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Public Bodies Bill [HL]

Volume 722: debated on Tuesday 23 November 2010

Committee (1st Day) (Continued)

Amendment 3 not moved.

Amendment 3A

Moved by

3A: Page 1, line 3, at beginning insert “Subject to section (Consultation)”

My Lords, for the convenience of the House, I should explain that today we split my original Amendment 3 into two. The reason for doing so is so that we can discuss the question of consultation separately from that of parliamentary scrutiny. In moving Amendment 3A I will also speak to Amendment 123.

I think we agree that consultation has to be a very important part of the process of dealing with the order-making powers that the Bill provides to Ministers. The noble Lord, Lord Taylor, has graciously acknowledged the concerns over the enormous discretion that the Bill seeks to give Ministers. The debate on consultation goes to one of the most important parts of the Bill. The amendments that the Minister proposes to move—and to which I am sure he will speak in this group—are very welcome as far as they go. They provide for statutory consultation and stipulate that certain interested parties must be consulted before a Minister can proceed with an order. The Minister must also consult any such persons considered appropriate, allowing for a wide and full public consultation or a more targeted approach, depending on the order.

As I have said, that is welcome as far as it goes in relation to Clauses 1 to 6. The problem is that it still leaves an awful lot of ministerial discretion in deciding whether there should be a full public consultation, and by what criteria a Minister should so decide. The Minister was very sympathetic to the last group of amendments in relation to the sunset clause. I hope he will also give my amendment sympathetic consideration. We are talking about an extraordinary range of powers being given to Ministers. We are also, in the list of organisations in each schedule to the Bill, talking about responsibilities of bodies that are extensive and, in many cases, impact widely on the general public. For that reason, there should be a clear principle in the Bill that, whenever an order is proposed by a Minister, the public should always be consulted. I hope the noble Lord will be sympathetic to that point of view.

I also ask the Minister to clarify one point in regard to his own amendments. In the helpful note of explanation that we received from his department in relation to his amendments, the point is made that there will be at least 12 weeks for consultation. I would be grateful if the Minister could confirm that and give a little more detail. In particular, will the 12 weeks encompass just the time for interested parties to comment, or could they also embrace the time taken for a Minister to respond to submissions or consultations? I would very much welcome clarification on that.

My Lords, I support the amendment in the name of my noble friend. I very much welcome the Minister’s amendment but it is extraordinary that it was not included in the Bill initially. That reflects what has gone on in the review of public bodies. I declare an interest as chair of English Heritage and vice-president of the National Parks Association. In the time available there was not much opportunity for a public body to have a considered, sensible dialogue with Ministers. Many of the bodies that passed the three tests of independence, expertise and accountability are in Schedule 7 and do not know why that is or what will happen to them. It should be an absolute precondition that they, and the bodies identified in other parts of the Bill, are consulted about their future and the extent of the options being discussed.

In the course of the afternoon, noble Lords have raised their concerns in many different ways but the business of consultation goes far wider than that. It is a matter of basic courtesy that these bodies should be consulted, and that is what the Minister’s amendment provides for. However, as has been said, it is extremely important that people who are affected by the Bill and are nervous about the future of public bodies should have the opportunity to be consulted. I think, for example, of the National Parks Association and the national parks themselves which command such enormous popular support and are so important to many different communities, both regionally and nationally. They are in Schedule 7. If it was decided to move them into another schedule, the number of people affected by that decision would be legion. It would be a gross discourtesy not to give people an opportunity to be consulted. Many of the bodies in Schedule 7 are membership bodies and would want to take the views of their members into account. Indeed, their members would have very strong views. Therefore, there is a real issue here about the nature of the consultation, its extent and the certainties that we can count on in terms of public responsibility and consultation.

I very much echo what the noble Lord, Lord Hunt of Kings Heath, has just said about the need to be absolutely clear. The Cabinet Office guidance on consultation is very clear—12 weeks is the standard recommended time. Consultation in itself does not allow a huge amount of scope to discuss such serious matters, especially if it is held over a summer, as it often is. We need to be given guarantees that full and proper consultation will be carried out that is not compromised by a Minister saying that he will respond in due course. I am anxious that we should be given those assurances this evening.

