, local and national politicians from all three main parties, and both sides of industry—private sector and trade unions—and we formed the Northern Development Company, which was the forerunner of what became the statutory regional development agency. It made a significant but limited contribution, because it had little in the way of resources. Now the RDAs are to be abolished—all of them—despite the fact that, certainly in the north-east and I think in other areas, there is a strong view from the private sector, as much as anyone else, that these bodies should be continued. Incidentally, in the north-east there is already a significant impact on tourism, which was the subject of a Question and helpful answers from the Minister this afternoon. However, the agency will go and it is already clear that there is a significant impact. What we will be left with in the region is a local enterprise partnership, which will have no resources and be powerless and penniless, as my noble friend Lord Liddle, pointed out. There will be more than one such body in the region, probably competing with one another; that is hardly conducive to the kind of regeneration that one would like to see, but which is unlikely to be achieved with the rather pitiful allocation of £1.4 billion over the next few years.
There are therefore serious questions about the implications of what is being done, not least in terms of the two key principles which many of your Lordships have referred to—accountability and independence. It does not seem to follow, even if functions are transferred to charities or other organisations of that kind, that accountability is necessarily thereby enhanced. That certainly does not follow if those functions are left with departments and civil servants. Of course, if the proposals of the Secretary of State go through, a vast body will be created to administer a very significant part of the National Health Service nationally—a super-quango, if ever there were one.
Some charities may be tempted by the prospect of obtaining resources alongside new functions. Like many of your Lordships, I have received a briefing from the national Citizens Advice. I join a previous speaker in expressing some doubt as to whether that organisation, which does enormously valuable work on the ground locally—I was once involved in forming a CAB and at other times acted as an adviser—is the right one to take on the serious and major issues of consumer protection and advice across the whole piece. That matter will no doubt be developed.
There is clearly a case for periodically and thoroughly reviewing the role of organisations of this kind. We do not need to join the late Screaming Lord Sutch, who inquired, “Why is there only one Monopolies Commission?”. We do not have to encourage the continuation of unnecessary bodies, but there is the constitutional point which many noble Lords have raised with considerable eloquence and force. That relates to the use of Henry VIII powers. I was never sure whether the relevant analogy was his recourse to decapitation instead of marriage guidance, or whether, as my noble friend Lady Hayter said, it was the dissolution of the monasteries. Neither is a suitable precedent for making the changes that the Bill seeks. I hope that the Government will think very carefully indeed about the way they are proceeding. I hope that they will accept the amendment of my noble friend Lord Hunt in the spirit in which it will be moved, so that we can have a practical discussion of how best to improve the situation on the basis of a proper discussion and consultation with those affected, with a view, above all, to preserving those essential elements of independence and accountability without which the system cannot serve the nation.
My Lords, I, too, share the concerns expressed around your Lordships’ House about the principles of the Bill. They have been very well expressed by many noble Lords, so I intend to concentrate on what can broadly be called the human rights and rule of law area. I am most grateful to the noble and learned Lord, Lord Woolf, for his extremely compelling exposition of the implications of Schedule 7 in particular for the independence of the judiciary.
I want to make a few remarks about bodies such as the prisons inspectorate and the independent monitoring boards. I must declare some interests as the president of the Association of Members of Independent Monitoring Boards and a trustee of the International Centre for Prison Studies. We have in this country over the past 20 years developed a range of independent bodies that ensure that those who have power over others exercise it lawfully and proportionately. This is an important element of the institutional arrangements of any civilised society. Our arrangements for this form of control and accountability are admired around the world. Delegations come here all the time to see them and learn from them.
Therefore, to see listed in Schedule 7 Her Majesty’s Chief Inspector of Prisons, the independent monitoring boards of prisons, the Independent Police Complaints Commission and the visiting committees appointed for removal centres under Section 152 of the Immigration and Asylum Act 1999 causes enormous concern. It seems as if so many protections for so many vulnerable people and so much effort to ensure that the law is kept and ethical principles are observed can be swept away simply by a body being moved from Schedule 7 —the pending tray, as the noble Lord, Lord Borrie, described it—to Schedule 1, the action tray, with scant safeguards to slow down that progression. This streamlined procedure is in stark contrast to the many years of painstaking work, deliberation and commitment that went into the creation of these bodes.
The independent monitoring boards, which are composed of volunteers—cost, therefore, cannot be a huge consideration—attached to each prison, and now each immigration removal centre, go back to Tudor times, when magistrates of the county Quarter Sessions had a hand in the administration and regulation of local prisons and appointed visiting committees for specific responsibilities. Since then, they have developed and been subject to many changes, which have gone through Parliament in primary legislation. The Minister, in his helpful opening remarks, claimed that the Bill aimed at more accountability and transparency, but these bodies are there to increase the accountability and transparency of all custodial establishments.
I return for a moment to the Chief Inspector of Prisons. The position emerged from a huge amount of deliberation and consultation and is now a requirement for the United Kingdom to be able to meet its obligations under the optional protocol to the convention against torture. Many noble Lords will remember an attempt by the previous Government in the Police and Justice Bill to merge the prisons inspectorate into a super-inspectorate and to put it under ministerial control. Many will remember the stand taken in this House against the proposal and the work done by the noble Lord, Lord Ramsbotham. The proposal was defeated by 211 votes to 98. Members of both current governing parties in the coalition were among the 211, as were a number of noble Lords from the current opposition Benches. Clearly, any Government can take their decisions as they wish, and change is necessary and often for the good, but the decisions should be made democratically by Parliament in a proper way, with proper consideration and debate.
The bodies that I have mentioned appear in Schedule 7. I note the Minister’s assurance that their presence there does not mean that any action will be taken. However, if that is so, why are they there? I would be grateful if the Minister would explain exactly what being in Schedule 7 means. I am sure that from now on the bodies in Schedule 7 will feel a sense of dread hanging over them. This is a threat to their independence and their standing as proper oversight mechanisms for the actions of those who work for the Government, exercising onerous responsibilities in our name.
Finally, I will say a word about the chief coroner, who is already, as the noble and learned Lord, Lord Howe of Aberavon, suggested, in the execution chamber. The Minister described all these bodies as quangos that the public do not like because they are unaccountable. However, I am not entirely sure that the public, and especially any member of the public who has been connected with a death and an inquest, will feel that way about the chief coroner. With the abolition of the post of chief coroner, we will lose another element of oversight in the vital area of the right to life and the rights of families of victims of deaths where the state is involved. It should be no surprise that Inquest and the British Legion are very concerned about the abolition of the post of chief coroner. The post was introduced to ensure accountability and judicial oversight—to deal, for instance, with situations where the delay in holding an inquest is much too long, which causes enormous distress to the families of the deceased. It deals with appeals by bereaved families against coroners’ decisions and ensures that the recommendations made by coroners about changing practices to avoid further deaths are taken up.
The Government have made many encouraging statements about their commitment to justice, human rights and the rule of law. These have been warmly welcomed. Sadly, at the moment, the Bill does not exemplify that approach. I am very encouraged by the Minister’s assurance that the concerns expressed here will be listened to and I hope that we shall see substantial changes to the Bill.
My Lords, like my noble friend Lady Royall, I think that this is a bad Bill. We could describe it as the Donald Rumsfeld Bill, as it deals with known knowns, known unknowns and, in Schedule 7, unknown unknowns. This was best put in the RSPB’s excellent briefing, which states:
“In summary, the Public Bodies Bill is an enabling Bill framed along the lines of, ‘We’re going to change lots of things, some of which we know now, some of which we will work out soon and some of which we can't tell you anything about because we haven't thought of them at all yet, but please give us the power to do all of this’”.
Suffice to say that the RSPB—a big society with more members than all the political parties in this country put together—is very unhappy with the Bill. It is worried about the environmental consequences of the disposal of public land, it worries that environmental considerations will be secondary when these powers are used, and it is very concerned about the consequences for biodiversity of the measures against the Forestry Commission. It is among many organisations that have contacted noble Lords, urging opposition to the Bill.
Like so many noble Lords, I disagree with the Minister’s assertion that this brings in a transparent legislative framework. Rather, this skeleton Bill is an insult to parliamentary scrutiny—and I am afraid that the insult is doubled by Ministers claiming to act in the name of increasing accountability. It also feels so unnecessary. As has been said, few people disagree with rationalising the number and scope of arm’s-length bodies. The first Bill that I took through Parliament as a Minister became the Natural Environment and Rural Communities Act, which among other things culled a large number of arm’s-length bodies—the agricultural levy boards—and also merged English Nature, the Rural Development Service and the Countryside Agency into Natural England and the Commission for Rural Communities. Section 8 of that Act also includes powers to transfer functions and powers between any of the arm’s-length bodies, including the Forestry Commission, within the Defra family—but with consent.
Therefore, I have my own track record in this area, and the possibility of cross-party consensus is there, if only the Government stopped rushing everything to get headlines and photo opportunities for their personal photographers. The previous Government published proposals for considerable rationalisation in their Smarter Government White Paper last December, and in the Treasury paper last March entitled Reforming Arm’s Length Bodies. My argument is not with the principle, but, as the noble Lord, Lord Maclennan, said, with the application. Yes, I disagree with some of the detail relating to individual bodies such as the RDAs. We can also learn from the excellent report from the Institute for Government on how we as Ministers manage arm's-length bodies better. However, we need the Select Committee that I will tonight vote to establish to agree an acceptable process, because the principle of scrutiny must be respected.
As a Minister in the other place, I took five Bills through Parliament that included changes in primary legislation to 16 of these bodies, and the setting up of seven of them. This meant spending hours being scrutinised on the scope and functions of the bodies, which forced me to think clearly about what we were doing. In one memorable case, which concerned transferring to Ofsted functions relating to the inspection of independent schools, it forced the noble Lord, Lord Adonis, and me to change our minds on the whole thing. That would not have happened if we had done it by regulation. I got a battering in the Commons, my noble friend faced a battering here, we discussed it and realised that neither of us disagreed but both thought the other one thought it was a good idea, we disagreed with the officials and we changed it. The Bill proposes jettisoning that scrutiny. It will mean, for example, that if the Young People’s Learning Agency were moved from Schedule 7 to Schedule 1, all the data-sharing powers that were debated at great length during the passage of the Bill to set it up would be transferred with no more than cursory scrutiny. Personal data is an issue of great sensitivity and importance. How many of these bodies have powers over personal data that may be redistributed in a cavalier fashion through the Bill?
The principle of independence must also be respected. Schedule 7—the zombie list, the list of the living dead—includes Ofsted, Her Majesty's Chief Inspector of Education, Children’s Services and Skills, Ofqual and the School Teachers’ Review Body, along with many other bodies with which I am less familiar. These bodies, by definition, must be independent of government. The publication of Ofsted’s annual report, for example, was always a very difficult day for me as a schools Minister because of Ofsted's authority born of its independence. My noble friend Lady Andrews made some powerful points about Schedule 7 bodies. How will they retain their independence when a Minister can abolish them by order thanks to the Bill?
Then there is the haste. Why have the bodies concerned barely been consulted? The national park authorities have contacted me to make important points about their special status and to tell me how little prior notice they had before this measure was announced. In his response to the noble Lord, Lord Foulkes, earlier, the Minister claimed that the devolved Administrations had been properly consulted. I gather that the Welsh Assembly Government were given one week’s notice of the abolition of the Agricultural Wages Board and that the nature of the consultation was simply to ask what they were going to do now that the decision had been made to destroy the protection of low-wage workers in England.
Not all the bodies that are being abolished are on this list. Becta, for example, which is not on any of the lists, was given 24 hours’ notice of its demise and, true to the recent catalogue of shambolic decisions by the Government, the Secretary of State for Education was keener on headlines than on probity. Becta is a charity. The Secretary of State has the power to cease funding it but he has no power to close it altogether. As it was, he put the charity’s chief executive and board in a dreadful position, with their staff waking up to hear about their redundancies on the news.
Earlier, I mentioned the abolition of the Agricultural Wages Board—a body that has continued successfully without any strike action in this country since 1923. In Schedule 7 is listed a similar body on which Mr Gove has already made a decision. The Minister claims that it is okay to bring in that schedule, but what about the School Support Staff Negotiating Body? That body was established after a huge amount of negotiation and trouble by me as the Minister and by many others, and its establishment was debated at length just over a year ago in this House. Like the Agricultural Wages Board, it protects some of the lowest-paid workers in this country, such as dinner ladies, school crossing patrollers, teaching assistants, caretakers, laboratory technicians and administrative staff, most of whom are women. Thanks to this body, people were given the chance of a career, not a one-off job, but that has now been lost at a stroke of Mr Gove’s pen.
We do not have to do this. If Schedule 7 were deleted, if another Bill, such as a localism Bill, were used to deal with bodies such as the RDAs, and if other powers, such as those over the Defra family in the Natural Environment and Rural Communities Act, were used, we might begin to have a Bill worth proper scrutiny. Until then, we should give it to a Select Committee to try to lick it into shape.
My Lords, this Bill is clearly flawed. It may even be deeply flawed. However, we have heard much about the flaws and I want to focus on the purpose of the Bill, which I believe to be urgent and important. It is nothing less than to improve a great swathe of state activity by making it more relevant, less intrusive and more cost-effective. The Bill reflects the 2010 manifestos of both coalition parties.
First, I declare my own interests. Declaring interests can reveal the experiences which tempt one, perhaps even qualify one, to comment in debate. I was for 12 years a countryside commissioner and for eight years a rural development commissioner. Those two quangos—the Countryside Commission and the Rural Development Commission—were long ago absorbed into Natural England. I was subsequently, for five years, the chairman of the Council for the Protection of Rural England, which is not a quango but a pressure group, and unashamedly so. For the past 10 years, I have been president of the Suffolk Preservation Society, which is a county branch of the CPRE.
The basic purpose of quangos, and indeed other bodies with delegated powers, is to advise government on public policy and improve their administration. There are four elements to it. The first is to hive off to separate management some government functions, as authorised by Parliament. This is to ensure that scarce Civil Service talent, normally recruited for policy advice rather than management of resources, is not diverted to managing special and often very technical functions. The second is to support and inform the political judgment of overburdened departmental Ministers by bringing in part-time appointees as the governing bodies of the quangos with sensitivity to the political perspective of the elected Government. The third is to identify and, where possible, anticipate particular problems within the remit of the quango and to advise Ministers on how to deal with them. The fourth is to be the recipient of, and to evaluate, the views of pressure groups in their field and to advise Ministers how they should react to the demands of those pressure groups. That is a crucial role for the governing bodies of quangos.
I say at once that a number of quangos are doing a very fine job. However, the problem is that some have grown to have a culture, ethos and agenda of their own, often quite different from the aims and policies of the Government of the day. They have become empire-building special-interest groups, and members of the governing body have sometimes “gone native”, no longer exercising proper control over their staff or the use of resources.
In making its case, a pressure group overstates that case—in as covert a manner as may be expedient. It does this to get the appropriate action and resources to implement its objectives. It is not there to have a balanced view on what should be done. Its legitimate role is to get the biggest share of the cake that it can and to negate other interests, private or public, if they get in its way. Therefore, it is obvious that if a quango gets too close to a pressure group or, worse still, behaves as a pressure group either in administration, expenditure decisions or, most of all, in advice to Ministers, it can become counterproductive and lose all sense of proportion. The imposition of disproportionate compliance costs on either other government agencies or the private sector is an example.
A weak Minister—and all Governments have them—will have little hope of bringing a deviant quango under control. Resources will be misused and policies distorted. Quangos can be harder than government departments for Parliament to control because their governing bodies are not directly answerable to Parliament. Thus, quangos can add to the democratic deficit.
This Bill is one of the measures that the Government are taking to deal with the budget deficit, so let me stress a point which should be obvious to all, although I have found it to be generally unrecognised by the quangos themselves. However, once it is made it is not denied. It is that the cost to any business, whether corporate or private, of compliance with the mandate of quangos is a business cost and therefore tax-deductible. That means of course that a proportion of that cost—up to 28 per cent if it is corporation tax or up to 50 per cent if it relates to a sole trader such as a farmer—comes directly from the Exchequer. Compliance costs therefore reduce the tax collected by HMRC and make the balancing of the budget that much harder. Therefore the Government of the day have a shared interest with both business and the public in ensuring that regulation, and thus the cost of compliance, is minimal and, above all, proportionate.
It has become increasingly apparent that some quangos, and some of the specialised departments of both central and local government, have been behaving, especially in their regulatory role, in a disproportionate, intrusive and sometimes insensitive manner. At times this seems to reflect the systemic arrogance of bureaucrats; sometimes it is simply the jobsworth attitude of rather second-rate individuals who have been nestling in the protective cocoons of their organisations. More recently, some of them have behaved as though their function, or at least their opportunity, is job creation. With the credit crunch, job preservation at all costs has become their priority. These are some of the things that explain some of the opposition to measures in this Bill.
I shall illustrate my case with one quango which has, in my view, behaved with scant regard for the public purse and with little sensitivity to public opinion. Proportionality is quite absent. To it, the life of one bat or one great crested newt is worth expenditure without limit; the opportunity cost, in terms perhaps of kidney machines for humans, does not occur to it; and it acts as the instrument of its pressure group clients such as the RSPB. I refer of course to Natural England. The story of how that quango imposed on another quango, the Highways Agency, a cost of £600,000 to build two bridges for bats over the new Dobwalls by-pass in Cornwall caused indignation on a national scale. That was cash which came straight out of the Exchequer. I am sure that we have all heard of the cases where new public buildings such as schools and hospitals have to pay thousands of pounds to cope with the possibility that their plans might interfere with great crested newts. In Suffolk, Natural England proposed, in cahoots with the RSPB, to introduce to our coastline white tailed sea eagles, whose natural habitat is the islands off the Scottish mainland, to the fury of local pig farmers, of which I hasten to say I am not one. That particular nonsense was halted by the new chairman, a sensible farmer, Paul Christensen. I hope that he will welcome the much needed cut in the budget of Natural England.
The amalgamation of quangos may not be a solution. Those on the governing body, especially if they are to apply their wisdom and experience, have limited time available. They have busy outside lives. If they are to be fully effective the scope of the quango must not be so wide that they cannot follow, monitor and control the quango. Smaller more focused quangos, perhaps sharing administrative overheads with others, may be more cost effective. Thus a reduction in the number of quangos is not necessarily a good test of this Bill.
I am sure that we have to improve this Bill, but I believe that the intentions behind it are sound and action is well overdue. I support the intention of this Bill and I support the need to improve it, but I shall not support proposals to delay it.
My Lords, the noble Lord, Lord Marlesford, has quite rightly reminded us that the proposal to cull quangos was in the manifestos of both coalition partners. Therefore, I accept the purpose of the Bill. However, like so many other noble Lords who have spoken today, I am concerned about the means by which the Government propose to do this. I accept immediately that this is not an easy solution but, on the other hand, I do not apologise for reiterating how damning and how devastating the report of the Constitution Committee is. We all know that one can find reasons and explanations for actions such as introducing a Henry VIII clause. That may seem good at the time but a principle is involved, and that principle is almost sacrosanct.
I find it ironic that when the Minister in charge of the Bill in the other House, Mr Francis Maude, introduced it, and justified the need for the Bill, he argued that it was needed to increase political accountability and more accountability to the legislatures. I think we would all go along with that. However, it is ironic that the means by which it proposes to do this is probably one of the most antidemocratic moves that there has been in either House in recent years. The Constitution Committee said that,
“the ordinary constitutional position in the United Kingdom is that primary legislation is amended or repealed only by Parliament”.
It went on to say:
“Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided”.
In no way will that happen in this case.
It might be worth reminding the outside world what is being proposed. I accept that this is not just the whim of the Minister. Orders will be laid before both Houses of Parliament but they will be only an hour-and-a-half duration and there will be no means of amending them. We all know that, but I am not sure the wider world knows that. I am not sure that is democratic, when originally hours and days may have been spent in both Houses coming to the decision. That is why there is so much concern in this House, although we appreciate the good will and intent of the Minister—I appreciate that straightaway.