My Lords, I should like to begin by expressing my appreciation to the Minister for having brought forward the new clause on consultation, which flowed directly from the debate that we had at Second Reading, in which concern was expressed about it. The Minister told my noble friend Lord Lester earlier that there would be further discussion on this matter at later stages of the Bill. Amendment 114 goes a long way to meeting the general requirement of public consultation. It would be helpful, and would attract the consent of noble Lords on all sides of the House, if we were given somewhat more specific indications about the time involved, although there are further provisions on that in Amendment 118. However, there remains an issue about the nature of public consultation. That matter was addressed by my noble friend Lord Lester in his earlier remarks and I was glad to hear the Minister respond positively to it. I note that an amendment in the name of my noble friend Lord Greaves, which has not yet been moved, contains specific proposals on how the Minister might indicate that he is seeking consultation and on the use of a government website. All these matters merit serious consideration. We should not regard provisions that are put forward as tokenism, and I do not for one minute imagine that that is the Government’s view.

My Lords, I should like to press the Minister a little on the Government’s new clause in Amendment 114, with specific reference to consultation on matters which might be devolved or partly devolved, particularly forestry. I take this opportunity to thank the Minister for the way in which he responded to my request regarding how the Forestry Commission might communicate with Members of this House on factual matters. Through his offices and those of the noble Lord, Lord Henley, we have found a means of communication through the all-party group on forestry. Unlike most of the other bodies that we are discussing, the Forestry Commission is accountable to the Crown as opposed to the legislature, which creates a problem. The Bill does not refer to the Forestry Commission but, rightly, to the forestry commissioners. As I explained at Second Reading, the 1999 Act devolved certain aspects of forestry which are planned to revert to central control, and this creates a very complicated body.

The Minister made the point that if matters pertained to Scotland or Wales, there would be a duty to consult Scottish Ministers or Welsh Assembly Ministers. Should we consult Scottish Ministers or Welsh Assembly Ministers as opposed to the Scottish Parliament or the Welsh Assembly given that we might have to find a statutory mechanism pertaining to the Scottish Parliament or the Welsh Assembly to enable us to communicate with those bodies? I should like the Minister to give me an assurance—I am sure that he will give it to me if he can—that a mechanism will be found to enable us to communicate with the Scottish Parliament or the Welsh Assembly.

My Lords, I have a number of amendments in this group—Amendments 115 to 117, 128, 129 and 170 to 172. They are all amendments to the three government amendments that have been put forward. Noble Lords know what those amendments say and can judge my amendments accordingly. The amendments that I have put down are very much along the lines of the amendments that I usually put down on consultation. I listened—as, no doubt, did many other noble Lords—with great admiration to all the detailed legal analysis on Amendment 1. I congratulate the Minister on understanding it all. We are dealing with something much more basic now that I do understand and in which I have been involved all my life—that is, public consultation.

As my noble friend Lord Maclennan said, these amendments put more detail on to the principles set out in amendments tabled by my noble friend Lord Lester of Herne Hill and the noble Lord, Lord Hunt of Kings Heath. The former states that,

“the Minister must conduct a public consultation”,

and the latter states that,

“the Minister must consult the public”.

That fundamental principle has to appear in the Bill. It is absolutely right that consultation should be with all the appropriate organisations, interests and individuals that the Government can identify. In addition to that, consultation has to be open and transparent. That means that anyone who wants to be consulted should have the right to be consulted. In other words, the definition of who is interested ought to be made by the people concerned.

The Government can never know who wishes to contribute in total and which contributions might be useful to them in improving what they propose, or in coming to the view that it is right or wrong. That principle is accepted in many areas, such as consultation over planning applications to a local authority. Local authorities all have a list of the people whom they automatically and systematically consult, such as neighbours—depending on what the proposed development is, people living within a certain radius of the proposed development or perhaps just people living adjacent to it. A whole series of organisations—some national, some local—also automatically get consulted. There is no problem about that; it is the kind of consultation the Government are talking about in the Bill. In addition, there is an open consultation. Traditionally, a site notice might be posted so that people who walk past can have a look and see that the application has been made. There may be newspaper advertisements in certain cases where the application is thought to be particularly important, or is specialist—applications for listed buildings, for example.