I want to turn my attention to something which I know a little about. That concerns Clauses 17 and 18 which relate to the Forestry Commission. Until just under a year ago I chaired that body for eight years and I thoroughly enjoyed doing so. I am a great supporter of the Forestry Commission. If I felt that the forests and woodlands in this country could be maintained to the same standard as they are maintained at the moment by a different form of ownership, I would look at it. I feel that challenge is not met in this Bill. However, I think that the Forestry Commission is different from 99 per cent of the other arm’s-length bodies in that it is a government department. It is a non-ministerial government department and every single employee of the Forestry Commission is a civil servant, which goes directly against the definition by the Cabinet Office of the non-departmental public bodies, quangos. I am a little confused about why there are two clauses specifically concerning the Forestry Commission. That jars a little. Only the Forestry Commission has so much of the Bill devoted to it.
As I say, all the employees of the Forestry Commission are civil servants, which means that the Forestry Commission is at a disadvantage compared with 99 per cent of the other bodies in that it is neutral and it cannot discuss anything with Members of Parliament or Members of this House. Would the Minister consider looking at the possibility of allowing the Forestry Commission’s senior officials to provide factual information to Members of this House and Members of another place? If we are to make considered judgments on this matter on the two clauses specific to the Forestry Commission, it might be helpful to get factual information—not opinion—from the Forestry Commission’s senior civil servants. I hope that the Minister will look into that and be able to give us an assurance in due course.
One of the difficulties we are wrestling with—it may be why the two clauses are there in the Bill—is the rather complicated structure of the Forestry Commission, which was created as a GB body in 1919. In 1998, in essence, forestry was, apart from plant health and research, devolved to the Government of Scotland, to the Welsh Assembly and retained here at Westminster. But the three Governments then decided that if forestry were to be effective in those countries, it would benefit from having a critical mass. Having been devolved by Westminster, the two Parliaments and one Assembly came together on that matter. One of my first jobs in 2001 was to try to devise a system so that we could run the Forestry Commission and, given devolution, attempt to give power to the nations but at the same time retain that critical mass. We managed to establish national committees with forestry commissioners chairing them and sitting on them and the system has worked very well.
That concerns me, because Clause 18 talks about the powers of the commissioners and the Minister having the authority to change the power of the commissioners. Will that be only English commissioners, or will he have the authority—is it the Government’s intent—to change the powers of the Scottish and Welsh commissioners? If we are trying to retain a GB body, it would concern me if different commissioners had different powers.
I have another couple of questions that I would like to ask the Minister. The Wildlife and Countryside Act 1985 specifically requires the Forestry Commission to balance its economic powers—to produce timber, et cetera—with environmental concerns. Am I right in thinking that the Minister could make an order under Clause 17 or 18 which would remove that ministerial, or governmental, requirement to have a balance? Following on from that, the Forestry Commission has granted access on foot under the Countryside and Rights of Way Act on almost all its freehold land. Is that now at risk? I know that the Minister has said that there will be no threat to the access agreement currently in force, but will the Government give us an absolute assurance that the CROW Act provisions giving access on foot in perpetuity will be carried out, despite the fact that it may mean that they will not get quite as much money for the sale of any land? Also, the Forestry Commission has a very generous interpretation of access for bicycles and horses. Can the Minister give us any assurance on that issue?
There are many other issues to which one could allude—the Crichel Down principle when it comes to selling off, or the attraction to rich people of no inheritance tax on forest land. I end with this point. The net cost of the Forestry Commission estate was £10 million—30 pence per person in this country. I do not think that we could get that value for money from any other organisation.
My Lords, perhaps I should start in the spirit of the confessional, because I am a reformed quangocrat. It was a habit that started innocently enough with the occasional meeting of a small regulator. Then I went on to the Commission for Integrated Transport and, hopelessly hooked, went on to the hard stuff and became a member of the board of the Audit Commission. I have to say that everyone I worked with in those bodies—the staff and non-executives alike—was extremely committed to their tasks and genuinely cared about serving the public, so I am very pleased that the Government have moved away from a rhetoric of demonising those public servants.
However, we must all admit that we have been too quick in the past—and I fear we will be in future—to reach for the quango as a policy response to every problem that comes before us. I heard an expression in another context which covers it, which is, “If you have a hammer, all problems look like nails”. I fear that that is where we are with quangos—we just create them. It is time to have a serious debate about how we deliver certain public functions. Should they be done by civil servants with ministerial oversight or do we genuinely need outside expertise? Can voluntary organisations do the job at least as well, if not better, particularly where there is a large campaigning element? Are the public better served in some areas by independent oversight, or is accountability more important? What we do about the use of patronage in making the appointments? How do we deal with the growing costs of the burgeoning number of arm’s-length bodies, all of which require offices, headed notepaper and all the other corporate paraphernalia? How do we deter those bodies from a slow extension of the task for which they were originally set up? We have all seen the tendency for mission creep. Who oversees the overseers, audits the auditors and regulates the regulators?
We need a fundamental review, and one that moves beyond a numbers game. I know that the Government are very focused on the need to reduce costs, and that is understandable, but many of these organisations do not spend very much money. Although there may be very good reasons for looking at them, it will not save much money. The National Audit Office has estimated that 80 per cent of NDPB expenditure is located in just 15 organisations, so you might want to start there. But then, 75 per cent of their costs are grants, which are just passed on to others, so they will not be saved by the act of either abolition or merger—you would need a change of policy direction.
There is no doubt in my mind that departments need to look at the beam in their own eye. Many of them micromanage the bodies which report to them and create unnecessary administrative burdens. In other cases, departments just lose interest in their bodies. Then you get poor communication and organisations completely out of touch with what the department and the Government are seeking to achieve. In other cases, those arm’s-length bodies end up as a kind of sandwich between competing interests. I know that when I was on the board of the Audit Commission, at one point we were engaged in a process of reducing the regulatory burden, in line with the wishes of our sponsoring department, while civil servants and Ministers in other departments were constantly coming to say that they wanted this performance management scheme, or some other regulatory burden, added. We need to look at that.
The great range of organisations contained in the Bill, from the Wool Marketing Board to Channel 4 and from the Theatres Trust to the Equality and Human Rights Commission, is a demonstration of the complexity of arrangements that have developed over the past 30 or 40 years. In the case of some of them, for example, Channel 4, it is questionable whether it is even a public body and should be in the Bill. Other noble Lords have highlighted cases where there are omissions for no reason that can be understood at the moment. This is where I begin to have a problem with the Bill. It seems to me that creating a Bill like this—an enabling Bill which simply puts together this vast array of bodies and then subjects them to reform, change and abolition with minimal parliamentary scrutiny, is just asking for trouble.
Many of these organisations were formed only after intense parliamentary scrutiny of primary legislation and, in many cases, were better for it. The fear here is that change imposed by Ministers after minimal consultation will result in imperfect statutory instruments coming before Parliament and Members—particularly in this House, with all their expertise—will see all the flaws but be pretty impotent to do anything about it, given that the orders will be unamendable, that there will be a 90-minute guillotine, that they will be grouped together and that, finally, we have only the nuclear option of voting the whole thing down.
It is already apparent from the range of organisations that has been in touch with me and other noble Lords that, whatever the Government's intention, the creation of Schedule 7 has resulted in a sort of death row for quangos. They know that the short timescale required to impose change by statutory instrument will create a climate of uncertainty which will affect their operational management and recruitment and make long-term decision-making virtually impossible. It will also have a very negative effect on the relationship between the departments and the organisations. Where those organisations have a primary function of holding the Government to account, it will compromise that very function in the eyes of the public by having such an impermanent relationship. Some of the consequences are absurd. The Office of the Commissioner for Public Appointments, set up to ensure a fair and unpartisan appointments procedure, could itself be changed as a result of the Bill.
It is funny how people tend to think about constitutions as dry things that do not affect the stuff of everyday life, because here we have a constitutional issue which demonstrates how the constitution is inextricably linked with good governance. I am dismayed that, over the years, Whitehall fails to learn this. I quite enjoyed the outrage from noble Lords on the Labour Benches, and I gently remind them that the Constitution Committee notes:
“The House will recall various occasions in recent years on which Parliament has sought to resist executive proposals for Henry VIII powers”.
In its briefing, Liberty comments:
“This Bill follows a trend popular with the last Government of avoiding the necessary rigours of parliamentary scrutiny”.
Let us not pretend that this is a problem which has just emerged since May. This has been many years in the gestation and is a classic Parliament versus Executive problem.
These bodies—quangos, arm’s-length public bodies, whatever we call them—have become a fundamental part of British public life. Reform is certainly necessary, but as the excellent Institute for Government report is so aptly titled, we should Read Before Burning. Its report sets out the case for reform, but it is thoughtful, rooted in reality and sets out a road map for bringing these bodies into a more rational framework over time. The danger of the Bill is that it sets out a legislative framework for a reform process which is itself deeply flawed.
I welcome the Minister's words at the start of this debate that the Government will be prepared to look at improving the Bill. I urge them to take a look at the super-affirmative procedures which will improve consultation and improve the ability of this House particularly to scrutinise. We need to remove the provisions for omnibus orders to come to this House, and we need to allow this House to use the expertise that it undoubtedly has.
My Lords, I declare an interest as chair of the Security Industry Authority and president of the Association of Police Authorities. I share the great concern of colleagues at the constitutional implications of this Bill, but my main concern this evening is to speak on behalf of those who work with and in the private security sector throughout the UK, but especially in Scotland and Northern Ireland, and to convey their disbelief, their dismay and their anger at the Government's uninformed and high-handed attempts to deregulate the industry by abolishing the Security Industry Authority.
The 350,000 or so individuals who work in the private security sector have to undergo criminality checks and basic training before gaining a licence which costs them £80 per year. So it is those who work in the industry as security guards, in close protection or as door supervisors, or their employers, who pay for the regulation of private security, not the Government. The SIA is completely self-financing and the Government will save nothing by its abolition. You might therefore have thought that before deciding to deregulate the industry, a Government avowedly concerned about transparency and accountability might have consulted the people who actually pay for regulation, or those industry bodies which strongly pressed for it in the 1990s. But not a bit of it—the Cabinet Office decided to press ahead with the abolition of the private security industry regulator with no consultation whatever, totally disregarding the fact that companies working in the industry had invested upwards of £300 million in regulation and in what they call the “SIA brand” and that they reasonably wanted a return on their investment. Even more seriously, those sitting in the Cabinet Office paid no heed to any of the dangers which deregulation would pose to the public.
In the past five years, the Security Industry Authority has worked with the police, local government and other partners to identify 175 companies and nearly 300 individuals with links to organised crime groups. The associated criminality was at the most extreme end of the spectrum of harm to the public—dealing in class A drugs, organised immigration crime, gang violence, domestic terrorism and laundering the proceeds of crime. Since 2004, 47,000 individuals have been removed from working in the industry because they were identified as not fit and proper to do so, and of these nearly 1,500 had their licences suspended in response to a clear, serious and imminent threat of harm to the public. The SIA itself has successfully prosecuted 24 cases and nine companies because of suspected links to organised crime, and through collaborative working with the UK Border Agency it has revoked about 8,000 licences of people with no right to work in the United Kingdom.
When front-line policing is going to be cut, and when the threat from both domestic and international terrorism is so strong, you would have thought it was hardly the time to announce the deregulation of private security and run the risk of encouraging criminals and untrained people to return to the sector. This runs completely counter to such schemes as the highly successful Projects Griffin and Argos, which bring together private security guards with the police, who use them as their eyes and ears to detect any suspicious goings on in the streets and in the buildings where they work, schemes which have been widely adopted both in the UK and further afield. These schemes rest on the foundation that those who work in private security have been properly vetted and have received basic training, a situation which the proposed deregulation of the industry is about to put in jeopardy.
It was in Scotland in October that the news first leaked out that the Government were intending to abolish the regulatory body for private security. The Scottish Government were appalled; the chief constable of Strathclyde condemned the proposal as a “disaster”. Licensing started in Scotland in 2007, and since then Strathclyde and other forces in Scotland have worked closely with the SIA to disrupt crime gangs by attacking their legitimate fronts, such as security businesses. Without a doubt, regulation was making a significant contribution to tackling serious and organised crime, particularly in the Glasgow area, and there was no way that the Scottish Government would agree to drop it. In fact quite the contrary: Scottish Justice Minister Kenny MacAskill made it clear he wanted more regulation, covering more sectors; and following a visit he made to Northern Ireland, the Northern Ireland Administration gave strong backing to this view, making it clear that regulation had worked extremely effectively there in the year since it was introduced and that, like the Scots, they would insist on retaining it under their devolved powers.
I was very surprised to hear the Minister say earlier that there had been no differences of view between the Government and Scotland on this Bill. I would like to ask him perhaps to reconsider the accuracy of what he said earlier and to make it clear to the House in his summing-up that very strong divisions of opinion exist between the Government in London, the Scottish Administration and the Northern Ireland Administration in relation to the SIA and its role.
It was indeed the Glasgow Herald which pointed up the total inconsistency in what was happening. It said that not only was the effectiveness of the SIA being measured by its ability to curtail and disrupt criminal activity, but that licensing had inculcated a new culture among stewards on licensed premises, whose training in reducing aggression and violence had contributed to crime reduction in city centres. It then observed that the SIA was apparently doomed in England because it had failed the Cabinet Office's tests for survival: performing a technical function, impartiality and establishing facts transparently. Yet, as the Herald wryly observed, it appeared to pass those tests with flying colours in Scotland.
Perhaps the Minister could answer a question that I have been asking for some time: where is the consistency in this Bill? Why is the regulator for private security singled out for abolition, but not other regulators such as the Gangmasters Licensing Authority or the Gambling Commission? Did all government departments answer the three questions differently? What is the common factor which binds together all the bodies in Schedule 1? To me, they appear like a completely random collection, almost as if they had been drawn out by lottery balls on a Wednesday evening.
The leak in the Daily Telegraph, while it completely demoralised staff working in all the listed organisations, did at least give the leading associations and individuals in the private security industry the opportunity to start organising and telling the Government what they thought. The British Security Industry Association, the International Professional Security Association, the Security Institute and the UK chapter of ASIS International, plus all the leading industry online sites and publications, expressed their opposition to deregulation loudly and unequivocally. A new industry umbrella organisation, the Security Alliance, took shape and resolved that regulation should stay for the protection of the public and to continue to drive up standards in the industry; that compliance and enforcement of licensing was very important, and could be undermined by what the Government were proposing to do; and that those working in the industry should be allowed to continue working with the regulator, as they had since the summer, to work out ways of moving to smarter, lighter-touch regulation.
The irony of all this is that had the Cabinet Office done any research at all, it would have learnt that the private security industry and its regulator had agreed on a blueprint for the next few years to move to greater industry involvement in the regulatory regime, particularly for companies achieving high standards in annual independent inspections, so that regulation could focus more strongly on the not so good, not so highly performing companies. The Home Office had already been approached to introduce business licensing alongside the licensing of individuals to make it easier to set minimum standards which could then be progressively raised, and to ensure compliance. Eventually, even Ministers in the Cabinet Office, I am happy to say, heard the message and heeded it. They agreed that, while the SIA should no longer be a non-departmental public body, there should be a phased transition to a new regulatory regime. This was endorsed last week in a letter to me from the Home Secretary, and I am happy to accede to her wish to ensure that,
“any transition to a new regulatory regime is phased in smoothly and takes into account the needs of the industry as well as the priorities of the Government including the devolved Administrations”,
and that there should be no,
“significant changes prior to the Olympic Games”.
However, I am aware that none of that is in the Bill. Can the Minister explain to me, please, and to all those working in the industry, what statutory force the Home Secretary's intentions will have?
One or two issues still worry those working in the industry, and major buyers of private security, such as Tesco, the big City banks and companies with big sites to protect, do not want the transition period to be rushed. They want to ensure that any new regime, even if it includes self-regulation, builds firmly on the existing one, is not a poor substitute for it and, in particular, continues to have government-backed enforcement powers. The Scottish Government, who are already planning for the Commonwealth Games in 2014, will undoubtedly be in strong agreement with these concerns, as will Northern Ireland.
So the regulator will try its best to set out a timetable and to construct a transition to a new regime which satisfies the Government on the one hand and the industry, buyers, Scotland and Northern Ireland on the other. It will not be easy, and our task has been made inordinately more difficult by the way the Cabinet Office has operated in the past few weeks, with a total lack of transparency, consistency, logic or evidence-based policy-making. We will go ahead and try to make the best of what is happening, and all our partners are very supportive, but it hardly inspires confidence in the Government's avowed mission to eradicate waste and inefficiency or to apply with any consistency the objectives listed in Clause 8(1). The Bill is hugely contentious, and I hope I have shown some of its shortcomings in the detailed analysis that I have just put forward. It needs to be considered extremely carefully before we proceed any further, which is why I shall certainly be supporting my noble friend’s amendment later this evening.
My Lords, the noble Baroness has given us a preview of the speech that she will no doubt make again in Committee. The problem that I have had to confront is that, while I completely agree with the aims of the Government in preparing this much-needed legislation, I am a member of the Constitution Committee, which produced the report that was laid before the House on 4 November. Bearing in mind the importance of that report, I suppose that it is as a punishment that the two members of the committee who have put down their names to speak tonight have been placed at 32 and 41 on the speakers list. That may have been a mistake, as Ministers knew that I for one would be bringing forward proposals, which they said that they would welcome, designed to address the very criticisms of the Bill contained in our report and which the House might have found helpful to be informed about early in the debate rather than during the dinner hour.
The Whips understandably believe that the members of a party or parties that form a Government have a duty to support them, but we have other duties as well. In this case, they are to ensure that constitutional conventions are not abused, to defend the right of Parliament to scrutinise and, if necessary, to amend the legislation brought before it and to see that the ability of this House to carry out its most important job—the proper scrutiny of legislation—is not undermined.
In the impact assessment that they have published, Ministers tell us that they considered proceeding by means of separate pieces of legislation but decided that that would have made it difficult to deliver the Government’s policy intention and would have been,
“an unnecessary burden on parliamentary time”.
It is not at all surprising that Ministers decided to bring forward a single Bill so that they could,
“effect the changes they need, through the less time-consuming process of secondary legislation”.
The drawbacks to that approach have been clearly identified by the Constitution Committee. With 910 public bodies in the scope of the review and 481 selected for some kind of change, I think that the Government, the House and, especially, Members on these Benches should try to work together to find ways of solving the very real problem that exists without wrecking the Bill, the aims of which are very widely supported.
At a meeting last week with Ministers and the Bill team, I was concerned by their repeated references to what they described as safeguards. The trouble is that the affirmative resolution procedure is not a safeguard, for the reasons so eloquently described by my noble and learned friend Lord Mayhew of Twysden and others, and other so-called safeguards are equally insubstantial. The words,
“the Minister must have regard to”,
and “if the Minister considers”—I quote from Clause 8 —do not provide any kind of reassurance.
So how do we resolve the difficulty? I have made a number of suggestions to Ministers, and my right honourable friend Francis Maude, the Cabinet Secretary, seemed sympathetic to all of them. First, there are several bodies listed in Schedule 5, such as the Human Fertilisation and Embryology Authority and the Human Tissue Authority, on which the Government are awaiting reports and have not yet decided how to proceed. The reform of some of those bodies raises sensitive issues. I believe that the Government would be well advised to take them out of this Bill and, when they have decided how to proceed, to produce separate Bills or include them in other legislation that the departments are almost certain to bring forward.
Secondly, there are some bodies included in the Bill with quasi-judicial or judicial functions where the changes raise legal and human rights issues, which were eloquently referred to by the noble and learned Lord, Lord Woolf, and by my noble friend Lord Lester of Herne Hill. I think that Ministers would be very wise not just to consider carefully and accept what the noble and learned Lord and the noble Lord said but to accept the recommendations that they made.
Thirdly—and this proposal does not by any means apply in every case or even in a very large number of cases—I say to my noble friend Lord Taylor of Holbeach that if he wants his Bill, as I do, he would be very wise to offer the super-affirmative resolution procedure used in the Legislative and Regulatory Reform Act 2006, which requires Ministers to take into account any representations, any resolution of either House and any recommendations of a parliamentary committee in respect of a draft order, laid for 60 days, particularly where, perhaps quite recently, there has been lengthy scrutiny of the legislation that brought the bodies into existence. Would it also not be wise to follow another precedent established by the 2006 Act, which is that there must be consultation with affected parties and that, following the consultation, the order must be laid in draft accompanied by an explanatory document? Those steps would provide substantial reassurance that the more controversial changes can be adequately examined, which would be further strengthened by an undertaking from Ministers that the legislation would be used never to increase but only to reduce the powers of public bodies.
Fourthly, a large number of public bodies, as we have heard, are included in Schedule 7. A Minister may by order transfer any of these bodies to one of the other schedules so that they may be abolished, merged or have their constitutional or financial arrangements modified. I realise that Ministers intend to hold regular reviews and that from time to time it will be clear that a public body has fulfilled its functions and is no longer required, but it is important, as a number of noble Lords have pointed out, that all public bodies that continue to function can do so with confidence and can use their independent judgment in carrying out their duties and in giving their advice to Ministers. If a public body faces the prospect that, by means of one order debated for an hour and a half, it can be transferred to a different schedule and by a second order merged or abolished, its confidence and its independence are likely to be undermined.
Many bodies on that list are important: the Environment Agency, the Health and Safety Executive, the Chief Inspector of Prisons, national park authorities, Ofcom and the OFT are there, just to pick a handful almost at random. Surely, at the very least, before moving a body from Schedule 7 Ministers should have to publish a paper explaining their intentions and allow an adequate period for consultation before any order is prepared. In some of these cases, Parliament may feel that the super-affirmative resolution procedure should be used. Some bodies, as the noble and learned Lord, Lord Woolf, has suggested, should be removed from the schedule entirely—some might argue that it should not be just a few.
The opposition amendment asks us to refer the Bill to a Select Committee. It does not require an instruction from the House for the Constitution Committee to consider the Bill. We have already done so. We stated that we will closely monitor the progress of the Bill and may report again to the House. What we could not do is carry out a detailed examination case by case of the large number of bodies covered by the Bill.
To send the Bill to a committee to carry out a full pre-legislative scrutiny would be to disguise an attempt to throw out the Bill at Second Reading without breaching the convention that this House does not reject Bills at Second Reading. I have served on two pre-legislative scrutiny committees. They are suitable mechanisms for dealing with Bills covering a limited number of changes in law, practice or principle. In this case, if the committee was drawn into scrutinising 481 separate cases, it is clear that it would be swamped by the weight of evidence, written and oral, and the Bill would effectively be killed.
For the Opposition seriously to obstruct, let alone kill, this Bill would be very odd politics. Mr Byrne, the shadow Cabinet Office Minister, has argued that the Government are carrying out the work of their Labour predecessor, in that two-thirds of the 192 bodies that are to be closed are those that he announced in March, that the tests proposed largely confirmed his approach and that he welcomes the principles of a sunset clause for quangos and triennial reviews.
My noble friend Lord Maclennan of Rogart offers a more tempting option, but I am extremely doubtful that even with a limited brief a committee could complete a useful job by the end of February that could not be better done by the House. I much prefer the proposal of my noble friend Lord Lester of Herne Hill. I hope, like him, that the Minister will, in the wind-up, give a clear undertaking that the Government will, at the start of the Committee stage, bring forward amendments to improve the process—it is on the process that most of the criticisms have concentrated—and include the adequate safeguards that have been suggested by noble Lords who have immense knowledge and experience in their own fields. I think that that is what the whole House demands.
My noble friend Lord Lester of Herne Hill referred to a comment made by the late Roy Jenkins about not digging trenches. I served for many years on the legislation committee under Lord Whitelaw. I have to say that I do not think that this Bill would have had a cat’s chance in hell of proceeding if Lord Whitelaw had been around. He would at this stage have made some pretty rough remarks to my noble friend on the Front Bench about not digging holes unless you can get out of them. I suggest to my noble friend that he quickly gets out of the mud before it becomes too deep. If he can do so, and if he can give us some reasonable undertakings—his right honourable friend Francis Maude has told me that he is sympathetic to much of what I have been saying—I will have no hesitation in voting for the Bill and against both amendments.
My Lords, I make it clear that, although I have been a member of and have chaired a considerable number of public bodies in my time, I am speaking without prejudice in this debate. Perhaps I may offer in evidence the fact that I currently chair two public bodies, neither of which is the subject of this Bill. One is to be wound up in March 2011, while the other is to be renamed, reformed, funded differently and given extended powers.
My role as chair in both cases is the same. I will work in a professional, consultative and considered way to deliver the outcome that the Government are aiming for as effectively and efficiently as I can—in one case, to wind the organisation up and, in the other, to deliver what will in essence be a new organisation. I hope that this illustrates that I am not in any way opposed in principle to the reform of public bodies. As further evidence, in my time I have participated in the merger of two public bodies and have closed another down. It is entirely right that review and reform should happen on a regular basis and for rational reasons.
As the Institute for Government reminds us in its report, Governments must seek to achieve a clear and sensible division between arm’s-length bodies, their sponsor departments and the public. However, I remain to be convinced that there are any rational reasons for some of the proposals in this Bill. There is no vision, no narrative and very little logic to suggest that this Bill represents forward movement or planned progression. On the contrary, the phrase that most readily springs to mind as I contemplate it is, “The urgent drives out the important”.
There is a desire to be seen leading the cull of quangos, which is promised by most incoming Governments, to simplify what by its very nature is the messy middle, as the Institute for Government terms it, between Whitehall and citizens. Also, of course, there is an urgency at this time to cut costs, if that was the aim, although we have heard from several noble Lords that this simply will not be achieved. For me, two important factors, which I thought were central to the coalition Government’s agenda and to how they intended to proceed, have been driven out by this rush to be seen to be culling public bodies.
The first is localisation. Is it not essential to the concept of the big society that power should be decentralised and devolved to the most local level possible and be free of political interference? How does that accord with taking so much power back into Whitehall through the abolition of arm’s-length bodies and with taking so much power back into government itself? Quangos were almost always set up with the aim of being clear about divisions of responsibility and making clear to voters where accountability lay.
The other principle that seems to have been abandoned is that of ensuring that the voice of the consumer, the user or the patient is strong in the development and implementation of government policy. I quote from the Cabinet Office paper, Building a Stronger Civil Society. One of the core components of the big society agenda is said to be,
“encouraging and enabling people from all walks of life to play a more active part in society”.
Almost all quangos in the list have lay representation on their boards—indeed, many have lay majorities—and were set up precisely to provide that strong consumer voice to which the Government say that they are committed. The lay representation provides not only a counter to professional interests but also strong grass-roots opinions about how policies work for those who are subject to them, as opposed to how a policy wonk in Whitehall or a parliamentary draftsman might expect them to work. Moreover, when people in charge of institutions and departments of state change so frequently, the lay representatives are often the longest-serving members of any body and provide the institutional memory. That memory is important, because those who do not observe history are doomed to repeat it.
I hope that the Minister will be explicit in his reply about how my two concerns are to be addressed: first, the commitment to localism versus the centralisation of power implicit in the Bill; and, secondly, the Government’s commitment to the consumer versus the threat to lay representation.
Like other noble Lords, I have two more serious concerns—the manner of introducing this legislation and the nature of the legislation itself. Even if the proposals in the Bill were sound, which I dispute, the manner of its introduction—with no consultation to speak of, with staff finding out via leaks and newspaper reports that their organisation was to be abolished, with chairs being given 10 minutes’ notice of the changes and so on—is absolutely insupportable. Staff in public bodies are not luddites, whatever the Minister thinks; they are devoted, skilled and committed people who want to do their best. You do not motivate staff or boards to co-operate by behaving in this way and I hope that the Minister will take the opportunity today to apologise to those staff and boards who have been so offended and distressed. In these troubled times, we are all dependent on the morale of staff in public bodies. Have the Government begun to consider the effect that the way in which this has been handled has had on that morale?
I must also mention, as others have, the draconian nature of parts of the Bill. It is no less than abuse of power and I know that noble Lords on all sides of the House will do their utmost to amend its more outrageous parts as the Bill passes through your Lordships’ House.
My Lords, I appreciate that I am the 34th speaker and that much of what I might have said in relation to the issues has been said with great force and eloquence by other speakers, so I shall confine myself to a few matters in relation to the generality of the Bill.
The starting point, of course, is the condemnation at the highest possible level that has been levelled at the Bill by the Select Committee. It is not a slap on the wrist; it is not a case of saying, “We doubt whether your judgment is correct in this matter”. The Select Committee is saying—although not using this exact term—that the Henry VIII clause, which is used as the heart, core and kernel of the Bill, is a monster. One therefore asks whether you can redeem a monster. Can you so curb the functions of a monster that it would be safe for Parliament to proceed?
The Select Committee put it in this way:
“When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’”.
It is saying that, when you are dealing with 481 out of more than 900 quangos, you are doing something that is antithetical to the very purpose of legislation. It is as fundamental as that and I do not think that I am doing an injustice to the Select Committee in saying so. I therefore again ask the question: is it redeemable?
Every speaker in the debate so far has assumed, in one way or another, that it is either redeemable in Committee or on Report, if it proceeds in the ordinary way, or redeemable having gone through the procedure of a Select Committee and returning to the House in about five or six months’ time. However, I ask the fundamental question: if the Select Committee is correct, and it seems to me that it is—it is a body of the highest possible distinction, with great experience, great understanding and great wisdom—how can this Bill possibly be redeemed in its present form? If I am wrong and it is a matter of devising a schedule of safeguards so severe and specific that the Bill can cease to be a monster, I would like to know exactly how that is going to be done.
Only the noble Baroness, Lady Scott of Needham Market, has referred to the question of how many bodies will be contained in each order that is made. The Select Committee put it in this way:
“Furthermore, the Bill as drafted appears to allow for the rolling up in a single ministerial order of changes to a number of diverse public bodies. Such bodies may even operate in unrelated policy domains. We are concerned that ‘omnibus orders’, covering a disparate range of institutions, pose yet more difficulties in terms of effective parliamentary scrutiny”.
Will the Minister who is to reply give an unreserved undertaking that it will be only one order for one body? That question can be dealt with by a monosyllabic answer in one way or another. It is of the utmost importance. As every Member of the House will know, moving orders en bloc can be done only with the unanimous consent of the House. This is not, of course, a matter that would transgress paragraph 10.13 of the Companion, but it would transgress the principle that you deal with one issue in one order. If you have an order that deals, for example, with 10 bodies, you are dealing with 10 issues. Therefore, such an undertaking is crucial.
There is also the question raised by the noble and learned Lord, Lord Woolf, of the inclusion of a number of bodies—I would have regarded them not as quangos at all but as independent judicial bodies—that have an invaluable and utterly priceless part to play in the administration of justice. The idea that they should have been included in the legion of the damned, as Kipling might have called those bodies listed in Schedule 7, is horrifying. It shows total insensitivity on the part of the Government that they should even consider that the independence of these bodies, which is so central to the very concept of the administration of justice, should ever be questioned.
I turn now to the specific matter of the inclusion of Sianel Pedwar Cymru—S4C, the Welsh language channel—in Schedules 4 and 7. It is my contention that this body is wholly unique. It is unique because it was set up with a commission. That commission was that it should do everything within its power—indeed, its existence is based on this—to preserve the life and future of the Welsh language. It is unique also in relation to the scene that existed 28 years ago when it was set up, when there had for many years in Wales been a long, bitter campaign of civil disobedience and lawlessness against those opposed to a Welsh channel. William Whitelaw, a man of immense understanding, diplomacy and integrity, ultimately came to a compact with the Welsh people and said, “You will have your channel”. A legislative framework was set up that guaranteed funds for the channel that would be adequate for it to carry out its commission. Indeed, its independence was guaranteed by statute.
The viability of that channel is now challenged and jeopardised by the fact that that financial guarantee disappears. The independence is jeopardised by the fact that it is contemplated that it should be merged with the BBC as a very junior, meagre partner. Its independence cannot possibly be real in those circumstances; indeed, the major decisions may well be taken by the broadcasting trust in London.
I do not believe that I overstate for a moment the anxieties that are felt in Wales concerning that loss of independence. Indeed, if one looks at the statements made in the last few days by Channel 4 as to its grave anxiety with regard to its own independence, one can well understand why the Welsh body is so afeared of what might happen in this situation. The continued viability and independence of S4C is crucial to the very existence of the Welsh language. The Welsh language is spoken by some 580,000 persons, including three or four of us in this House. It is one of the oldest living languages in Europe—it stems back to its Indo-European origins about 1,500 years ago. It was a living language 1,000 years ago, when French was only a patois of Latin. In those circumstances, I ask the House to consider that it is part of its trust in relation to the Welsh language to regard the situation of S4C as being wholly unique. Parliament has the sovereignty to amend all the legislative structures but, in so doing, it would be reneging on the solemn compact that was made between a very honourable gentleman and the people of Wales 28 years ago.
My Lords, if there were no other reason for the Government to think again, the observations of the Select Committee on the Constitution and the observation of the noble and learned Lord, Lord Woolf, in our deliberations today are reason enough. Henry VIII clauses do not make good democracy and the independence of the judiciary is the cornerstone of our system of law and justice.
Of course we need to keep the number of quangos and public bodies and their effectiveness, cost-effectiveness and purpose under review. If they are no longer relevant, if they have fulfilled their purpose, they should be wound up. However, there are real and widespread concerns at the sweeping, precipitate and ill-considered nature of the Government’s proposals. For a Government committed to empowering the people, there has been a quite extraordinary lack of consultation.
There are puzzling contradictions in the Government’s overall position. The Government keep emphasising that they want to improve the quality of democracy and to reduce the size of what they like to call the state. They say that they want to bring power and decision-making closer to the people. How such concentration of wide-ranging powers in the hands of Ministers will help to achieve those objectives is to me—and, I think, to most people—a total mystery.
Another disturbing contradiction is how, if it is to be argued that Ministers and the Government will be made more democratically accountable to Parliament, that can be reconciled with the proposals that will come before the House next week that seek to reduce the number of MPs and introduce what, in many cases, will be larger, less-community-based constituencies, in which MPs will inevitably become less accessible. In many ways, MPs are already overloaded. How will those new sinister proposals help them better to fulfil their responsibilities of scrutiny and holding the Executive to account?
I tremble at the danger that years of experience and dedicated service that have provided profoundly significant contributions to the quality of our society, ranging from our system of law to our heritage and environment, will be all too rapidly trashed and thrown away as centralised bureaucracy or crude profit making take over. The Forestry Commission provides an outstanding example of such service. At this point, I unreservedly pay a warm tribute to my noble friend Lord Clark of Windermere for the outstanding contribution that he made as chairman of the Forestry Commission. Those of us who know him as a friend in the county of Cumbria appreciate that few people understand the countryside better than he does.
The Forestry Commission has learnt from 90 years of experience and has become a model example, with highly motivated staff at all levels. The commission is dedicated to the nation’s needs—not least to combating climate change—to biodiversity and to the quality of our scenic heritage as well as to the spiritual uplift and public enjoyment that forests can provide for the nation. The commission’s imaginative work on public accessibility to woodland and to adventurous experiences has been outstanding. Why put a question mark over all that? Have the Government looked at what has happened in New Zealand, Papua New Guinea, Indonesia, Nepal or indeed—closer to home—Sweden?
I have the honour to be president of the Friends of the Lake District and vice-president of the Campaign for National Parks, and I know that the Bill has considerable implications for the national parks. If I dwell for a moment on the national parks, I do so because the concerns that arise in that context have direct relevance to many other bodies that are covered by the Bill. It has been suggested that the national park authorities have been included in the Bill as a precaution, in case the imminent review of national park authority governance results in proposed changes that might require a revision of existing legislation. However, if that is true, it is surely a highly questionable way of developing legislation to include powers that may not be necessary or appropriate and that have not been subject to consultation with the affected bodies.
Clause 3 will give the Minister the power to make provision by order to
“modify the constitutional arrangements of a body or office specified in Schedule 3”,
which includes national park authorities and the Broads Authority. The term “constitutional arrangements” refers to a wide range of arrangements relating to the structure, governance and functions of such bodies. The provision appears to allow Ministers the power to change many aspects of the national park authorities’ work, including their name, their accountability to Ministers, their powers to employ staff, the number of their members, the procedures for members’ appointments and the appointment of a chair. For example, rather than being elected by the national park authority members, the chair could be required to undergo a pre-appointment hearing before taking up the post.
Clause 5 will give the Minister the power to make provision by order to,
“modify the functions of a body, or the holder of an office, specified in Schedule 5”,
which includes the national park authorities and the Broads Authority. The clause will also give the Minister the power to,
“transfer a function of such a person to an eligible person”.
An “eligible person” is defined as,
“a Minister, … any other person exercising public functions, … a company limited by guarantee, … a community interest company, or … a body of trustees”.
National park authority functions include preparing and publishing a national park management plan. In their role as local planning authorities, national park authorities determine planning applications and prepare a suite of planning policies to cover each park. So this clause would appear to allow Ministers to transfer the national park authority’s planning function to a third party, including the Ministers themselves.
Clause 6 gives a Minister the power to make provision by order to authorise the national park authority or Broads Authority to dedicate some or all of its functions to an eligible person. These are the only bodies listed in Schedule 6; while not explicitly relating to an authority’s planning function, it is hard to imagine what else this could be about. National park authorities may choose to enter into agency agreements with other authorities on the delivery of their development control function. This ensures that the authority remains ultimately responsible for the delivery of the function and is able to monitor and when necessary amend arrangements so that they do not prejudice the delivery of park purposes. Full delegation would arguably not give the same ability meaningfully to monitor arrangements, as it would delegate responsibility for them to another body.
Clause 7 provides that an order under the above clauses may include consequential or supplementary provisions—for example, the funding arrangements of the transferring authority. Presumably that would mean that when a national park authority transferred some of its functions to an eligible person, the appropriate funding would be transferred along with it.
It is frankly unconvincing that national park authorities and the Broads Authority have been included in the Bill and that Ministers are apparently seeking to give themselves power to exercise control over almost every aspect of national park authority operation and governance. As I have said, that seems to conflict with the rationale being deployed elsewhere in government to devolve as much decision-making as possible down to the local level and not to constrain local flexibility and choice. It seems inevitable that increasing the scope of government involvement and scrutiny to the level proposed would undermine the national park authorities’ independence. That appears in stark contrast to the position that the Conservative Government, to their credit, took when the Environment Bill passed through Parliament in the 1990s, when they demonstrated a strong commitment to establish independent authorities for the national parks.
The current model of national park authorities originates from an independent review in 1991, the Edwards review, whose priority was to establish bodies that could effectively tackle the challenges that face the parks, meeting the nation’s aspirations for them while being accountable and sensitive to the legitimate needs of park communities. The review recommended independent national park authorities, citing the principal advantages as including clarity of vision and self-confidence, which would allow the authorities to set their own agenda and pursue it resolutely. The Government accepted those recommendations and agreed that independent authorities would provide those benefits—and that was a Conservative Government. By including national park authorities and the Broads Authority in the Bill, the Government seem to be taking a significant backwards step, which would undermine the authorities’ independence and their ability to deliver their functions on behalf of the nation. They would constantly be looking over their shoulder and become risk averse, as any faltering innovation could be seized on by Ministers as justification for functions to be transferred or delegated to another local authority, charity or public body.
Altogether, this is not a reassuring future for those charged with protecting and enhancing one of the most precious assets of our civilised UK. My noble friend is right to insist on his amendment. Much of what I have said about the parks applies very directly to other parties.
My Lords, Parliament has always been rightly jealous of granting Henry VIII’s powers to Ministers and, where sought, it has ensured that there are safeguards. The Legislative and Regulatory Reform Bill was considerably amended in 2006 to ensure such safeguards and I support the suggestion, made time after time, that the Government should seriously consider the super-affirmative resolution procedure and the consultative proceedings therein enshrined.