Probably universally now, an open invitation is put on the council’s website for people to put their views forward, and an increasing proportion of people do so that way. That is an open consultation—it is open to anybody to take part and the council has to consider those representations. It does not mean that the whole basis of local government collapses; it is just a normal part of the process. There is no reason whatever why the Government cannot accept that principle on the kind of proposals in the Bill, which are often far reaching. In many cases, the Government act in this way; they may have a specific obligation to consult certain people and bodies, but in addition they put things on websites and take account of what people say. However, that is fairly ad hoc at the moment; whether it is done depends on the people involved. The principle ought to be in legislation. The internet makes the whole process far easier. The idea of advertising in national newspapers, the London Gazette or whatever—nobody ever sees it—has been superseded completely. All the information can now be put on the internet via the Government’s websites and people can respond in that way, or write in if they wish to respond in that way. There is no reason why that should not happen.

My amendment is the standard one that I table whenever this kind of thing comes up in your Lordships’ House. I tabled it on the Academies Bill; we got a weak concession from the Government on consultation by school governing bodies proposing to become academies, which has turned out to be pretty feeble in practice. Consultation is not an option. It is essential and should be entrenched in the legislation. I can remember banging away on the same issue on the Marine and Coastal Access Bill and various local government Bills.

The noble Lord has brought up a Bill of blessed memory to many noble Lords, including of course the noble Lord, Lord Taylor. Will the noble Lord, Lord Greaves, contrast the submissions that we received on the marine and coastal access path from organisations, including bodies listed in this Bill, with the position now? We have been overwhelmed with silence from those bodies. He may well share my concern about that. Officials in departments have clearly given the message to those bodies that they are not to say anything. The more I think about it, the more concerned I am about it.

My Lords, I heard the comments made to that effect by the noble Lord, Lord Hunt, on a previous amendment. He is right; it is the only explanation I can find for the devastating silence. In some cases I have gone out of my way to try to get information out of various bodies that may be affected by the Bill; no doubt other noble Lords have too. It has been like getting blood out of cheese on one hand, and on the other there have been subterfuge-type conversations: “I’ll have the conversation with you, but don’t tell anybody, will you?”. That is not satisfactory. It would help if the Minister could give us all an assurance that any such instructions that have been sent down the line will be countermanded immediately, so that those of us who are interested in these organisations can get the information that we legitimately need for when we get on to the detailed amendments and discussions that we shall have on the schedules, quite apart from the debate on this amendment.

I doubt that the noble Lord will find any written instruction, but you do not need written instructions—you just need indications from officials that organisations that make trouble will find themselves in some difficulty. It is absolutely clear that that is the message that they have. I am pursuing this because it shows the chilling impact of the Bill. Any organisation listed knows that there will be repercussions if it makes trouble, and the Bill allows that. I hope that the noble Lord, Lord Taylor, will give a firm indication from the Front Bench that the organisations listed are free and open to provide their views. I will make it my business to contact some of the organisations, and if I find that they are not prepared to give views to the Official Opposition I will take that up with the Government, because I regard that almost as contempt for Parliament.

My Lords, can I come in on the same issue? I have already been in contact with three organisations about which I have tabled amendments for later in Committee, to ask their views on being in Schedule 1, 2, 3 or whatever. Universally they have said to me, as they have to my noble friend, “We can give you our views, but for goodness’ sake don’t quote us, because that’s more than our life’s worth”. This is important, and I shall continue to ask in regard to my amendments. I share my noble friend’s view that, if we do not see a change before they are debated, it will be very serious.

My Lords, Her Majesty’s loyal and Official Opposition may be having trouble, but all Members of this House need to be able to get information. I go back to the point made by the noble Lord, Lord Clark of Windermere. This is partly about whether people can freely give their opinions, but far more fundamental is having access to information. We have to have it, and it would be quite wrong if we were denied it in relation to any of the organisations that are, or might be, included.

The noble Lord, Lord Hunt, has taken me up a branch line on my amendments. The noble Lord, Lord Berkeley, has just been talking, and I therefore automatically start thinking about railways.

The principles behind my amendments are as follows: if a proposal is put forward on which consultation should take place, whether it is major or not, the Government should say, first, what is being proposed; secondly, they should tell people how to make representations, should they wish to do so; and thirdly, at some stage, the Government should publish their views on the consultation and summarise the responses received on it. Those are the fundamental principles behind open and transparent consultation. That supplements the basic point made in the amendments of my noble friend and the noble Lord, Lord Hunt, that consultation should be completely open to anyone who wants to take part. Those are the fundamental principles, and it would be good if the Minister could confirmed that that is the view of the Government and perhaps give a hint at a further stage that the principle—if not all the detail that I have proposed—of consultation with the public as a whole and individuals can be written into the Bill.