The Select Committee on the Constitution—on which I used to serve—has, in a very short time, produced trenchant criticisms of the whole architecture of the Bill. Its conclusions are couched in some of the strongest terms that I have read. This House owes the committee a great deal for its industry. It seems to me that the desire of the Government to reform, in all, 481 bodies and their rationale of which bodies are in or out is not always easy to follow. The Government have thrown the whole kitchen sink at the bodies mentioned in the schedules, steamrollering through parliamentary processes without adequate consultation and expedited consideration. My noble friend Lord Richard spelled out the extraordinary speed that taking the considerations must have had.
It occurs to me that this is a reversal of the,
“openness and transparency in public services that this Government seek to achieve”.—[Official Report, Commons, 14/10/10; col. 27WS.].
That was the rationale of Mr Francis Maude, the Minister responsible in the House of Commons. The Select Committee refers to the Government,
“pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation”.
Since we are governed in the main by conventions, there is nothing illegal in what the Government are doing. Yet is it proper or right to do it in this way? Many of these public bodies are set up by statute or by royal charter—I have set up quite a few myself—but all after prolonged parliamentary debate in both Houses. The committee observed that the Bill fails two tests, on propriety and the adequacy of procedural safeguards. The committee has not overstated its observations but, as my noble friend Lady Royall quoted, this is the kind of Bill that “drains the lifeblood” of our consultative processes.
My criticisms apply to the procedures proposed by the Government and are not diminished in any way because of any sympathy that I may have for the need to reform the quango system and for making decision-making more accountable to Ministers and Parliament. Quangos have their purpose. They can operate freed of the more bureaucratic processes of the Civil Service, but once they have achieved their objectives there is a need to scrutinise their effectiveness and, on occasion, their very existence. I do not oppose in general the Government’s objective on this point. The danger of quangos is that, once set up, they have an organic life of their own. Some become oversalaried and overmanned.
We will hear a lot of special pleading in these debates. I doubt if I will take part in them, but I listened with great care to the powerful speech dealing with the judicial or quasi-judicial bodies—those dealing with the judicial system—by the noble and learned Lord, Lord Woolf. I would certainly be tempted to support him on those occasions. If I may be so bold as to advise the Minister, I suggest that, before we start the Committee stage, some of those bodies that the noble and learned Lord mentioned should be taken out of the Bill. That will make the proceedings much easier for the Government. His was a powerful speech and one that we should listen to. What is wanted, and here I am encouraged by some of the Government’s thoughts, is a proper and considered root-and-branch appraisal of each quango and its functions, particularly how much control there is by central government over its staffing and what appraisal there is by the Government of the salaries of its officers.
How have things got so out of hand with the salaries now paid to the heads of quangos? The Prime Minister is probably paid at much too low a level, but it is a useful yardstick for what is an appropriate payment for others in the public service. Where there is a proposal to pay more, and there is sometimes a case for that, there should be a clear justification for that kind of salary in the public sector. Where have the words “with the consent of the Treasury” gone in legislation? Who now controls the level of the remuneration?
It was quite a shock to me, after only a few months as Attorney-General, to be asked for my views as to whether a very senior government lawyer should be paid a bonus. He was indeed a good man, but by what standards was I to judge his suitability for a bonus? In fact, I had never heard of the word “bonus” for the Civil Service before. Salaries for those in public work should be at the right rate for the job and there should be no question of a bonus.
I have a particular point regarding the published proposals to cut Ofcom’s manpower by 25 per cent. I hope that the need for the proposed manning has been properly assessed, along with its effectiveness, in the time that it takes to deal with complaints and indeed the importance of its remit. During the Recess, I was concerned about a press report on the expenses claimed by some officers of Ofcom for hospitality running into thousand of pounds. I have referred this to the Minister already. It is the principle of paying out of the public purse for hospitality of officers of a body of this kind that concerns me.
Should a regulatory body either offer or receive significant hospitality? When I used to sit as a Crown Court recorder, I would be very wary of accepting any hospitality in any shape or form. It would have been unsuitable and inappropriate—even more so when I was Welsh Secretary for six years, exercising important planning powers. I would certainly run a mile from accepting any significant hospitality, and I would hope that my Permanent Secretary would have protected me from such a mistake. Is there any reason why a regulatory body should be either receiving or paying out for hospitality?
There are a number of clauses referring to the National Assembly for Wales. In the absence of a proper briefing, the idea of enabling legislation bringing together the functions of the Countryside Commission, the Environment Agency and Forestry Commission Wales appears very appealing, since agriculture is already a devolved matter. My specific question for the Minister is: am I right in presuming that these proposals are at the request of the Welsh Assembly? In a recent comment in the Assembly on 12 October, the First Minister stated that he was not consulted on some of the proposals in the Bill affecting Wales. Was he consulted on the section dealing with the powers of Welsh Ministers? These are important matters for the Assembly. In the time available, all I need say about the powerful speech by my noble friend Lord Elystan-Morgan is that I support every word that he has said.
These examples of the lack of consultation and the hurry in the preparation of the Bill may well be significant and may apply more generally for many more organisations that are affected by the Bill. I therefore support my noble friend’s amendment.
My Lords, I found myself on the horns of a dilemma as I read the Bill, and that was before I read the Constitution Committee’s report. Much as I wish for a diminution of the state’s role and approve of the wholesome objectives, spelt out in Clause 8, of,
“increased efficiency, effectiveness and economy in the exercise of public functions”,
“securing appropriate accountability to Ministers”,
the means by which they are to be achieved are not easily justified, even by the noble ends in view. That point has been made by several noble Lords in the course of our debate this evening.
Among the options that the Government considered, according to the impact assessment document referred to by my noble friend Lord Crickhowell was,
“not bringing forward a Bill and making the necessary statutory changes to the bodies in separate pieces of legislation”.
Although the approach represented there was obviously the proper way to proceed, the impact assessment states:
“It was decided that this would make it difficult to deliver the Government’s policy intentions and be an unnecessary burden on parliamentary time. Changes would either have to wait until appropriate departmental Bills were introduced or wait until time could be found for separate Bills”.
Clearly time was of the essence for the Government, rather than parliamentary propriety. Indeed, the Government decided to bring forward a single Bill to enable the changes to be made through the less time-consuming process of secondary legislation—mainly, it seems, in the form of orders subject to affirmative procedure. Certainly, secondary legislation has all the advantages, in terms of speed, that the Government claim for it, but orders cannot be amended in either House, are subject to time-limited debates and it is not our practice, in this House, to vote on them. There are severe parliamentary drawbacks to this procedure.
Nevertheless, it is proposed that public bodies that have, for the most part, been established in the past by well considered statutes be abolished, merged or modified in their internal constitutional or funding arrangements by the speedy processes of secondary legislation. If only some allowance was made for the possibility of primary legislation being required for certain important changes involving lengthy, complex orders and difficult issues, this might have softened the Government’s approach and won some more friends for the Bill. However, it seems to be ruled out. I ask my noble friend on the Front Bench for an assurance when he winds up that I am wrong about this and it is still possible for primary, rather than secondary, legislation to be used in this context. I still commend the thought of an amendment to allow primary legislation and I hope this will find favour with the Minister.
When one looks at individual bodies that one is familiar with, in my case there is the Welsh-language channel, S4C. I appreciate much of what the noble Lord, Lord Elystan-Morgan, said. I remind the House that my noble friend Lord Crickhowell played a prominent part in the establishment of S4C so many years ago. It is quite properly listed in Schedule 4 as a body subject to funding changes. Under the Broadcasting Act 1996, S4C’s annual budget increase is linked to the retail prices index, and that link is to be severed. It has also been announced that S4C is to be part funded from the TV and radio licence fee from 2013. We tend to regard that as the BBC licence fee but that is technically incorrect.
The Welsh channel authority is also included in Schedule 7 as a body that may be shifted to another schedule, possibly relating to a change in its constitution. Again, the essence of that change, and what it is hoped to achieve, has been spelt out by the Secretary of State for Culture, Media and Sport. Of course, at the end of the day such changes as are made will be by secondary legislation, with all its parliamentary limitations, to a body established and developed by primary legislation over some years and after a great deal of discussion. Such extensive discussion may again be necessary, judging by the ferment in Wales at present, but that would be possible only with primary legislation.
It has been suggested by a number of noble friends that some orders might be subject to the super-affirmative resolution procedure, but having read the relevant paragraphs in the Companion to the Standing Orders and the Constitution Committee’s comments, and having seen the dilatory complexities of that procedure, I cannot see a Minister volunteering an order to be subject to it because there is a very clear danger that he would lose control of his legislation. Therefore, it is no wonder to me at any rate that the procedure has not been frequently used.
A wise man once told me that in considering legislation one should always think what the Opposition might do if they inherited the powers sought in the legislation. It occurred to me that, at their worst, some future set of noble Lords on the Front Bench opposite might include your Lordships’ House in Schedule 7 as a possible candidate for modification, if not abolition. However, that is a very extreme scenario which would, I hope, be thwarted by wiser noble heads on the Back Benches.
Nevertheless, the precedent established here of a massive subjection of public bodies, largely established by primary legislation, to possible change by secondary legislation is not a happy one. I hope that some amendments can be passed in Committee on the Floor of the House to tie the possible changes to public bodies even more firmly and exclusively to the excellent objectives set out in Clause 8 and the principles and values that we cherish.
I am a member of the Delegated Powers and Regulatory Reform Committee, which will meet tomorrow to consider the Bill. However, I wish to make it clear that I am speaking for myself tonight. I think the Minister will have already realised that the structure of the Bill is not wildly popular on either side of the House, and that he may have some difficulty with it. Yet it is odd that there is widespread agreement on the need to reform and review from time to time the functions of quangos. That widespread agreement applies in this House and in the House of Commons. We know that we need quangos, but we also know that from time to time we need to review them and sometimes wind them up. Indeed, the previous Labour Government had a very impressive record on winding up quangos. This Government will be hard put to live up to that record, despite this overwhelming attempt to do so.
I do not wish to repeat all the arguments that many noble Lords have made so well, but it is clearly wrong to use powers of this nature. The first six clauses start with the words,
“A Minister may by order”.
When you see those little words grouped together in an Act of Parliament, you need to say, “And what comes next?”. All six clauses spell out Minister’s powers to wind up, change, change the constitution, and change the staff and personnel of the many quangos listed in the Bill. As has been pointed out ably, including in the previous speech, he can do that despite the fact that these bodies were set up by primary legislation.
That brings us to the deadly issue of the Henry VIII powers, which we look at from time to time on the Delegated Legislation and Regulatory Reform Committee. If you have Henry VIII powers—and I am one of those who take the view that in recent times we have probably used them more than we should—we need to look at them very carefully. The Bill takes the situation way beyond that. It is as though Henry VIII has risen from the grave disguised as a parliamentary draftsman. It is a Henry VIII Bill. He would have been very happy with it. He did not want to be a total and absolute dictator; he would have been quite happy to hear the debate, as long as it ended up with the position he wanted. That is what the Bill is doing and is why the Minister has so much trouble on it. It will go on being trouble for him, because it cannot possibly go through in its present form.
The noble Lord, Lord Crickhowell, said that we could introduce some ways of softening it with a super-affirmative resolution procedure. I am inclined to say that, given the agreement across the parties in both Houses on the need to look at the way we run quangos and how we adjust them over time, we might look at something more adventurous which enables us to review their work over time. What better role for this House? It could be rather good at that, and we ought to be considering things of that nature.
At the end of the day, as has been ably said, what is so troubling about the Bill is that the Executive are giving themselves enormous powers over parliamentary procedure. That is what we are rebelling against—all of us, I think, on both sides. We are saying that this is a dangerous encroachment on parliamentary procedure by the Government. It cannot be allowed to go on like that. All of us are saying that, with a couple of exceptions. About three people so far have given outright support to the Minister. He has three strong friends there, but if I were him I would not be listening to them too carefully. They may not represent the majority. It would be worth while him taking that on board.
I want to end with a question, which has run through several of the speeches and is referred to in paragraph 13 of the report of Select Committee on the Constitution. How can this House, whose primary role is as a revising Chamber, possibly revise if the Bill goes through in its present form? It cannot do so, as far as I can see. If the Minister has something up his sleeve which will enable us to revise and review this work after the Bill is passed, he has a duty to tell us tonight. If, as I suspect, the Government have not really thought this through, it would be better if they took it away and tried to get some cross-party agreement on a need for some form of constant review of quangos, which looks at what they do, how they do it, and how they are structured and funded. This reinvention of Henry VIII powers as a Bill is profoundly unhealthy to parliamentary democracy. I say to the Minister, please take the Bill away, if only for the sake of his own Back-Benchers, who look increasingly uncomfortable with it.
My Lords, at this time of the evening brevity is the only virtue. I will make three points—two general and one particular. The first general point was ably put by the noble Lord, Lord Soley. This is by far the most important issue before the House this evening. We have heard this from the most learned and authoritative Members of your Lordships' House, and from the Sixth Report of the Select Committee on the Constitution. This is, constitutionally, a bad Bill that should not go through in anything like its present form. It needs further detailed and careful scrutiny, which will be difficult in Committee on the Floor of the House. Therefore, I feel strongly inclined to support the amendment of the noble Lord, Lord Hunt of Kings Heath.
I feel rather like a good headmistress—of course, I was a headmistress. Along with the noble and learned Baroness, Lady Scotland, I am disappointed that the Government have brought before us a Bill that exemplifies the worst features of some of the Bills that we have faced in the past decade or more. It is mistaken and must be put right. That is my first and, I should think, most commonly agreed general point.
Secondly, it is a mistake to assume, as some parts of the Bill seem to, that all arm’s-length bodies, quangos or whatever we choose to call them, are the same kind of body. They differ widely, both in their relations with government and, importantly, with the Civil Service. As we have heard, they are often extremely useful, effective and genuinely non-political. The fact that they are not elected is irrelevant if the people who serve on them know what they are doing and are committed to being non-political, dispassionate and impartial. They also have time to devote to their particular subject matter and to considering evidence. The membership of these bodies is known and accessible to the general public. As I know well from my days as a quango member, one can be reached by the general public: they know who is trying to solve a problem. We need to take into account the very different nature of these bodies. Therefore, as has been said many times, we need time to go through, one by one, what it is that they do and whether they are out of date or are working.
Lastly on the particular issue, I ask for a stay of sentence on the HFEA. I would probably be expected to say that. I do not have time now to put forward a proper defence of this body. It is a highly specialist body that offers a form of protection against exploitation—this is what is most valuable about it—to a group of highly vulnerable people who are trying and failing to conceive. These people are liable to exploitation, which is why the regulatory and supervisory functions of the HFEA are so important. Apart from that, it has now become a unique research tool in a branch of medicine where research is still badly needed. As we have heard from other noble Lords, its database must be kept up and properly managed by a specialist body. I make a special plea for it: after all, it is one of my babies.
My Lords, given the tenor and content of many of the excellent speeches that we have heard in the debate so far—particularly those from the noble and learned Lords, Lord Morris, Lord Woolf and Lord Mayhew, the noble and learned Baroness, Lady Scotland, the noble Baroness, Lady Scott, and the noble Lord, Lord Lester—the Bill, in its present form, seems to be in trouble. I hope very much that when the Minister replies to the debate, he will accept that it needs significant changes and that we need more time, more detailed scrutiny and less confusion as to its purpose.
As others have said, this is a seriously important constitutional measure. We should, in the interests of good governance over the long term, take whatever time is necessary to get a creditable and workable solution to the problems that we all recognise affect the good governance of our arm’s-length bodies. Our aim should surely be to build into our constitutional arrangements in this country a well-thought-through system which sets out clearly how, and under what conditions, arm’s-length bodies can be created, funded, reviewed and, where necessary, dissolved. If we get it right, it can surely form another piece of the codified constitution which we really should be creating for this country and which, indeed, is the sub-text to this Bill.
Most of the noble Lords who have an association with a quango named in the Bill have argued—in some cases, rather persuasively—that it should be removed from whichever schedule it appears in. Rather perversely, and rather like the noble Lord, Lord Roberts of Conwy, I should like to argue for a quango to be included in death row in Schedule 1 to the Bill. I refer to the UK Film Council, which, as your Lordships will be aware, was summarily abolished by the Secretary of State for Culture, Media and Sport in July 2010. The Secretary of State must have known that this Bill was in preparation but, for some reason, he did not see fit to include the UK Film Council and therefore it does not appear in Schedule 1. Given that it is to be abolished, I respectfully suggest that it is not too late for it to be added to Schedule 1.
Abolishing the UK Film Council threatens one of the success stories of the past 10 years, as UK films have reached out to British and overseas audiences, and film has become a dynamic part of the creative industries and the creative economy. If the UK Film Council were included in Schedule 1 and the Bill were amended along the lines of the discussions that we have had today, we would have a chance to discover why it is being abolished and what plans the department has to ensure that the hard work and success of the past decade continue.
Today of all days, we should be celebrating with our film industry Warner Brothers’ very welcome decision to invest in Leavesden film studios, the home of the “Harry Potter” films, but instead we are excluded from the process. We know nothing about what is in mind and we do not know how and under what conditions the vital functions undertaken by the UK Film Council, and the expertise that is currently employed there, will end up. Naturally, I hope that good sense will prevail and that they will eventually go to the British Film Institute, of which I am a former director. However, whichever body it is, it is vital that it is fit for purpose and can serve the needs of audiences and the British film industry.
I hope that my rather counterintuitive example of the UK Film Council has demonstrated that we lack a proper process—a matter about which other noble Lords have spoken. We need a properly constituted Bill and we need it now.
The Minister has been given a whole slew of advice today and, in the event that the amendment proposed by my noble friend Lord Hunt of Kings Heath falls, I hope that the Minister will listen carefully to the advice that he has received so that we can in future, and in the public interest, deal properly with arm’s-length bodies.
My Lords, like others, I have no problem with the declared ends of this Bill, but I have a fundamental objection to the means.
I declare an interest as a member of the Constitution Committee, like my noble friend Lord Crickhowell. Many speakers have already referred to our report but perhaps I may remind the House of paragraph 13, which has already been mentioned by the noble Lord, Lord Soley:
“The Public Bodies Bill … strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements. In particular, it hits directly at the role of the House of Lords as a revising chamber”.
We go on to say that the Bill,
“is concerned with the design, powers and functions of a vast range of public bodies, the creation of many of which was the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies”.
My noble friend Lord Blackwell thinks that we should be denied such opportunity because it would take too much time. That does not follow at all. One Bill can make specific changes to a number of Acts.
The crucial point is one of principle. Our report makes clear the objection to the Henry VIII provisions contained in the Bill. I am conscious that Parliament has variously granted such powers before, but that is not an argument for extending their use and certainly not for accepting them on the terms embodied in this Bill. If they are to be used, there has to be a compelling case; if they are employed, they need to be subject to rigorous parliamentary scrutiny. Neither condition applies in this case.
As Liberty notes in its briefing on the Bill, amendments to legislation should be properly debated and considered by Parliament with the ability for amendments to be proposed and implemented. As it says, secondary legislation should not amend primary legislation in relation to anything other than the most minor details. We are not dealing here with the most minor details. We are dealing with a measure which directly affects bodies established by statute. We are dealing with a measure which not only creates the basis for some of those bodies to be abolished, merged or have their functions modified, but also provides for a great many to be subject to a form of living uncertainty. The principal argument for drafting the Bill in this way is not one of principle but rather one of convenience in that government may not have the time to get individual measures through in the future. That is insufficient to overcome the basic problems inherent in this measure. My noble friend Lord Blackwell described it as a “bold Bill”. I regard it as a lazy Bill.
The safeguards that it embodies are inadequate. For orders made under the Human Rights Act and the Legislative and Regulatory Reform Act, there is at least some degree of parliamentary supervision. There is no such supervision provided for in this Bill. As we have heard, orders are subject to the affirmative resolution procedure. In other words, as my noble friend Lord Roberts of Conwy explained, they are subject only to short debate, are not amenable to amendment, and are not usually rejected by this House. There is no provision, as with super-affirmative resolutions, for consultation or to take into account representations made on a draft order. If an order is introduced to transfer a body from Schedule 7, Parliament will be in the dark as to what is then likely to happen to it. It has to await an order made under the schedule to which it is transferred.
There are also limited safeguards in respect of Ministers contemplating orders under Clauses 1 to 6. The presumed safeguard in Clause 8(2), itself limited, has to be read in conjunction with Clause 8(1) under which Ministers must have regard to the need to achieve increased efficiency, effectiveness and economy in the exercise of public functions. In short, change may be driven by executive assessment of effectiveness. There may be a case for that, but it should not come under the rubric of a safeguard. Various safeguards included in the Legislative and Regulatory Reform Act are omitted.
Given the debates we had on the Legislative and Regulatory Reform Bill and before that on the Regulatory Reform Bill, it is remarkable that the Government have sought to rely solely on the affirmative resolution procedure. Also, given Section 3(6) of the Constitutional Reform and Governance Act 2010, it is surprising that officials appear unaware of the constitutional import of what is proposed.
I turn to Schedule 7. I was going to say more, but many noble Lords have dealt with it in some detail. Again, constitutional principles are engaged, not least, as the noble and learned Lord, Lord Woolf, said in his powerful speech, the constitutional separation of the Executive and the judiciary. The schedule includes bodies that the Institute for Government refers to as independent public interest bodies, bodies which require statutory independence from government to fulfil their duties with public confidence. They fulfil roles where impartiality is not only required but needs to be seen to be exercised. The institute gives various examples, as indeed does Justice in its briefing on the Bill. These bodies have to operate at arm's length from government and may indeed have to adjudicate in cases to which the Government are a party.
Let us take the Information Commissioner. He may have the strength of character not to be influenced by the prospect of an order being brought forward to transfer his office to another schedule. Yet imagine what may happen if in a particular case he finds in favour of the Government and decides information held by a department does not have to be disclosed. Critics may then say, “Well, he would reach that conclusion, wouldn't he? He's worried that otherwise the Government may move to abolish his office”. So long as the Information Commissioner is listed in Schedule 7, that danger will always exist. I know that the Government have no intention that such functions should be affected by government review. However, for a Minister to say that that constitutes the Government's intention is inadequate. Current intentions do not bind future Governments. As long as the Bill continues as drafted, Schedule 7 has the potential to have a chilling effect on the bodies listed.
I very much agree with the noble Lord, Lord Lester of Herne Hill, that we should be looking for solutions to problems, not simply identifying problems. The prime mischief in the Bill is to be found in Clause 11 and Schedule 7. The Government need to consider as a matter of urgency the use of super-affirmative resolution procedures, utilising other safeguards embodied in the Legislative and Regulatory Reform Act and, as recommended by the Institute for Government, removing independent public interest bodies from Schedule 7. I regard those as the minimum necessary changes. I am not yet persuaded that Clause 11 and Schedule 7 should remain in the Bill.
There is an alternative to the Schedule 7 approach. The Government plan to have a triennial review of non-departmental public bodies. The more appropriate approach would be to have a public bodies Bill in each Parliament, thus enabling concrete proposals to be put before Parliament and given proper scrutiny by both Houses. That would avoid the objections that attach to the Bill.
My Lords, the Minister will not by now be surprised or unaware that many noble Lords and, indeed, many organisations, believe that there are some fundamental problems with the Bill. There are two main problems. One is the constitutional issues, which have been referred to by many noble Lords today. The Minister has to satisfy the House as to why the Government need such draconian powers to abolish or alter so many organisations that Parliament has spent time scrutinising at length over the years. The Bill allows any Minister to abolish or alter any arm’s-length body without proper recourse to Parliament. Secondly, apart from the constitutional limitations of such a course of action, there are very serious implications for the independence of many of those organisations.
If the Bill proceeds, I think that the Government will need to explain to the House with some evidence why—to use as examples—the HFEA and the HTA and other health and social care bodies are included on the lists in the schedules, particularly when we already know that at least one, if not two, health Bills are coming down the track in the next year. The HFEA and the HTA are very good examples of where the Bill fails. When the Human Tissue Authority was being discussed by the House, my noble friend Lord Warner said, when he opened the Second Reading debate:
“This Bill will provide a comprehensive statutory framework needed to ensure the appropriate use of human organs and tissue”.
The Bill was remedying and brought forward as a response to the scandals revealed by the Alder Hey and Bristol inquiries. The noble Earl, Lord Howe, who was then the Opposition health spokesman said:
“I have no hesitation in welcoming the Bill; and I welcome in particular its emphasis on informed consent and on unambiguous regulation of the uses of human tissue” —[Official Report, 22/7/04; cols. 366 and 422.]
The Bill spent almost 50 hours on the Floor of both Houses, and that does not involve pre-legislative scrutiny, Select Committee and other debates which we know took place around that emotive issue. The HTA was created to deal with hugely sensitive issues, and ones in which the public need to have confidence. What has changed since the Bill came into being?
The HFEA was mentioned by the noble Baroness, Lady Warnock, and others. The two Acts which created the human fertilisation and embryology framework clocked up between them a total of more than 100 hours on the Floor of both Houses of Parliament—again, not counting any pre-legislative scrutiny debates or Select Committees involved in that, and the most recent HFEA Act had pre-legislative scrutiny. In the Second Reading debate, the noble Earl, Lord Howe, said:
“While the opinions expressed by noble Lords have been wide-ranging, we can all agree that as a House of Parliament we have been tasked with addressing issues of the utmost gravity, which the British public rightly expect us to examine forensically and with due sensitivity”.—[Official Report, 21/11/07; col. 862.]
He was, of course, completely correct. In both these cases Parliament was doing its job properly. This Bill does not allow us to do our job. I agree with my noble friend Lady Pitkeathley that it is, indeed, an insult to this House.
Most recently I was involved in the Equality Act, and again we created extra time to discuss the Bill on the Floor of the House, with agreement across the House. As a result we gave the Equality and Human Rights Commission many new duties for the disabled, for women and for other groups. I cannot think how the Government can think it acceptable to try to alter or abolish parts of the UK equality framework by affirmative order which cannot be properly debated or discussed. I know the Minister has said that there will be consultation with interested parties on any of the proposed changes, but that is to be expected—that is a minimum. It is not a substitute for parliamentary scrutiny.
I realise that it is customary to welcome Bills and to look forward to discussing and improving them in their passage through your Lordships' House, and like other noble Lords I acknowledge the need to look at arm's-length bodies and to ensure that they are fit for purpose. But this Bill does not do that. If it did, we would not actually have a Bill; we would be having a series of reasoned discussions. Some of it might require legislation and some might not. Some of it might lead to changes or the cessation of work of some of these bodies. That is a sensible, democratic and reasonable way to proceed. Unfortunately, the Government have decided to take, as it were, the flamethrower approach.
Like other noble Lords I have every respect and affection for the Minister, but I regret that I do not welcome this Bill. It is deeply flawed. Along with other noble Lords, I shall be supporting the amendment to be moved by my noble friend Lord Hunt. When we get the Bill back from the committee, or indeed if we proceed to the next stage after this evening, I shall be joining others to challenge the principles in the Bill, and I shall be asking for a full discussion about all the arm's-length bodies about which I have a particular interest and knowledge.
My Lords, in the 10 years that I have been a Member of this House I have been used to seeing Bills, some of them good, some of them bad and quite a few of them what I call curate's egg Bills. I wish that this was a curate’s egg Bill. It seems to me to be at the very end of the spectrum, and it is not the good end. Like my noble friend Lady Scott of Needham Market, I support the Bill's aims in many cases. I am not a fan of quangos. Where they are needed, they should be as lean as possible, and they should be kept to areas where they are necessary But the way in which this Bill proposes to deal with quangos is undemocratic and entirely unacceptable. It requires very substantial changes if it is to go through its parliamentary process.
It now seems quite a long time ago that the noble Baronesses, Lady Meacher and Lady Blackstone, questioned why some organisations are in the Bill while others are out. In many areas it does seem to be quite arbitrary. The noble Lord, Lord Beecham, pointed out that the Audit Commission—which has been told that it will be abolished with great alarums, which I support, unlike the noble Lord—is not mentioned in the Bill. I have been through the Bill time and again looking for it; I am astonished—it is not there. I can only assume that that is because there is primary legislation coming along, in the form of the localism and decentralisation Bill that we are expecting in Parliament soon, in which it can be included. So it seems that the question of which of these organisations will be subject to proper democratic parliamentary scrutiny, as will be possible in that case, and which will not—as it stands at the moment, these will be plonked into Parliament in an entirely unsatisfactory and unamendable way—is arbitrary and random.
I was interested in the amendment to be moved by the Labour Party about sending the Bill to a Select Committee. Again, in the 10 years that I have been here, I have not come across a Public Bill Select Committee, although there have been one or two, so I looked in the Companion to see what it says. Paragraph 8.119 reads:
“A public bill … may be committed to a select committee … when detailed investigation is considered desirable or when the hearing of evidence is considered necessary".
There is a strong case to be made as far as this Bill is concerned, particularly in view of the reaction all around the House that this might be a good idea. Paragraph 8.121 reads:
“When the committee has completed its deliberations, it makes a report to the House on the provisions of the bill, recommending whether or not it should proceed … If it considers that the bill should proceed, the committee reports it with such amendments as it thinks fit, and the bill is then recommitted to a Committee of the whole House in the form in which it has been reported”.
The suggestion made by my noble friend Lord Lester of Herne Hill that such a committee might confine itself to the constitutional and procedural aspects rather than going into every detail of every organisation listed would be a way forward because, even if it did that, I believe, unlike my noble friend Lord Lester of Herne Hill, that there is no way in which a great deal of debate on a lot of the organisations can be avoided when it comes to this House because this will be our last chance to debate them properly if they then go through into this Bill.
If the Bill goes to a Select Committee, it will provide a period of time before it comes back to this House—not too long, one hopes—which will give the Government a chance to explain and, as some noble Lords have suggested, to set out in the case of each of these organisations, what they believe ought to be done about it, what they intend to do if the Bill is passed and why that is necessary. That has not been done, and if it is not set out in this way by the Government, I can see the Committee stage in this House taking many weeks because people will naturally want to consider in great detail what might happen to national parks, for example, or to Natural England or the proposals for British Waterways, which are interesting and, in my view, desirable, and deserve debate. I remember many hours in this House debating the Home and Communities Agency when we set it up not very long ago. There is also the Environment Agency. These are not piddling little organisations that can just be changed, modified, merged or closed down at the whim of a government Minister; they are major parts of the governance of this country that demand proper debate and proper scrutiny. We also require the ability to make amendments and, at the very least, to ask the House of Commons to consider them.
It has been suggested that the super-affirmative procedure might be a way forward. It is a rare procedure and I think that, so far, it has been used only in the case of one Act, and the noble and learned Lord, Lord Mayhew, said we should build on it. The opportunity, certainly in the case of organisations such as the ones I have listed and many others, to consider amendments to what the Government are proposing, which will inevitably be complex and complicated in some cases, is absolutely necessary. It seems to me that some hard thinking needs to be done to look at the super-affirmative procedure as it exists in one case to see how it might be amended if it is to be used in the case of the proposals in the Bill, including the opportunity for this House to amend it. We need something between the present procedure for affirmative resolutions and the present procedure for Bills, perhaps a one-level system in which amendments can be moved and where true scrutiny and true changes in Bills can take place. It seems to me that this is not something that should be left to the Government. Again, I take the view of my noble friend Lady Scott that, in many ways, this is an issue of Parliament as opposed to government and who has the right to decide parliamentary procedure. Perhaps this matter might be sensibly considered by the Procedure Committee of the House in parallel to whatever other discussions and changes are taking place.
I am particularly concerned about several of these organisations. There is not time to detain the House any longer, except to say that I agree entirely, I think, with what the noble Lord, Lord Judd, said about national parks. From memory, the only proposal in the coalition agreement in relation to national parks is to make them more democratic and to have elections. I should say that the national park authorities— national parks are extremely democratic organisations—should be made more democratic by direct elections of the, at the moment, indirect council representatives. If that is a serious government proposal, it can be put in the localism and decentralisation Bill. It might be there for all that I know. But the rest is very worrying.
I substantially agree with the comments about forestry made by the noble Lord, Lord Clark of Windermere. It is very odd that there is a separate section in the Bill just about forestry. It is not clear why that is there. When one reads it, it is also not clear what it means in terms of outcomes. No one who has been trying to find out what it means seems to know either. As regards forestry and Henry VIII, Henry VIII was pretty good at setting up royal hunting forests. It would be sad if Henry VIII powers were used now to do away with some of the national forests.
In relation to regional development authorities, it is absolutely right that there should be a proper debate. I agree substantially with the narrow points made by the noble Lord, Lord Beecham, about RDAs in the north of England where what is happening is seriously worrying. The other area about which I am quite concerned is the abolition of the Agricultural Wages Board, a very important body in protecting the conditions and wages of agricultural workers. If that happened, simply relying on the national minimum wage would result in many agricultural workers’ wages going down. There will be plenty of time to discuss these matters as the Bill progresses, however it progresses.
If my noble friend puts his amendment to the vote, I shall certainly support him. It seems to me that whatever view you take on the Labour amendment, it is a sensible safeguard to add to it before the vote takes place. I have never in my 40 years on public authorities voted against instructions from my party, not least—but not always—when I have been giving the instructions. I have never done that. I am minded to vote for the Labour amendment because it is common sense. I do not regard it as being disloyal to the coalition Government. Sometimes Governments have to be rescued from their own lack of common sense. In being minded to vote for that amendment, I hope that some members of my party will join me in doing so.
My Lords, I am beginning to feel very sorry for the Minister. When I came back to the Chamber I thought that perhaps he would have gone for a sustaining meal or, even better, to consult his business managers and was advising them to accept my noble friend Lord Hunt’s amendment. But he has stuck it out, for which I commend him. However, he must understand that the range of opinions and concerns over different organisations in this House make it impossible to proceed with this Bill in the normal way. The sooner we agree to my noble friend Lord Hunt’s amendment, the better it will be for the coalition Government, as well as for the authority of this House and its ability to scrutinise properly.
At the beginning, the Minister said that this Bill came out of a “coherent, cross-government assessment”. I am afraid that he is wrong on all three counts. There is no assessment, no rationale and no mechanism for establishing value for money. It is not coherent. Alphabetical lists, with some bodies appearing on several lists, is not particularly coherent, let alone the reasons behind them. The process was not really cross-government. It was done department by department in silos. Then they had a head to head in a Star Chamber procedure with the Cabinet Office. The number of quangos in the departments to end up on these lists depended on the enthusiasm of the individual department or the degree to which they were battered by the Cabinet Office. For example, leaving aside the RDAs—the abolition of which I deplore—of the 36 other bodies on the abolition list, no fewer than 14 are Defra organisations and another seven are from the Ministry of Justice. Effectively, two-thirds of the bodies that this allegedly objective process abolishes come from two small departments. That cannot be right. We must have a better process for this because the normal process of the House is not correct for it.
I declare an interest as a member of the board of the Environment Agency, which appears in the list in Schedule 5 and the list in Schedule 7, and also in Clauses 14 and 15 in relation to Wales. More pertinently, I am also the chair of Consumer Focus, which is for abolition—although it is not really abolition according to the officials of our sponsor department, BIS, because abolition is a technical term and our powers will pass elsewhere. It does not feel technical to the staff and those who support it. However, it is an example. I retire from the chair at the end of this year and therefore I will have no pecuniary benefit from it lasting longer than the Government envisage. However, I am concerned that a body that was set up only four years ago and which came into being only two years ago with the merger of the National Consumer Council, which went back to Lord Young of Dartington in the 1970s, and the bodies that were set up to look after energy and post when they were privatised and liberalised, is going to disappear.
Most or some of its powers—it is not clear—will pass to Citizens Advice. As the noble Lord, Lord Beecham, said, Citizens Advice is an effective body but is different from the kind of body that goes in for consumer advocacy at the policy level and engages in depth with the regulators and the companies in, for example, the energy sector. It may be able to deliver that expertise but you will not find Citizens Advice on this list.
Nor will you find some of the bodies which went into the assessment by BIS dealt with in the same way because they are in other departments. There ought to have been a coherent approach across government to both competition and consumer affairs to produce a rationale which was clear to the House. We would probably have ended up with fewer bodies, but certainly with clearer remits for those bodies. My noble friend Lord Borrie reported on what was happening on the competition side of that equation—we probably will end up with one Monopolies Commission—but it is also clear that some of the things taken away from the OFT cannot be dealt with at a local level, either by Citizens Advice or by trading standards.
That is a microcosm of what is wrong with the Bill. Taken sector by sector and organisation by organisation, the reason why particular quangos are in particular boxes is not at all clear. If the Bill goes to a Committee of the Whole House and we go through it line by line, that means we will go through it body by body, organisation by organisation. In the Minister’s own best interests I suggest that that is not a sensible procedure for him. If the Bill goes to a Select Committee, the Select Committee can begin to make sense of it. It could group organisations; it could look at all bodies, on whatever list they are, in the health area; or at all scientific advisory bodies; or at all bodies dealing with consumer affairs, competition or the environment. It could establish a clear pattern and call witnesses, which, as the noble Lord, Lord Greaves, said, a Select Committee has the power to do. We cannot call it pre-legislative scrutiny because we have started the legislation today. However, it would have some of the same benefits. It could provide a clear, coherent principle and suggestions about how we could better deal with parliamentary scrutiny of quangos in the future. A Select Committee procedure can do that; a Committee of the Whole House cannot.
If we were starting again on a matter of such constitutional importance, as the Constitution Committee has pointed out, I would have advocated a Joint Committee of both Houses. To be faced with such a clear Henry VIII Bill is a unique experience, and the wording in the Constitution Committee’s report, as other noble Lords have said, is unprecedented. We need to take that very seriously and we need as a result to take this Bill through a different procedure. Like other noble Lords, I am not opposed to reducing the number of quangos, I am certainly not opposed to finding value for money from them and merging and reconfiguring them. I think there ought to be a process whereby we review them from time to time.
I am grateful to the noble Lord for giving way. He made a powerful point about Citizens Advice and the consumer body of which he is chair. Is it not also the case that Citizens Advice is a charity? It is quite outside the control of the state and it is not actually open to any Government to require an independent charity to do this or not to do that.
My Lords, this is an added difficulty. I think Citizens Advice was as surprised by the decision as we were, from the other end of the spectrum, as it were. It is possible that you could do this. I am not in principle opposed to the functions that Consumer Focus currently carries out being done in the third sector but I think it is difficult. We have very substantial powers, particularly powers to require information from commercial companies. There are questions as to whether it is appropriate to transfer those powers outside a government body. I have great respect for Citizens Advice and we may find a way of doing it, but we have not got there yet. There are other bits of the jigsaw we need to get in place before we do.
This is, in effect, a Henry VIII Bill. However, when Henry VIII actually proposed the dissolution of the monasteries he asked his mate, Thomas Cromwell, to produce a report on each individual monastic house. He needed to do that in order to convince the barons and the powers that be that it was a sensible policy. Those reports were, on balance, pretty prejudicial and the level of debauchery that these people found certainly would not have been found in Consumer Focus. However, it is sensible for Parliament, before it takes a decision on this, to look at each individual body in detail and the context in which it works and the interrelations with the other bodies concerned in that sector and take a decision, sector by sector, type of body by type of body—not to have a whole list presented to us on which we can have only an incoherent debate using the normal procedures of this House.
Even Henry VIII went further than this. We can at least do as well as Henry VIII did. I am not saying that a Select Committee or a super-affirmative resolution would necessarily have prevented the dissolution of the monasteries, but it would have been worth a try. I think it is incumbent on this House to try to find a way in which we can make sense of this procedure. At the moment we are not there and I plead with the noble Lord to accept the alternative procedure and take us down a more sensible road for dealing with this Bill.
My Lords, this has been a long and interesting debate and I am sure that the Minister, who has listened patiently and carefully throughout, understands why your Lordships feel so strongly on this issue. I hope that his business managers have been listening carefully as well. Maybe they ought to offer him some support.