My Lords, I wish to make a brief comment on bodies not being brave enough to comment on what is in front of them. We have had some discussion of the Administrative Justice and Tribunals Council. If your Lordships look at its website, you will see a printed comment by the chairman stating that he is very disappointed in this development. He goes on to say why he is disappointed and how he is going to behave in the interim—although he accepts that policy is a matter for the Government. While I take the points being made in various parts of the Committee, I hope we do not overstate this situation.

I am wearing my Royal Botanic Gardens, Kew, tie, and I was happy to hear a comment from that organisation earlier this afternoon. There is a long way to go with the Bill. It is dangerous to say that the board of the Royal Botanic Gardens, Kew, will not answer a question. I suspect that it does not believe that it will be in Schedule 7 by the end of these debates.

My Lords, I am tempted, once again, by a reference to the Administrative Justice and Tribunals Council. I referred earlier to my historic interest in it. I take my noble friend’s point. I had been wondering whether to make the same point, but the Committee ought to be aware that the Administrative Justice and Tribunals Council is not in the same position as the organisations listed in Schedule 7—it is for the chop. Therefore, any uncertainty or question of avoiding the chop later does not arise. I personally think that serious issues still need to be considered in respect of the AJTC, as I indicated earlier, which will be the subject of a later amendment. However, to put it bluntly, as things stand, the AJTC has nothing to lose.

My Lords, one of the concerns that is so blindingly obvious—and this refers as much to Kew as to any other body on Schedule 7—is that the bodies listed on the schedule have no idea why they are on it. One of the reasons for their diffidence is simply that there is nothing for them to say, other than to open an opportunity for the Government to explore further action which may not be necessary, appropriate or positive, or in any way in the interests of the organisation. That is the real problem and why people are so inhibited about coming forward in relation to the Bill.

My Lords, I speak to the Government’s amendments as well as the other amendments in this group. The amendments are all concerned with the mechanisms by which the Bill enables the Government to make changes to public bodies through secondary legislation.

The group includes Amendment 121, tabled by my noble friend Lord Lester and the noble Lord, Lord Pannick, and Amendments 3A and 123, tabled by the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Royall. In addition, it includes a number of government amendments and consequential amendments tabled by the noble Lord, Lord Greaves, to which he spoke with his usual eloquence. These amendments reflect the commitments that I made at the end of the Second Reading debate on 9 November with regard to consultation and parliamentary scrutiny.

In this debate, I will discuss in particular government Amendment 114, which relates to orders made under the powers in Clauses 1 to 6. Amendment 127 replicates this amendment in relation to orders made under Clause 11, and Amendment 169 has the same effect in relation to an order made under Clauses 17 or 18, to which the noble Lord, Lord Clark of Windermere, referred. We also intend to create similar provisions in relation to the powers conferred on Welsh Ministers by Clause 13, and we are in discussions with the Welsh Assembly Government about how best to achieve this.

I am extremely encouraged by the level of consensus that has emerged across the Committee. We are clearly more united than divided on what needs to be done to improve the Bill, and I hope to continue in that spirit through this debate. During Second Reading, the House clearly expressed its feeling that the types of change that the Bill would enable should be subject to a period of consultation with interested parties outside Parliament. In many cases, departments have already undertaken, or are undertaking, such consultation—including the Defra consultation on governance arrangements in English national park authorities and the Broads Authority. That consultation runs for 12 weeks, as of 9 November. Sometimes there is independent review, such as the Dunford review of the Children’s Commissioner. There are many such plans. However, in addition, we are happy to place in the Bill a requirement to consult.

Perhaps I may comment on the points made by the noble Lord, Lord Clark of Windermere. The forestry clauses relate only to England, so the issue of the devolved Administrations, Ministers or Parliaments does not arise. However, I guess that the reason why in many cases references are to Ministers rather than to Parliaments is that Ministers are in turn accountable to their Parliaments. This would be the normal way in which Ministers talk to Ministers, rather than Parliaments to Parliaments. I hope the noble Lord is reassured as regards the Forestry Commission.