What I think is so surprising about tonight’s debate—I am sure that the Government have recognised this—is that the principle of reducing the number of arm’s-length bodies or quangos is one with which few people would disagree. The last Government published Smarter Government in December 2009 and, in an announcement made, I think, in March before the last election, two-thirds of the bodies that this Government are now proposing to abolish were proposed for abolition by the previous Government. The principle of abolishing bodies and of streamlining or amalgamating them is not one that many of us in this House can disagree with. Successive Prime Ministers and Governments have merged and abolished quangos, but they have also brought in new ones. Despite the Government’s rhetoric on this issue, they plan to do exactly the same. It is a fact of life that some quangos will come to the natural end of their life and others will be needed.
The Minister made me feel a little overwhelmed with good advice. There is little to be gained by repeating the concerns that have been expressed time and again from all sides of the House. This is not opposition for opposition’s sake. This is a genuine desire to improve the Bill. I think that Members of your Lordships’ House are genuinely shocked by the Government’s efforts to ride roughshod over parliamentary scrutiny.
Rather than dwelling on the specific issues and matters of principle that have already been raised—we are all clear, I think, about the views of your Lordships’ House—I want to raise specific concerns and questions in relation to Clause 11 and Schedule 7. For example, among the bodies that report to the Department of Energy and Climate Change, the information published by the Government on 14 October includes three examples of bodies that will be retained. On the Committee on Climate Change, the document states:
“Retain on the grounds of the need to act independently”.
On the Nuclear Decommissioning Authority, the document states:
“Retain on the grounds of performing a technical function”.
On the Civil Nuclear Police Authority, the document states:
“Retain on grounds of impartiality”.
All those crucial organisations deal with energy policy, which we are told is at the heart of the Government’s aim to be the greenest Government ever. All those bodies have great expertise, and the Minister told us on 14 October that they would be retained. Why are all three now listed in Schedule 7 to the Bill? If Ministers cannot make the case now for the change, merger or abolition of such bodies, they should bring the legislation back to the House when they can, so that proper scrutiny can take place.
For those bodies that the Government have said need to be retained on the grounds of their impartiality or independence, to leave this sword of Damocles hanging over them, whereby the body could easily be swept away, challenges that very independence and impartiality. Are Ministers now having doubts about the ability of those organisations to fulfil their stated functions? I worry that there is a touch of Sir Humphrey or Mr Jim Hacker in Schedule 7, which is there so that Ministers can, in certain circumstances, in the fullness of time, notwithstanding any other considerations, decide that they wish to abolish the bodies listed. I would be grateful for any enlightenment that the Minister can give—I see that he is champing at the bit to respond—and I look forward to his answer. Furthermore, on the Minister’s opening comments about Channel 4, which I know were intended to be reassuring, whatever he might say, if the Bill becomes law the bodies listed in Schedule 7 will be far easier to abolish without reference to this House. Those bodies will also feel under threat the entire time.
One body mentioned in Schedule 1 is Consumer Focus, to which my noble friend Lord Whitty and the noble Lord, Lord Phillips, have referred. One of the biggest issues for consumers is the cost of energy, whether of gas or of electricity. Consumer Focus was created as the voice of the consumer to protect the consumer in energy and other areas, including postal services. Consumer Focus saves consumers 15 times the amount that it costs to run. As we have heard, Consumer Focus, which has an eminent and esteemed chair, is a statutory body with a board and a chair appointed by the Secretary of State. It is answerable to Parliament and is audited by the NAO. Consumer Focus has legal powers contained in statute. As we have heard, that is a very different kind of organisation from Citizens Advice, which is a charity.
I raised these issues a week ago in a debate—I know that the Minister was present at it—but I have not yet had answers. Tonight, let me raise just one of these points, to which I hope the Minister will be able to respond. Given that Citizens Advice is a charity, does the Minister intend that Consumer Focus’s legal powers should be transferred to a charity? I raise that point not particularly for the sake of that organisation but because the example highlights the flaws in a Bill that has been made in haste. The issues seem not to have been thought out, given that I have been unable to get an answer for more than a week.
Many questions remain unanswered about the Bill. I find it disappointing that a policy that in principle should have the support of your Lordships’ House is the subject of such debate and concern today. It is really quite an achievement on the part of the Government that they have managed to unite such opposition to their policies. I think that tonight’s debate has shown the real value and strength of your Lordships’ House. The expertise, the knowledge and the concern that have been expressed have shown genuine scrutiny in the best traditions of this House. The Minister would delight your Lordships’ House tonight if he accepted the amendments before us, given not only the issues involved but the genuine strength of feeling about the value of your Lordships’ House.
My Lords, I wish to raise problems relating to the charity commissioners. I am encouraged by the fact that my noble friend talked about their impartiality and integrity, which has been mentioned by other noble Lords. However, I worry about the charity commissioners because I feel that they have shown prejudice and partisanship, particularly with regard to independent schools. I confess to an interest, in that I spent all my professional life in independent schools. I was master in charge of the scholars at Eton and headmaster at two other independent schools. I feel that the Charity Commission has started to show a political bias, which has actually been unnoticed in the whole of its history since it was set up by statute in 1853.
The fact is that very few independent schools have large endowments, but it has been acknowledged since 1601 that education is a charity and a charitable act. In consequence, every independent school that I know subsidises poor pupils with scholarships and bursaries. They do this by taking money out of their total income. The advantage given by charitable status is used to give these scholarships and bursaries. For example, at King’s School Canterbury, where I was headmaster for 11 years, there were no endowments whatever. It took 13 per cent of its mainly fee-paying income to subsidise scholarships and bursaries. Eton, where, as I say, I taught, had of course large endowments, but it used them to assist poorer scholars.
One reason why it was always hard to integrate people from the state sector into the independent sector was the teaching of languages. In the independent sector, languages are taught from eight onwards. This is a problem that Eton faced when it tried to bring people from the state sector into the school. How Eton resolved that problem was to admit people at 10 to preparatory schools, where it paid the fees and then guaranteed them a place at Eton until they were 18. As you can imagine, that was an enormously expensive operation, which still goes on today—and it is done on the basis of its charitable status.
The present charitable administration is questioning the commitment of independent schools to their charitable status. That is quite wrong and prejudiced and ought to be questioned. It could have an effect on the ancient universities, taking away their independence. As noble Lords know, the only universities to have large endowments are Oxford and Cambridge and one or two others, but some new universities are raising endowments. It is crucial to a democracy that a state should not influence their admission procedure or anything. Charitable status is terribly important to this. Because of that, I think that this legislature should begin to question the Charity Commission in this matter.
Everyone has looked at all sorts of charities and we have talked of the integrity of the Charity Commission, but I have the audacity to question that. The Charities Act 2006 went through without too much questioning—and I plead guilty myself, as I was ill at the time. The Charity Commission has turned very general clauses into a way of questioning the whole business of charitable education, particularly in independent schools. That is wrong and should be questioned. It is wrong that political activity should enter into such an organisation and I shall certainly be raising the issue later.
My Lords, given the lateness of the hour, I shall say less than I would have done had my name appeared earlier on the speakers list. However, I start by thanking the Minister for his good humour and patience in our debate today and for the meeting that he convened for all Peers interested in this Bill last Wednesday. I am not quite sure what he expected from that meeting but it was a remarkable occasion. Virtually every noble Lord who attended, while supporting the principle that non-departmental public bodies which had outlived their usefulness should be wound up or merged with others, expressed outrage at the way that the interests of Parliament and of the ordinary citizen are being sacrificed in this Bill. The Minister heard, over and again, complaints about the almost complete lack of consultation. Bodies which have served the community well, without a breath of scandal attached to them, which were seen by those who deal with them daily as helpful and supportive, which were in many cases established by an Act of Parliament after extensive debate in this House and in another place, and which were fulfilling a role which cannot be performed as cost-effectively or efficiently by others are all being tossed on to a bonfire with little more than a sentence in a departmental press release.
Those views, expressed at last week's meeting, are put even more strongly in the report of the Constitution Committee, which many noble Lords have referred to today. Let us consider some things that the committee says. “They”—that is, the Government—
“are pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation”.
The conclusion in paragraph 14 was:
“The Public Bodies Bill … is concerned with the design, powers and functions of a vast range of public bodies, the creation of many of which was the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies”.
It really will not do, my Lords. The powers being taken by Ministers in this Bill to close down, to merge or to move organisations into partnerships with others go far beyond anything we have seen in legislation before. To claim, as the Minister did at last week’s meeting, that we need not worry because individual decisions on particular public bodies will all be subject to the scrutiny of this House, because they are to go through the affirmative order procedure, completely ignores the point that there is a long-standing convention in this House that we do not vote against statutory instruments.
I well remember, of course, that the noble Lord’s new friends on the Liberal Democrat Benches had no such reservations about that in the previous Parliament, or indeed in the two before that, but they voted against statutory instruments secure in the knowledge that their chances of winning such a vote were remote, because the Conservative Front Bench steadfastly and consistently refused to support them. Honestly, the Minister’s offer of a draft statutory instrument—a constitutional novelty, in my view—sounds little more to me than offering a condemned man the choice of hanging or execution by the electric chair. The decision had already been taken by the time that the statutory instrument had been produced and, as a result, would be a formality.
I was going to make a speech about a public body in which I have a particular interest and which I had the honour to chair until 2009, standing down when I became a Minister in the Government Whips’ Office: the Railway Heritage Committee. It is a body which has a link with Henry VIII because, as your Lordships may recall, Benjamin Disraeli predicted as long ago as 1845, in his novel Sybil, that the railways will do as much for mankind as the monasteries did. This is a debate which I want to have on another occasion and in Committee with the Minister.
However, I make the point now that that is a committee with a budget that costs the taxpayer little more than £100,000 a year. That can be reduced further, but that budget would have to be enhanced because the National Railway Museum will in future have to spend at least that amount of money on buying the artefacts and records which, at present, it gets for nothing. It is staffed entirely by volunteers—there is only one paid employee—and works with the grain of the railway industry and the heritage railway section. It was established by three separate Acts of Parliament, two passed by Conservative Governments and one, most recently, by the Labour Government in 2006. It is a body which fulfils the functions that were set out by the Minister standing at the Conservative Dispatch Box in 1996, to the letter, and has never attracted any criticism or scandal. It was abolished, or at least it is facing abolition, as the result of a single sentence in a Department for Transport press release, with no consultation whatever. The only warning that the members of the committee and the industry had that something was coming was the leak in the Daily Telegraph on 23 September. As a consequence of that, over 30 individuals, ranging from some very high-profile in international organisations—the Heritage Railway Association itself, the Keeper of the Records of Scotland, Sir William McAlpine and others—all wrote to the Minister begging her to think again before including it in the list for abolition. To no avail, though; that organisation is in Schedule 1 of the Bill. I hope that it will be possible, when we get into Committee, to do something about this deplorable state of affairs and that we can do something that recognises the importance of railway heritage in the tourist sector and in the economy more generally.
I do not want to speak any more tonight other than to say that I hope that my noble friend’s amendment will meet with approval in the House. It is important that we have more time to look at these proposals and redress, at least to some extent, the scandalous lack of consultation that has led to the Bill in its present form.
My Lords, this debate has been both extremely interesting and rather paradoxical. There is general agreement that something should be done about public bodies but no agreement at all about the way in which at present it is proposed, so we are left with two ways forward. One is that my own Front Bench comes forward with some proposals that seem to noble Lords to represent a reasonable way forward, and the other is that the matter is referred to a Select Committee. My own preference is that we should decide and not delay.
In this debate there have not been any criticisms of the inclusion of the bodies in Schedules 1 to 6 that could not be dealt with in the normal Committee and Report procedures if they were to go forward on the Bill. There are some 60 to 70 bodies in those schedules; when we get into the question of 481, or some other enormous number, we should remember that in Schedules 1 to 6 there is a much smaller number. I think there would be general agreement that a lot of those bodies have worked their time out.
I am reminded of a conversation that I had with a fellow tenant of the National Trust about her National Trust district secretary. I asked her, “How do you get on with the district secretary?”. She said, “Oh, he’s perfectly all right as long as you don’t make any sudden movements”.
Schedule 7 is a sudden movement; there is no doubt about that. It came upon us as a surprise—certainly it did to me. If it were not this late, I would be talking to your Lordships about Kew Gardens, of which I was the chairman; the Commonwealth Development Corporation, of which I was the chief executive; the Monopolies and Mergers Commission, which the noble Lord, Lord Borrie, will remember well; and several other bodies. I once got a letter from Anthony Crosland thanking me for being on a body that I was never on.
I am therefore minded, at this hour, to follow my noble friends Lord Lester and Lord Norton and suggest that what we need is a solution, not to keep going around the same track. We need to take the Bill seriously because we are not in disagreement about the policy, and the detail of that part of the Bill that is acceptable to this House needs to be debated. There is a role and a place for secondary legislation, although it may well be that the safeguards are not enough. I was, for my sins, a member of the Merits Committee for quite a long time. I remind the noble Lord, Lord Faulkner, that we turned down home information packs and the big casino in Manchester, so it is not that that has never happened. I agree that this House would need to think seriously about its attitude to secondary legislation if the Bill were to go forward on the basis of Schedules 1 to 6. However, I see no advantage in referring the matter to a Select Committee. What would it do? It would have to read this debate, take it very seriously and take the Bill as it is. It would go round in circles and when it had finished its work we would be no further forward. The only positive suggestion has been about grouping and I do not understand why that would make any real difference.
There are, however, some things that would greatly help us to take the Bill forward, having committed it to a Committee after Second Reading. First, we should drop Schedule 7. It is such a big unknown and it has upset your Lordships so badly—why do we need to keep it in the Bill? The second thing that would help would be the addition of a sunset clause, saying that those things under Schedules 1 to 6 have to be dealt with within a definite period, and that if they have not been dealt with in that time the matter should be dropped. This would hold the Government’s feet to the fire. If they mean what they have put in Schedules 1 to 6, they will carry it out. Then, as policy develops—we have been told many times that policy will develop in detail—we can have a second public bodies Bill. It did not take the Government long to prepare this one, so I do not suppose it will take them long to prepare a second.
If we were to do those things, where would the problem be? I have not heard any serious analysis of a real problem in Schedules 1 to 6. It is Schedule 7 that has caused all the trouble. All that needs to be done is to drop it.
My Lords, as noble Lord after noble Lord has demonstrated, this is not a good Bill. It exemplifies the dangers of concocting a headline and then back-filling policy into it. As so many noble Lords have pointed out today, as has the Constitution Committee, the Government as a whole—not the Minister, I hasten to add—are behaving like constitutional hooligans who are marauding through the public bodies of this country. After today’s long debate, I hope the advantages of the amendment moved by my noble friend Lord Hunt will be rather clearer to the Government than they perhaps were at the beginning of today’s proceedings. In the mean time, following other noble Lords, I should like to express my sympathy for the Minister, who appears personally blameless for this debacle but still has the thankless task of taking it through this House.
Although I recognise that the Government are not going to think again about the overall wisdom of passing the Bill into law, I offer the Minister some constructive suggestions, following the plea by the noble Viscount who has just spoken, about two bodies that are particularly important to the cultural vibrancy of this country—the Public Lending Right Office and the Film Council. Before doing so, I draw the attention of the House to my registered interests. I am the author of two novels published by Hodder Headline. It is possible, although sadly not very probable, that my novels could be turned into films. I am not signed up personally to benefit from the public lending right.
The public lending right scheme was the outcome of a long campaign by some of our most distinguished authors. Apparently unnoticed by Whitehall and Westminster, it has been a tremendous success. The Public Lending Right Office distributes more than £6 million a year to 23,000 authors. More than 200 authors receive the maximum possible payment of just over £6,500. Of those, 80 per cent said in a recent survey that the annual payment from the Public Lending Right Office is core to their income. Very few authors write bestsellers but that does not make the rest any less valuable to our cultural life. The public lending right is a critical part of our cultural infrastructure. It is administered by the Public Lending Right Office in Stockton in an operation which is widely recognised as capable and efficient. It has reduced its staff by half in the past 20 years while still maintaining high standards. It is an exemplary public organisation, yet now we learn that, as with so many other public bodies, it is to be disbanded and its functions allocated to another public body. However, I hope that the Minister will think very carefully about how this is done. The administration of intellectual property rights is complex, demanding and requires specific skills. Experience developed over time is invaluable. Disrupting a successful organisation, however small, is always perilous. Wrecking this resource would be devastating to many of the writers who do so much to sustain the cultural life of this country.
There are two things that I think the Government could do to mitigate the potential damage of this change which are still consistent with the overall policy framework. First, they could ensure that the current team, which has done such an excellent job, is kept together and in the same location, which is a low-cost area of the country, so avoiding all the disruptions of any move. Can the Minister give such an assurance and, if not, why not? Secondly, the Government could guarantee that the public lending right will not be decreased as a result of this move. Can the Minister confirm this? In particular, please can he confirm that any cost of the organisational change will not come out of the already stretched resources of the Public Lending Right Office, damaging the essential income and support that it provides to authors? If the Minister cannot respond to that point tonight, I should be grateful if he could write to me with the Government’s latest thinking on the most cost-effective and least disruptive home for this organisation.
My second area of concern is the Film Council. It, too, is a national institution that has proved its worth to the cultural life of this country and to our economy. In just 10 years it has been extraordinarily successful in developing the British film industry. It has helped to treble its turnover. It now returns more than £1 billion a year to the Exchequer. The Film Council has backed more than 900 films, shorts and features, which have entertained more than 200 million people worldwide and has helped to generate around £700 million at the box office. For every £1 of lottery money invested, £5 has been generated at the box office, allowing the Film Council to reinvest that straight back into new British films. It has supported the development of new filmmakers, funded imaginative and innovative British films and ensured that British audiences can have access to all the glories of the cinema, with a wider choice of films made available to people throughout the country. It has invested in training, promoted Britain as an international filmmaking location, raised the profile of British films abroad and overseen the introduction of the film tax relief, which is so vital to sustaining competitiveness. This success has been hard-won. Cultural entrepreneurship of this kind demands rare skills: a commercial eye for an audience; an academic intimacy with the medium; a human empathy with the creative artist and the ability to nurture and develop them; and an inspirational excitement about the cultural and industrial benefits that film can offer.
The Film Council has been fortunate in attracting such talent. Its remarkable record attracts the talented, skilled and experienced people who work there. It is essential not only to retain that talent and expertise but, if we are to avoid jeopardising years of hard work and success, to retain it in one place and under one roof; otherwise, some of the most exciting entrepreneurial talent in this industry will haemorrhage from the public sector and we risk losing that and precious creative talent overseas where they might feel more appreciated. This is a mobile industry and it is very important that we keep it in this country. The ecology of such organisations is fragile and can easily be destroyed without anyone necessarily intending such an outcome.
I suggest that there are four measures the Government could take to help avoid such damage which are still consistent with their overall policy approach. First, they could guarantee that the sums available for public funding of films will be ring-fenced, not used to plug funding holes in other organisations or to meet any transitional costs. Can the Minister give such an assurance and, if not, why not? Secondly, wherever the Film Council ends up, its current remit must be retained and not disaggregated or marginalised. In particular, its present commercial and industrial activities must not be compromised. Can the Minister give such a guarantee and, if not, why not?
Thirdly, the administration of lottery funds, as many noble Lords know, requires particular skills, and it would be wasteful of public money to seek to build up such experience in this area from scratch when the capacity already exists within the Film Council. Can the Minister guarantee that when it is decided where the Film Council is to end up, a fundamental review of the governance of that body will be conducted to ensure an effective incorporation of the Film Council into it and, in particular, to ensure that the ability to administer lottery funding effectively is entrenched in the new structure?
Finally—this request should be even easier than all the others that I have asked of the Minister—will he secure appropriate accountability for the new organisation? After all, the Government tell us that accountability is at the heart of the Bill. The board and management of the new organisation must be directly accountable to government, and through government to the public. Such accountability must include ensuring that all board appointments are governed by the DCMS and subject to the guidelines of the Office of the Commissioner for Public Appointments. This new organisation must also be subject to the Freedom of Information Act as transparency is the key to accountability. Given the Government’s commitment to accountability, I assume the Minister can reassure me on these points. I hope he will.
As I have said, I accept, regretfully, that the Government will proceed with these changes. I hope that they will change the process through which they go about those changes, as so many noble Lords have urged them to do, but how much of a disaster the changes will be will depend crucially on how they are implemented. I hope that I have been helpful to the Minister in suggesting practical measures for two important institutions and I hope that he can give me some comfort on them.