On that specific point, the commissioners are appointed at a GB level. The Minister is quite right on that. However, once appointed, they then take over devolved responsibilities as chairs of the national committees of Wales, Scotland and England. Although the Bill applies only to England, I am a bit perplexed, because none of the commissioners is appointed specifically to look after England. There is a lot of work to be done in teasing out how we deal with this aspect.

I hope that when we come to those clauses of the Bill, we will be able to discuss this and make it clear. I am sure that that is what the Committee would wish. We will have an opportunity to go through this.

The question was raised about the timing of the consultation period. I reassure noble Lords that the 12-week period is a 12-week period of consultation. Amendment 118 covers the process after consultation and states:

“The Minister may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began”.

That means that he cannot present a summary of representations received in the consultation before the 12-week period is over. I hope that noble Lords are reassured on that point.

We want to make the consultation effective. I hope that I can reassure my noble friend Lord Greaves on that. The Government have nothing to fear from being open on the matter. The noble Lord, Lord Hunt, went rather over the top with his allegation of a climate of fear across government. I would be prepared to take up any evidence on this that he presented to me. The probable reason that a number of bodies listed in Schedule 7 are not commenting on the Bill is that it is not necessarily the case that anything is going to happen to them. Within departments, any decisions will involve discussions before the public consultation period takes place. The precipitousness that the Opposition ascribe to the decision-making process does not give credit to the way in which the Government perform their public business. I am sorry that the noble Lord has not had critical comments from people in public bodies.

If it is the case that nothing will happen to many or some of the bodies on the list, why are they on the list? Why is there a list at all?

That comes back to the process. Schedule 7 lists those bodies. The review initiated by my right honourable friend Francis Maude, which was the subject of a Statement in the House that I repeated, placed these public bodies on the list because they were considered to be subject to a review process. They have been subject to a review process and will continue to be subject to reviews at three-year intervals. The justification for them being on the list is that they are not exempted from being on it by the special criteria laid before the House.

I am grateful to the noble Lord giving way. It is very important that we have clarification. The bodies that went through the public review process were cleared as being independent, expert and accountable, yet they are in Schedule 7. The Minister has referred to a triennial review. This can take place automatically; in fact, I understand that those bodies have been informed that there will be a triennial review. The bodies in the schedule are not necessarily subject to triennial review; they could be reviewed for any purpose whatever. There is a distinction here and we need clarification.

Of course, it is intended that departments will review the bodies that are listed in Schedule 7; that is perfectly correct. However, they will do so through a process of discussion with those bodies. The noble Baroness is involved in a body that appears in Schedule 7. I trust that she is sufficiently confident in her own position and that of her organisation not to feel in any way intimidated. Certainly she has been particularly eloquent—and justifiably so—in many of the things that she has said in debate in the House. What I was saying to the noble Lord, Lord Hunt, was that he had overreacted—which was uncharacteristic because he is a pretty phlegmatic fellow—by suggesting that there was widespread intimidation across Whitehall on account of the Bill. I do not believe that that is the case. I would go so far as to say that most people involved in public bodies want to co-operate with the Government in building a more accountable public sector.

I am grateful to the noble Lord for giving way. I am also grateful for his suggestion that I am usually very calm. However, I have been concerned because I have made contact with a number of organisations, and while informally I can be told what their views are, they are clear that they do not want to make any formal representations. In the case of some departments, officials have made it clear that the department does not expect the organisation to make any public statement. I am concerned about that. I do not think I have gone over the top. It is very different from the normal process of legislation. We are all used to being inundated—sometimes it is overwhelming—by comments from stakeholders on pieces of legislation. The noble Lord has said that he will seek to investigate individual matters. If I can bring him cases, I will. However, the issue is that when organisations are concerned, they will simply clam up, and I am not in the business of fingering civil servants. That is not something that I would ever do. However, there is a clear view that departments have made it absolutely plain to the organisations listed that they are not to make representations. I express very great concern about that. The Minister may be prepared to reflect on it. It would be very helpful if it was known throughout Whitehall that these organisations were perfectly free to make their views known, and that there would be no recriminations if they did.

It is quite difficult for government bodies to speak out against government policy. The noble Lord has been in government. I suppose that he is suffering from the realisation that in opposition things are a bit different.

With great respect, perhaps we may go back to the Marine and Coastal Access Bill. We spent six happy months debating it. In that time, representations were received from a considerable number of public bodies. I am not sure if the noble Lord is right to describe them as government bodies; we should call them public bodies. Yes, it irritated me enormously—how I wished for something like this Bill, because then I could have shut them up. However, I could not, it was right that I could not and it was right that those bodies expressed their views. This matter cannot simply be dismissed. This is a very serious matter of constitutional practice. There is clearly a feeling throughout the public Bills land that people are not able to express their views publicly. That is a matter of legitimate concern.

The noble Lord has expressed his point of view and I have given him the point of view from the Dispatch Box. It would be useful if he were able to provide instances that he feels show an abuse of government. I would be grateful to receive them.

I am grateful to the Minister for giving way. I previously backed up what the noble Lord, Lord Hunt, said, albeit in perhaps a slightly less dramatic way, but there is certainly some reluctance there. Is the Minister saying that if we meet that reluctance in the coming weeks, when inevitably we will want to get factual information out of organisations, we can say to people, “The Minister in the Lords, Lord Taylor of Holbeach, says that it’s okay for you to talk to us”? Can we use the Minister’s name in that way?

Heavens above, my Lords, I do not think that I can really be such a door-opener. What might we find? I say to all noble Lords that we have access to public bodies. Whether we are on the Front or the Back Benches in this House, we are capable of tabling Questions and we can find out facts. It is quite proper to do so if things are in the public domain. The Library is there to help us and, if we seek opinions, no doubt we all have contacts that we are able to use. I do not want this debate on the Bill to be stifled by ignorance but here we are talking about the consultation process that we are seeking to bring in through the Bill, once enacted.

One welcomes the steps that the Government are taking in the Bill to ensure that there is wider consultation, and the noble Lord’s Amendment 114 refers to the consultation that is necessary for the bodies listed in Schedules 1 to 6. Of course one welcomes this consultation, but with regard to the area with which I am particularly concerned—that of economic development—what sort of consultation will now occur on the Government’s policy of abolishing the regional development agencies, which are referred to in Schedule 1 to the Bill? To my knowledge, there was no consultation of any kind on that policy—indeed, rather the reverse.

Soon after the general election, we were told that the Secretary of State for Business, Innovation and Skills thought that the regional development agencies should be saved, and there was a tremendous sense of relief about that in the regions, particularly in the north. Indeed, I am told that the Secretary of State said that to the chairman and chief executive of one of the leading regional development agencies in the north. Then, a few weeks later, it was suddenly announced in the Budget that these bodies were to be abolished. A few days later, a joint paper appeared in the names of the Secretary of State for Business, Innovation and Skills and the Secretary of State for Communities and Local Government saying that the Government had decided to abolish them altogether and were now going to set up local economic partnerships. However, what consultation has occurred, and how is consultation now to take place in the light of the proposed new clause in Amendment 114 that the Minister intends to introduce? I should be very interested to hear his reply.

We are in effect debating all these bodies, as the noble Lord knows, and when we come to Schedule 1 there are amendments tabled—indeed, there is one in the name of the noble Lord, Lord Liddle—relating to the north-west, if I remember rightly. I notice that the Opposition have populated these amendments with suitable spokesmen for the regions. We will be debating that. Indeed, noble Lords should not forget that we will be debating it in the course of a piece of primary legislation. The political decision has in fact been made on the RDAs. Parliament has to agree to it but the political decision has been made. We are now talking about the process that will apply to future decisions.

I am sorry but that is not what the noble Lord’s Amendment 114 says. He is talking about a consultation process that applies to all the bodies listed in Schedules 1 to 6. Of course, I hope that during the course of our debates the regional development agencies—particularly those in the north of England—will be removed from Schedule 1, but there will still be no process of wider consultation, and we are going to be taking this decision with none of the normal consultation processes that one would expect when such a matter is before us. Therefore, I am still a bit mystified.

I have been passed a very helpful brief by my noble friend the Minister with responsibility for these matters, who happens, by chance, to be here at my side. She reminds me that the decision to close RDAs was in the coalition agreement; proposals for local enterprise partnerships to replace the RDAs were invited in June 2010 and a White Paper on sub-national growth—in other words, growth at a regional or local level—was published in October this year. Therefore, so far as concerns White Paper consultations, we are indeed in a period of consultation at this moment, and I suggest that the noble Lord gets about consulting it. Perhaps I can return to my comments on—

Perhaps I may try to clarify the position—and for once I am not talking about forestry or the Forestry Commission. The assertion was made by my noble friend Lord Hunt that certain public bodies—I emphasise “public bodies”, not government departments—have felt inhibited about expressing their views on this Bill. Is the Minister saying that if public bodies wish to make observations about the Bill, the Government are quite happy for them so to do?