My Lords, it has been said that there are good quangos and bad quangos. It is time for some root-and-branch reform and it is the job of the powers contained in the Bill to distinguish between them. The art is to find the right criteria to enable us to reform or remove those quangos that are a hindrance, and preserve those that meet the right criteria, including cost, accountability, representativeness, impartiality and the ability to establish facts that enable good government to go forward.
Why have quangos become so unpopular? There are issues with salaries, people, language, mission creep and politicisation. One of the issues that have affected the standing of some quangos is salaries. Some are very high and it is important that the people who sit on the quangos should be representative of the population they serve and be well regarded for their expertise and impartiality.
John Kay, the economist, has said that there is a modern class of “quangocrats” who glide effortlessly from committee to committee. Some of your Lordships may include me in that category. Reluctant though I am, it has been said in the past few years that if it moves, I am called upon to regulate it. However, successful quangos are those that give real authority to people with specialist skills—judges, medical professionals and so on—where relevant to the committees. As your Lordships will know if you check your pigeonholes, there are far too many glossy brochures produced at great waste, not least of carbon emissions. When such publications emanating from quangos make less sense than they should because they shroud real meaning in a cloud of inappropriate business speak, one knows that there is something amiss. “Drill down”, “delivery”, “KPIs”, “going forward”, “robust”, “transparent” and “stakeholders” are all terms that I try to keep out of my office’s documents.
Others have commented on the constitutional issues arising from the power in the Bill to enable Ministers to set aside legislation without even a duty to consult. I support every word of the criticism made of the operation of the Bill. I am pleased that my noble and right reverend friend Lord Harries and my noble friend Lady Warnock, who have such experience and expertise in this field, have said all that I could say about the need to keep the HFEA; and others have spoken about higher education. It is not right to roll in the Office of the Independent Adjudicator—I was once the adjudicator—that takes care of complaints into the body that funds universities. Noble Lords should try to salvage whatever is good in the Bill. It is marked by indecisiveness and there is everything still to play for.
I will confine myself now to legal regulation and declare an interest as chairman of the Bar Standards Board. It is arguable that the legal profession is overregulated and is paying the price for the way in which solicitors did not handle complaints in the past. The Legal Services Act 2007 drew the barristers’ profession into the maze of regulation that it introduced, although there was little evidence to place the Bar under the same regime as solicitors. As chair of the Bar Standards Board, one of my serious concerns is the possible undermining of the professional standards, service and independence of the profession by the cult of consumerism. Consumerism is a major issue in the decisions about bodies listed in the Bill. It could be argued that the Legal Services Board Consumer Panel, whose existence has been said in newspapers to be under threat, fails to meet the criteria for retention. There is duplication of its work. The Bar Standards Board and the Solicitors Regulation Authority have consumer engagement strategies and panels. Much market research on this has been carried out, special reports have been commissioned on all sorts of areas relating to law, and there is no need for more. Not least, the cost of all this falls on the legal profession, which of course passes it on to its clients. When legal aid is being cut, I hope the Government will bear in mind the need to keep down those costs.
I welcome the proposal to study and merge the consumer organisations into one, and to end the tyranny of consumerism, as it has been called. Over the decades, the word “consumer” has become something of a Trojan horse for the import of the social policies of whatever Government are in power—a way of insisting that a certain line should be followed, sometimes without regard for the wider meaning attributed to the term “consumer” by the legal profession, which goes beyond the normal meaning to encompass duty to the court and the rule of law, and the engagement with judges, government departments, businesses and solicitors. My views accord with those of the noble and learned Lord, Lord Neuberger, Master of the Rolls, who said in a speech three days ago:
“It is of fundamental importance that, particularly when it comes to the professions, above all the legal profession, society does not adopt what might be called a form of unreflective consumer fundamentalism”.
“Consumer” is no longer equivalent to impartial or independent. Far from protecting the profession, it could be seen as a political threat. Even students are called consumers. They certainly are not: they are participators and learners. Education, like legal services, is not a good that is delivered and received passively for a price. Education is an investment, not something that is to be consumed. The provision of legal services is not equivalent to the servicing of a gas boiler.
There is a perception that the Legal Services Board Consumer Panel may fail the test of impartiality and expert evidence. After a freedom of information request, it was revealed that the panel has an unbalanced political composition. Half of its members are declared members of the Labour Party and/or members of unions—the unions being, of course, supporters of the Labour Party. Why does this matter? Because there is a conflict between the duty to represent the consumer and certain vested interests that are not always transparently declared in, for example, the Consumer Panel report on referral fees, which was adopted by the parent body, the Legal Services Board. The Labour Party itself is in receipt of referral fees. Lord Justice Jackson, in his Review of Civil Litigation Costs earlier this year, said that they should be banned in personal injury cases. So did the noble Lord, Lord Young of Graffham, in his report on the claims culture. The Law Society has set its face against the practice. Therefore, it is odd that the LSB Consumer Panel has come out in favour of the retention of referral fees, whereby solicitors and others may buy in work by, for example, paying unions to refer business to them. Given that half of the Consumer Panel is made up of members of the Labour Party, the perception may be there—it is possible to make the criticism—that it could be influenced by the unwillingness of the party to give up a potential source of income from the firm of solicitors that acts on its behalf in personal injury cases.
My Lords, I find this an extraordinary attack on the concept of consumerism or consumer representation within legal regulation. Your Lordships may recall that when the Legal Services Act passed this House, there was a barrage of resistance from lawyers of various descriptions on various Benches in this House to a consumer voice being built into it. After much persuasion, the Front Benches of all political parties accepted that there should indeed be a consumer panel, and I regret that some members of the legal profession now find it too onerous to observe the normal courtesies to their clients, as members of any other profession are required to do.
My Lords, there is no doubt that the voice of the consumer needs to be heard, but much turns on how one defines “consumer” and how that voice is heard and dealt with. It is very hard to overlook the scandal that occurred when sick miners were deprived of much of the damages that they should have had because the firm of solicitors that was tied to the union by referral fees creamed off much of the money for itself. The system of referral fees is flawed and it is very hard to understand how a consumer panel can support what looks like the interests of solicitors firms and unions rather than those of consumers. Therefore, I think that there is an element of politicisation in this. It has not worked out in the way that was intended, and it would be right to refer the Bill to a Select Committee for careful examination of the quangos listed, category by category, and for us to think afresh about who sits on them and what their job should be.
My Lords, it is a pleasure to have the opportunity to speak in this debate and especially to have the Minister in charge of this Bill performing as he has done. The noble Lord, Lord Taylor of Holbeach, is very well known for growing bulbs. As a matter of fact, he won a prize in the Chelsea Flower Show this year. That is why the Government Whips Office put him in charge of planted questions.
I dug myself into that one. I very much hope that the Minister has some latitude—possibly not to say tonight what he might feel, but he cannot be other than impressed by the majority of opinion, which is against the Bill. So far as I am concerned, it is against the Bill on specific points and not on ideological grounds, because many of my colleagues have spoken in the debate tonight and, as I believe my noble friend Lady Smith of Basildon pointed out, two-thirds of the quangos that are to be abolished were created by the Conservative Party. As with many other things, the question relating to quangos is how they are set up and dealt with.
Quotations have been read out and I think that they can be repeated. This is from the Select Committee report:
“When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are ‘whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards’. In our view, the Public Bodies Bill fails both tests”.
I do not have the confidence to comment in detail on that but, when the Government realise the power and strength of that committee, surely they will realise that they should have reflected and consulted on the matter. This issue is not a party matter. It has been turned into a party matter by the arrogance of the Government in dealing with it.
I was in this House in the mid-1980s, 25 years ago, when the GLC and ILEA were abolished because they were causing a nuisance. Ken Livingstone was the king of County Hall and he got under the skin of Margaret Thatcher. Instead of trying to ameliorate or change or improve, the answer was to say, “Off with their heads”; they were murdered. I very much fear that people who are volunteering their time and money to various bodies to support them will be cast aside. I do not think that is right.
I come from the region of Tyneside and One North East is a very successful quango. It regularly invites parliamentarians from the north-east for consultations which impress me, and we get documents which also impress me. I know that others in the Chamber will be closer to the action than I am, but I do not think it is right that bodies which are genuinely open to improvement are simply cast aside. The Government should think again and take into account the almost universal reticence of this House on both sides to agree to what is on paper.
In my view, the solution is the amendment to be moved by my noble friend Lord Hunt. During the debate it has been said that time is important and of course it is. We all know, as political animals, that there is a timescale in which the Government wish to get this Bill and beyond which they will not. The Government have to think twice: either they accept the need for change in consultation with everyone else, or they risk the embarrassment of being defeated, but I do not want to see a defeat in that sense. I intend to support the amendment to be moved by my noble friend Lord Hunt.
My Lords, for more than three or four decades I have had the pleasure of speaking either before or after the noble Lord, Lord Graham of Edmonton. Sometimes we sing from the same hymn sheet. In the spring of last year, I think that we both asked the same question about non-departmental public bodies at the same time.
I am confused, and even more confused today, as I cannot work out why we have more people speaking on this topic than we have in the defence debate on Friday. I thought that maybe it has something to do with money, so I asked myself, “What are we talking about?”. We are talking about 21 government departments, employing 528,000 civil servants, responsible for 192 non-departmental public bodies. The word “quango” was dispensed with many years ago; some of us tried to get rid of the “q” when we chaired various bodies that became autonomous non-governmental organisations, which probably would have been the secret for most of them.
Those 192 non-departmental public bodies employ about 111,000 people and they have around 18,000 appointees. The figures are difficult to determine, but they spend approximately £46 billion a year. To put that into context, the defence budget is £32 billion a year and the health budget is £105 billion a year. Here is £46 billion of public money going somewhere and the question is where, for what, how and why. I should explain that in the past I chaired one or two bodies in this field, but we had the great advantage that many of them were created to bring in unpaid people from the private sector who served for free without large amounts of bureaucracy.
Now that the change has come, no one is quite sure what these bodies are and what they do. I thought that the best thing to do would be to start asking Parliamentary Questions, which I did in 1999, with the objective of determining which Members of the House of Lords served on these bodies, because that would provide additional expertise to your Lordships’ House. What then happened was a sort of collapse of stout parties. It was normally, with noble Lords opposite in power, that, with regret, they did not know the answers. Instead of trying to find the answers, they would give the standard reply: “The information is not centrally available”, or, “To get that information would be too costly”. They could not answer at all. I asked again and again—a total of 55 Questions.
I have a roll of honour here of those to whom I asked those Questions who gave the most unsatisfactory Answers—beyond 11-plus: the noble Baroness, Lady Royall of Blaisdon, the noble Lord, Lord Malloch-Brown, the noble Baroness, Lady Vadera, the noble Lord, Lord Darzi, the noble Lord, Lord Hunt of Kings Heath—he was twice on the list, actually—the noble Baroness, Lady Morgan, the noble Lords, Lord Young of Norwood Green, Lord McKenzie of Luton, Lord Myners and Lord Patel, the noble Baroness, Lady Andrews, the noble Lord, Lord Carter, the noble Lord, Lord Hunt of Kings Heath, again, and the noble Lord, Lord Adonis. They all answered almost exactly the same: “The information is not centrally available”. I used to go to get that information and then ask the Question, and they gave the same Answer back. In later months, we had the charming noble Baroness, Lady Crawley, who, when I asked her the Question, gave the same Answer but had the decency to ask me out for tea, but I was worried that I might be corrupted, so I think that I paid for tea in the end, but she had great charm.
Then on to the scene came the noble Lord, Lord Taylor of Holbeach. Do you know, my Lords, he caught the same disease? He said, “The information is not centrally available”, or whatever. He wrote one of the naive, even less than 11-plus Answers, and I wrote him a rather nice charming letter—or a nasty charming letter—saying that he did not know what he was talking about.
Before we debate the subject, we should know what we are talking about. Your Lordships will know that the annual NDPB report that has just been issued for the period ending March 2009 is way out of date, so the figures in it make no sense whatsoever. At the moment, it seems that we are debating without any knowledge or understanding with Ministers who have no clue what their departments have been or should be doing. Perhaps we just need one simple report that updates the current figures. We had the figure of £43 billion in 2008-09 and we have gone up to £46 billion. We have had 11,000 more employees in that period. If we get it up to date—why can it not come up to right now?—on what all these bodies are, we might get somewhere.
In the anticipation that we might have a Conservative Government, naturally, I wrote to David Cameron last year and sent in the same sort of questions. He passed this on to Francis Maude and said that he would be in touch with me. Neither of them has been in touch with me. I have reason to believe that I probably have more information on these bodies than anyone else on the planet.
I could suggest that rather than having another ango—or something like that—the Government should just say to me, “Malcolm Selsdon, can you put the Act together?”. I believe that I could, because the civil servants themselves know the answers. The difficulty here is that there is a mutual protection society that wants none of them to be abolished.
The first question to which I would still like to know the answer is: how many Members of your Lordships’ House serve on these bodies? I then put the question, “And what is the remuneration?”. That was not to try to say that they were being funded illegally or overpaid in some way or another; it was to demonstrate that being on those bodies provides extra knowledge for this House. As I analyse those within the House who have served or serve on NDPBs, I think that we probably have enough expertise to put together a reasonable report. So why do we not set a date, that within 14 or 20 days from today we will have a report and then reconvene? I think that it would make a lot of sense.
My Lords, it is a delight to follow the noble Lord, Lord Selsdon, who makes an excellent tea companion. I am sorry that he came away none the wiser. At this stage in the evening, with most points covered so eloquently, I do not intend to make anything other than a short intervention.
The Minister is viewed with respect and affection in this House, and it is in that spirit that I say to him that he and his Government have definitely bitten off more than they can chew when it comes to this rather unloved and illiberal Bill. It must have looked like a cracking quick win to an incoming Government: “quangos”, so it goes, “equal unpopular, unnecessary bureaucracy”. The Labour Government had already done a good deal of the preparatory work in their Smarter Government report of December 2009, as my noble friend Lady Smith of Basildon said, and the TaxPayers’ Alliance had been lobbying for years. The time for a cull had come. It would not cost anything to execute it—it might even gather in a tidy sum for the Exchequer. What could possibly go wrong?
Let me make it clear: I am not interested in the survival of NDPBs or their nearly 19,000 board members just as a general principle. That would be both ridiculous and indeed irresponsible. Any Government would be right to look at how the system could be reformed for the better.
As noble Lords have said, there is also churn—always churn—when it comes to NDPBs, as their usefulness and their relevance waxes and wanes. In fact under the Labour Government of whom I was a member, the total number of NDPBs fell by nearly 8 per cent from a high point in 1996-97. However, given that so much of the machinery and delivery of government services to the public is tied up in the public bodies regime, it is incumbent on government to undertake a proper cost-benefit analysis of the scale and the consequences of such radical dismantling of this regime before the bulldozers are brought in. Accountability is being held up as the prime motivation for the Government’s approach to public bodies, as my noble friend Lord Clark of Windermere said. Mr Francis Maude said:
“Today, the Government have taken decisive action to restore accountability … to public life”.—[Official Report, Commons, 14/10/10; col. 505.]
If that is the case, it is for the Government to demonstrate their newfound conversion to accountability and transparency by instigating an open, public process of consultation and dialogue with those public bodies, both advisory and statutory, affected by the Bill. Even at this late stage I would call on the Government to demonstrate their commitment to that accountability and to Parliament.
I wish briefly to address two specific areas before drawing my remarks to a close. The first is the fate, sealed before this Bill was even published, of the Women's National Commission, an advisory NDPB. I had the privilege of chairing that commission between 1999 and 2002, and I pay tribute to the wonderful work of my predecessors from all sides of the House and to my successors in that post, the noble Baronesses, Lady Prosser and Lady Gould of Potternewton. As noble Lords will know, the commission's role began 40 years ago and was to co-ordinate the women’s voluntary sector across the UK and to ensure that the strong, resplendent voice of this sector was heard clearly and independently by government. It is one of the true ironies of the opening months of the coalition Government that the creators of the big society should, without consultation of any meaningful kind, dismantle the very organisation—the Women's National Commission —that is so pivotally placed to assist in the delivery of the big society. For who are the leaders, the workers, the planners, the instigators of voluntary work in this country? It is women, of course. I ask the Minister to say what is to replace the Women’s National Commission and its work and how the Government are going to approach the independence of the dialogue with the women’s voluntary sector in this country. If the Minister feels that he is not well briefed on women—and who can blame him—will he write to me on these points?
The second and last point I wish to make is as president of the Trading Standards Institute, a body supported and respected across this Chamber. Trading standards officers work as local authority officials and keep rogue traders at bay, protect the public from loan sharks and assist local businesses in their legitimate growth. The announcement by the Secretary of State for Business, Innovation and Skills, Mr Vince Cable, that trading standards is a crucial front-line service along with Citizens Advice and will be strengthened by the new model set out in his consumer landscape review is, of course, to be welcomed but, and it is a very big but, handing over highly significant consumer and competition responsibilities through the Bill at a time of austerity-led local authority funding settlements is a move that has to be extremely carefully thought through because consumers—members of the public—must not be left less safe and more vulnerable with less opportunity and far less advice and choice in their lives. There is also the fact that while local government has broad shoulders and no doubt relishes these new challenges, consumers and markets are global as much as local these days and new governance models for trading standards and CABs must reflect those market and consumer demands, whatever the localist versus centralist politics of the day.
The Bill has raised many serious constitutional questions, as we read in the report by the Select Committee on the Constitution. The dreaded Schedule 7 —a quango version of Room 101—is there in front of us placing a cloud of uncertainty over highly significant public bodies, many of them esteemed partners of trading standards, such as the OFT, the Competition Commission, the Health and Safety Executive, the Local Better Regulation Office and many others. Can the Minister explain the necessity for and the reasoning behind Schedule 7? Will he look again at it given the strength of feeling and the rational argument across this Chamber tonight? Reform local bodies by all means, but do not recklessly dismantle them. I urge noble Lords to support the amendment to be moved by my noble friend Lord Hunt of Kings Heath.
My Lords, this has been a very interesting debate and I have listened to most of it. I think that the Minister can take some encouragement from the fact that the policy intent of this measure is largely agreed. I do not think that anybody has gone full frontal in opposition to the policy intention of what the Government are trying to do. This is an important Bill and I draw encouragement from the fact that people are anxious to try to get the policy delivered. I hope that that holds, because the Bill has handling difficulties. As a former Whip, I can see that they are obvious in terms of what the Government have to try to get the House to agree to before Royal Assent.
The debate has demonstrated something else to me. It is that even when people agree with the policy intent, they all have their little lists of complaints about bodies that they want to protect. They say, “In principle, it’s really great; in practice, not in my backyard”. I have my little list as well. In 2007, I took part, as did the Minister, in the Child Maintenance and Other Payments Bill proceedings when we set up the Child Maintenance and Enforcement Commission. It took office in 2008 but is now in Schedule 1, so its days are numbered. I have great doubts about this. I moved an amendment to create it as an executive agency, as opposed to a non-departmental public body. Now the logic, the Ministers and the Government have changed and suddenly it is coming back to the Department for Work and Pensions. I am absolutely convinced that, in spite of this being the right thing to do in principle, issues such as this need to be looked at carefully. The Child Maintenance and Enforcement Commission is likely to cost more and to lose its focus. It is also likely to be much more difficult to run the collection of arrears that are so important to so many families in the United Kingdom.
The policy intent is agreed. We will all have our complaints and we will all have our little lists. Therefore, the question of the time that will be needed to deal with this Bill adequately is going to be a difficulty for the House, even absent the questions of process, to which I will turn in a second.
My great and much missed friend, Sir Clement Freud, used to make a lot of money on “Just a Minute” because he would always win the competition—without hesitation, deviation or repetition—by falling back on lists. Any time that he wanted to waste time in order to win the competition, he always resorted to lists. This Bill is full of lists. Noble Lords will speak without hesitation or deviation, but I think that repetition is out of order. I look forward to trying to help the Government, even absent the procedural issues, to get the Bill through in good order and in reasonable time, but that is a big ask.
I have listened to this high-quality debate on an issue about which people have thought a lot. I give the Official Opposition credit for this not being opposition for the sake of opposition. There have been some pretty robust speeches from Her Majesty’s Opposition, but I do not get any sense that there is a full-frontal assault to bring the Bill down, which I welcome. However, there are two problems that the Government will have to solve if they are not to put this Bill at risk, which would be a shame.
First, I do not think that the statutory instrument procedure that we have at the moment is adequate. That is clear to me. It was encouraging that colleagues came up with some solutions that I had not thought of myself. We have had some from my noble friends Lord Eccles and Lord Norton, among others, which deserve further and better consideration in terms of making sure that the role of the House is properly and adequately catered for when these statutory instruments start flowing from the Bill. Something that my noble friend has to do—he has to do it this evening—is give people proper reassurance that that issue will be addressed. I am open to argument, but this evening he has to address the depth and the extent of the criticism that was levelled in that direction.
Secondly, Clause 11 and Schedule 7 are in the same category. My noble friend Lord Norton came up with a good idea, which I had not thought of, of having a public bodies Bill in every Parliament. We now have five-year Parliaments and in each you could have a sensible public bodies Bill, which would be related to specific organisations. They would know which they were and we would be able to get proper scrutiny of them as time went on. Over the term of the Parliament, and over a period of time, there would be a systematic way of dealing with these bodies that makes sense and gives this House a proper and serious role, as well as the ability to amend the proposals in front of us.
I recognise and acknowledge that Clause 11 is an attempt at transparency. However, another way of drafting Clause 11 and Schedule 7 would be just to take the general power that was necessary and to leave the list out. Indeed, the noble Viscount, Lord Eccles, made a similar suggestion, which would get you to the same place. However, the Government took the view that the honest thing to do was to put the names that they had in mind in the Bill. That has had the unintended consequence of making matters worse and I hope that the Minister will recognise that it has been counterproductive. The Minister will have to satisfy the House on those two matters before we can attempt to judge whether or not the proposal for a Select Committee is worth pursuing.
Another question that the Bill will need to address in the fullness of time is that, because of the way in which it is drafted, new functions are capable of being created in the process of some of the changes that the Bill envisages. I hope that I am wrong about that, but there should be provisions in the Bill to ensure that it cannot happen. Such a reassurance is also important.
I say to my noble friend that the Bill is very important for a series of reasons and it is essential that we give it the best shot possible in trying to get it through the procedures of the House. He will facilitate that process if he can give reassurance on the two issues that I have mentioned: Schedule 7 and the process for dealing with statutory instruments. If he can do that, he might carry the House; if he does not, he will have difficulty in doing so this evening. That would be a great shame, because it would prejudice the future progress of the Bill.
My Lords, it has been a long, impressive and important debate. It is important because the Bill will impact on many facets of public life in the United Kingdom and because it provides an early test of the House’s ability to scrutinise legislation effectively in this Parliament.
The Institute of Government believes that public bodies are now fundamental to the running of the British state and, yes, the Opposition believe it is right that the efficiency, accountability and purpose of these bodies should come under the microscope. That is what the previous Government were doing. I succeeded the noble Lord, Lord Warner, at the Department of Health and inherited his excellent arm’s-length body review programme. As my noble friend Lady Smith said, we built on this work, culminating in our March strategy. Yes, we had a target to reduce the number of bodies over a three-year period, but we also had a robust, rational and acceptable process for so doing. The Government’s approach is anything but that. They have failed to have genuine consultation; they have failed to give more than a paucity of information about the criteria they are using; and in the regulatory impact assessment they failed to provide any factual information.
In his opening remarks, the noble Lord, Lord Taylor, who we all admire, referred to the need for efficiency. I agree. Indeed, in the Queen’s Speech we were promised huge savings from this policy. An announcement was made from Downing Street at the time of the Queen’s Speech which suggested that £1 billion would be saved. However, since then the Government have become rather coy about that. Indeed, there is more than a whiff of suspicion that the costs may be greater than the savings. I ask the Minister: what savings do the Government envisage over the next spending review period?
In fact, the argument has moved on: now we hear that it is about accountability. We are being told that it is being done in the name of accountability. Can the Minister tell me how abolishing transparent, independent bodies and bringing their functions into central government departments can possibly increase their accountability? I have in mind here particularly the health and scientific advisory committees. I should like the Minister to assure me that these advisory committees will continue to be able to give robust, independent advice. Will that advice be published? Will Parliament be told when Ministers reject such advice? Some of the decisions the Government have made are puzzling. We heard from the noble Baroness, Lady Warnock, and the noble and right reverend Lord, Lord Harries. They spoke about the Human Fertilisation and Embryology Authority, as one example. It is an internationally respected organisation. Indeed, it was the respect in which the organisation was held which persuaded this House, after an eight-hour debate, to extend its remit to approve research in relation to stem cells. Why on earth do we undermine that work? It is essential to keep, as the noble Baroness, Lady Deech, said.
There are many other organisations we could name. There is just one I would mention. I agree with the noble Lord, Lord Kirkwood, that to take the Child Maintenance and Enforcement Commission back into the Department for Work and Pensions just when the signs are that it is beginning to get to grips with the difficult task it has would be a complete and utter disaster. We all have our favourite organisations on our list and no doubt when this Bill moves into Committee we will be able to discuss them.
I want to turn to the process. The Government have essentially introduced a skeleton Bill that would grant fundamental powers to individual Secretaries of State, thereby significantly reducing parliamentary scrutiny of executive action. The Bill gives Ministers the power to abolish or fundamentally change the operation of an arm’s-length body on a mere whim through an affirmative order. Schedule 7, as we have heard, is particularly worrying as it continues to hold a body under the knife of an individual Minister—facing trial, as the noble and learned Lord, Lord Howe of Aberavon, put it. How is a body such as the Independent Police Complaints Commission intended to operate independently of political pressure from Government when the Minister has the ability significantly to cut funding, change the constitution of the commission, or even abolish it?
My noble friend Lord Borrie referred to Ofcom, which is currently looking at the bid by News International for the remaining shares in BSkyB. There were also the wise comments of the noble Lord, Lord Norton, about the credibility of the Information Commissioner and the chilling effect of being listed in Schedule 7. There are the judicial bodies mentioned by the noble and learned Lord, Lord Woolf: the Civil Justice Council, the Civil Procedure Rule Committee, the Criminal Cases Review Commission, the Criminal Procedure Rule Committee, the Judicial Appointments and Conduct Ombudsman, the Legal Services Board, the Legal Services Commission and above all, the Judicial Appointments Commission. No wonder the noble and learned Lord spoke of his grave concern about the constitutional implications of the Executive being able, under this Bill, to abolish the independent appointments commission.
I ask the Minister whether this Bill is consistent with Sections 3 and 4 of the Constitutional Reform Act 2005, which is a guarantee of continued judicial independence. Have the senior judiciary been consulted by the Government? Have the Government law officers had any input into the drafting of the Bill? Will the Minister respond to points raised by the noble Lord, Lord Lester, about the Equalities Commission and the inconsistencies in the bodies listed in Schedule 7?
It was important enough to establish such bodies in primary legislation to start with. As the Constitution Committee report says:
“The Government has not made out the case as to why the vast range and number of statutory bodies affected by this Bill should be abolished, merged or modified by force only of ministerial order, rather than by ordinary legislative amendment and debate in Parliament”.
The noble Lord, Lord Norton, was very clear on that point. Indeed, I have rarely seen a Select Committee of your Lordships’ House so trenchant in its criticism of a Bill. I say to the Minister that the House tonight deserves a response to that committee’s report. It is not good enough to say that we should wait for Committee stage, as the Minister implied in his opening remarks.
On the Government’s response generally, the Minister offered some concession over consultation. That is of course welcome, but he could have gone further. He could have acknowledged that the Bill would have been much the better for pre-legislative scrutiny. He could have promised a proper impact assessment before we proceed to Committee. He could have agreed to publish the full costs and benefits of the proposed changes before we move to Committee. He could have promised that the Government would accept amendments from these Benches to ensure that the super-affirmative procedure will be used in the Bill.
The noble Lord, Lord Taylor, made great play of the fact that statutory instruments under the Bill will be affirmative, but he could have confirmed that the Government accept, without any hesitation, that the interpretation of the Merits of Statutory Instruments Committee on the best definition of the conventions applicable to secondary legislation is that contained in the report of the Joint Committee on Conventions. I remind the House that the report stated that,
“it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI … when the parent Act was a ‘skeleton Bill’, and the provisions of the SI are of the sort more normally found in primary legislation”.
Will the noble Lord confirm that the Government accept the interpretation of the Merits Committee published in a report only last month?
The noble Lord, Lord Taylor, could have said that the Government would withdraw Schedule 7 to the Bill and accept my amendment to his Motion. The practice of committing a Bill to a Select Committee has been very rarely used in respect of government Bills in recent times. The most recent occasion was for the Constitutional Reform Bill in 2004. The noble Lord said that the form of the Constitutional Reform Bill was of a different order and of great constitutional significance—and so it was—but I believe that, in its way, this Bill is of constitutional importance, too, and would merit being dealt with in the same way. I was immeasurably strengthened in that view by the interventions of the noble and learned Lord, Lord Woolf, and my noble and learned friend Baroness Scotland. They did not doubt the constitutional significance of the Public Bodies Bill.
The noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady Scott of Needham Market, said that all Governments are affected by Henry VIII-type clauses. That is of course right, and this House has made its displeasure known whenever Ministers have fallen into such temptation. What is so worrying about this Bill is, in the words of the noble and learned Lord, Lord Mayhew, its industrial scale. The use of Henry VIII-type provisions is so blatant that, in the words of the Constitution Committee:
“The Public Bodies Bill [HL] strikes at the very heart of our constitutional system … In particular, it hits directly at the role of the House of Lords as a revising chamber.”
The noble Lord, Lord Taylor, suggested that my amendment was aimed at obstructing the Bill, but that is not so. The Opposition support efforts to improve the efficiency of these public bodies. I am quite content with the objectives in Clause 8(1). I see my amendment as being a reasonable and constructive course of action for the House to take in sending the Bill for examination within a Select Committee. Like the Constitutional Reform Act 2005, I have no doubt that the Bill would be immeasurably improved as a result. I agree with the noble Lord, Lord Maclennan, that it does not need to look into the merits of each body covered in this Bill. The noble Lord, Lord Lester, asked for a reassurance that the Select Committee proceedings would be confined to the constitutional aspects of the Bill, including process and safeguards. I agree with the noble Lord, Lord Lester, that it should be so confined, and I do not see why it cannot be done within three months.
We have no interest in delaying the Bill’s progress, but I suggest to the Government that a little more time spent on the Bill now would save a huge amount of time likely to be lost if the Bill went through in its present form. The Minister should listen to his noble friend Lord Greaves. I can testify to the ability of the noble Lord, Lord Greaves, to keep the debate going day after day after day. But to reinforce this point about time and to reassure the House, I am very happy to accept what the noble Lord, Lord Maclennan, says about timing. I certainly believe that the committee should be able to achieve its completion by 28 February 2011, as he suggested.
At the general election, the Conservative Party manifesto promised to restore the balance between government and Parliament. The Liberal Democrat manifesto promised to strengthen Parliament to increase accountability. If I as a member of the previous Government had brought forward this Bill, it would rightfully have been torn to shreds by this House. If as a Minister I had had to listen to the devastating speech of the noble and learned Lord, Lord Woolf, I would have known that the game was up.
As my noble friend Lady Andrews said, this is a real test of this House’s ability to scrutinise legislation effectively. I hope that we will meet that test by agreeing to the establishment of a Select Committee.
My Lords, this has been a good debate on a very serious subject in which people have expressed themselves seriously and with passion. If I have been on the receiving end of much of that, I should tell noble Lords that I am actually encouraged by this debate. As my noble friend Lord Kirkwood pointed out, there has been some agreement about the objectives of the Bill, even if there has been some criticism of the mechanism that the Government have chosen to implement it.
I thank all noble Lords who have participated. It has been a good-natured debate despite the seriousness of the subject. Contributions have been thoughtful and constructive and indicate a commitment to the principles of scrutiny and due process of which this House should be proud. As a Member of your Lordships’ House, I share these principles, and I have reflected carefully on the points that have been expressed today. I apologise in advance that I shall be unable to address them all specifically in the limited time available. I have in particular taken note of the general concern regarding the order-making mechanisms in the Bill, particularly as they relate to the bodies listed in Schedule 7. In the light of the seriousness of these concerns and the considered and impassioned case made by many noble Lords this evening, I have chosen to respond by making an equally strong commitment.
It is my firm belief, particularly given the quality and breadth of the contributions to today’s debate, that the appropriate venue for detailed scrutiny of the Bill is in a Committee of the whole House, supported by the detailed and expert scrutiny of the Joint Committee on Human Rights and the Delegated Powers Committee. The Constitution Committee has already made such a contribution, detailed in its report and expressed eloquently today by my noble and learned friend Lord Howe and my noble friends Lord Crickhowell and Lord Norton of Louth. That report has been the focus of much of today’s debate and, as such, I take it extremely seriously.
I take equally seriously the concerns raised by a number of noble Lords about ensuring the independence of bodies charged with delivering important public functions, and those regarding the scope and nature of Schedule 7. Accordingly, I wish to make clear my intention to bring forward amendments in Committee to address these issues constructively. I accept the Constitution Committee’s concerns and the need to meet them by devising a parliamentary procedure that will ensure proper public consultation and enhanced parliamentary scrutiny before any proposals to act under the legislation are approved.
We will also seek to amend the Bill to include safeguards to give independence to public bodies against unnecessary ministerial interference when performing technical functions, and when their activities require political impartiality and the need to act independently to establish facts. Finally, we will consider whether some of the bodies need to be removed entirely from Schedule 7. As part of these considerations, we will seek to address the concerns of the noble and learned Lord, Lord Woolf, which were echoed by many other noble Lords, including the noble and learned Baroness, Lady Scotland, about bodies that deal with matters relating to the judiciary or otherwise to the administration of justice.
There have been questions raised about the scope of Schedule 7 and the reasons for the inclusion of bodies in that schedule. There has been the suggestion that there is no rationale for the list. This is absolutely not the case; the bodies listed have all been included in the recent review and will be subject to future reviews. The Government do not believe that public bodies should remain, as a matter of course, in perpetuity or that their functions, remit or status should never again be examined. There will therefore be a triennial review process.
Schedule 7 omits some bodies included in the review and in future reviews because they do not have a statutory function. A small number of bodies have also been excluded because they are being taken forward in alternative legislative vehicles. For example, some proposed changes are out of the scope of the powers in the Bill, such as to the Audit Commission. In other cases, proposed reforms fit better with the wider legislative and policy objectives of a particular departmental Bill.
The noble Baroness, Lady Andrews, asked why two orders are required to remove bodies from Schedule 7 and then to effect changes using the powers in Clauses 1 to 6. We should remember that moving bodies from Schedule 7 might also be to merge them or to change or fulfil their functions under those clauses. I believe that it is important for the House to have the opportunity to approve the principle of the use of the powers in relation to a particular body. As she points out, there would need to be a separate order to approve the details of that change. If beneficial for scrutiny, these orders could be published in draft simultaneously.
The Government are committed to substantial reforms to public bodies aimed at enhancing their accountability, efficiency and effectiveness. The Government are further committed to continuing to review the public bodies landscape in future, ensuring that it remains fit for purpose. I suspect that most noble Lords agree with that strategy.
I am gratified to note that many noble Lords across the House have expressed their support for this policy in their contributions today. It is a programme that the voters and taxpayers of the United Kingdom expect us to deliver without delay. It is that objective that underpins the Public Bodies Bill.
I agree with the remarks of my noble friend Lord Blackwell, who applauded the principle of the Bill and expressed his hope that it had been brought forward with the intent to deregulate and simplify. I confirm to him that the Government are committed to a simpler, more transparent public bodies landscape, and that the Public Bodies Bill cannot be used to create new public bodies except as the result of a merger of existing bodies. I am happy to discuss with my noble friend how best to ensure that the Bill supports the principles of the regulations. I also note my noble friend Lord Kirkwood’s concerns about new functions.
I believe that there is broad agreement in this House about the policy behind the Bill, and that leads us to two sets of questions. The first is about mechanisms. With regard to this question, I hope that I have reassured the House of our intentions by making a commitment to bring forward amendments in Committee. I reiterate again my commitment to working with the House to address its remaining concerns.
The second set of questions is about the implications for specific bodies and functions. The noble Baronesses, Lady Stern and Lady Finlay, both express concern about the proposal to abolish the office of the chief coroner and the implications of that for bereaved families. The decision regarding the coroner was not taken lightly, and the abolition of the office does not indicate that we are not committed to an improved coroner system. We remain committed to improving the coroners’ service for bereaved families and those who work within the system. Our proposals, such as introducing a charter for the bereaved, will do exactly that.
The noble Baroness, Lady Royall of Blaisdon, and the noble Lord, Lord Clark of Windermere, expressed their concern regarding the provisions relating to forestry. I hope that they will permit me to respond to some of their detailed questions in writing. However, I offer my reassurances that there are numerous safeguards already in place to protect England’s trees, forests and woodlands irrespective of who manages them. The noble Baroness can rest assured that, as someone who was a fan of Dennis Potter, I share an awareness of the uniqueness of the Forest of Dean. I also hope that it helps noble Lords that I have several volumes by Oliver Rackham, our leading historian of woodlands and forests. The Government will bring forward proposals in the new year to invite interests from a wide range of potential private and civil society partners on a number of new ownership options and the means to secure public benefits.
I appreciate that many other noble Lords have expressed concerns about bodies that I have not had time to mention. I offer my apologies and give an assurance that I will seek to remedy this, either in writing or during future stages of the Bill. Once again, I thank noble Lords for their contributions today and for their constructive comments both inside and outside the Chamber. I reiterate my commitment to continue to work with colleagues to improve the Bill and to address the specific concerns about the processes that it sets out.
However, I do not believe that the Bill should be committed to a Select Committee. As I stated in opening this debate, it is right and appropriate that our deliberations should continue in a Committee of the whole House, which has today demonstrated its capacity to give this Bill full and considered scrutiny. The time between now and then can be used productively to address remaining concerns relating to the structure of the Bill. It would enable me to bring at an early date to the whole House sitting in Committee those amendments that we believe this debate has asked of us. It is for this reason that I hope noble Lords are persuaded not to commit the Bill to a Select Committee.
It is absolutely right that the House should scrutinise this Bill, and do so with its customary rigour. It is not right that the House should seek unnecessarily to delay a reform programme that is a coalition commitment, that reflects manifesto commitments and that the public rightly expect to be delivered without delay. I commend the Bill.
Bill read a second time.
My Lords, we have had an extensive debate. I know that the House will now want to come to a speedy conclusion. The noble Lord, Lord Taylor, has said that he has listened carefully to the debate. He has certainly promised to bring amendments to enhance public consultation and public scrutiny. However, these undertakings are unspecific, insufficient and imprecise. The Bill will be better informed and immeasurably improved by going through a Select Committee process. Far from delaying the Bill, I am convinced that this will give the noble Lord a better Bill and one that will be produced through this House more quickly.
The Minister has not met all the constitutional concerns that have been raised tonight. He has said nothing about costs and savings. He has not agreed to put safeguards in a new clause at the beginning of the Bill. He has not said that the Government will agree to the super-affirmative procedure. He has not given a guarantee to take the judicial bodies mentioned by the noble and learned Lord, Lord Woolf, out of Schedule 7. The Minister has not responded to the concerns raised in this House by many Members. I beg to move.
Amendment to Lord Hunt of Kings Heath’s Amendment
My Lords, in the light of the assurance that has been given by the noble Lord, Lord Hunt of Kings Heath, that the proposed Select Committee, if set up by this House, would complete its work not later than the end of February, and of the assurances by my noble friend to attempt to meet the concerns that have been expressed in this Second Reading debate, I shall not move my amendment.
Amendment to Lord Hunt of Kings Heath’s amendment not moved.
Motion agreed and Bill committed to a Committee of the Whole House.
House adjourned at 11.44 pm.