I am not in a position to say that because I do not believe that that is what public bodies exist to do. They do not have a brief to comment on government legislation. However, they do have a brief to comment on anything that might affect them in particular, and that is why they are perfectly entitled to be involved in a consultation process on matters that may affect them during enactment of the Bill and during the presentation of a statutory instrument to change their position within the schedules, which is what the consultative process identified in Amendment 114 is all about. I should like to be able to talk more about that. The government amendment—

My Lords, I am still having some difficulty in understanding the Government’s position and in knowing exactly to which policy the noble Lord is referring in this context. We all know from long experience that there are many ways of influencing public bodies, and one of them, notwithstanding this legislation, is to make budgetary decisions that impact adversely on them. The comprehensive spending review has led many bodies to anticipate budgetary changes which may well be adverse for them. In those circumstances, and given the determination of this House to ensure effective and proper consultation at every stage of legislation, would it not be helpful, speaking as a fundamentalist, if the noble Lord were to declare that public bodies do have the right to comment on matters affecting them and that inclusion in any schedule is a matter that affects a public body and may well impact on the discharge of its statutory functions?

I am sorry but I am not prepared to concede that. I think that it would take public bodies into the role of advocacy and campaigning, which is not really their function. It is up to Governments to make decisions about these matters, followed by a process of consultation, and to make quite clear that all public bodies are affected.

I declare an interest as the chair of Consumer Focus for a few more days. Does the noble Lord not realise that some bodies on the list were established in order to give their opinion to government and more widely, and that their future, or the future of the role that they currently undertake, is therefore of vital importance to government? What the Minister seems to be saying is pretty appalling stuff: that the injunction on public bodies not to commentate extends not just to them talking to newspapers or lobbying Members of Parliament but even to talking to Ministers and responding to public consultation about their own future. That seems to me to be pretty draconian. If that is the Government’s position, frankly, it is shocking.

I think the noble Lord has got it totally wrong. I made it quite clear that any discussions concerning public bodies are a matter of consultation within departments and between departments and those public bodies. There is no question of inhibiting bodies in performing their proper function in relation to government, giving the advice which, by statute or by request, they are required to give to government. We shall be working closely with all public bodies in respect of these reforms. They affect people and their livelihoods and it has been beneficial for the Government to work with organisations. It is not the job of public bodies to lobby in relation to government policy.

My Lords, if that is where the line is, we understand it. Public bodies were set up primarily to administer policies which have been established by Parliament. Therefore, I still think that their inability to comment on policies pursued by government and others, or to inform Members of this House or another place of their opinion of the Government’s approach in this Bill, is a very severe inhibition of democracy. I think that is what the noble Lord is now saying. I understand that they can talk to their own departments and that they can respond in those areas, but if they cannot even inform Members of Parliament of their views, I think that is a restriction on the ability of Parliament to make a judgment.

My Lords, it would help me if the noble Lord, Lord Whitty, would tell the House how he could be prevented from making his opinions known if he wished to make them known to anyone?

My Lords, as a Member of this House, I can say what I like. As an officer of one of the bodies covered by the Bill, the injunction is that I shall not inform or campaign, or lobby Members of Parliament about a view which that organisation has and, in this context, a view which it has over its own future. I think that is a pretty severe restriction and it is something to which this House may wish to return. I do not want to pursue it further, but I put down a marker now that this seems to be quite an interference of the normal process of parliamentary government.

My Lords, perhaps I may have one more go at this. The noble Lord, Lord Whitty, and I have held positions in public bodies in our careers. If someone sent me that injunction, I would pay no attention to it.

My Lords, perhaps I can give example of the Information Commissioner listed in Schedule 7. One of his specific tasks is to adjudicate on the actions of government in withholding or providing information. Therefore, he is independent. Is the Minister saying that if a Member of this House made an inquiry of the Office of the Information Commissioner or any other public body it would not be right for the Information Commissioner or the other body not to provide the factual information to Members of this House?

I am not saying that at all. I do not suppose that any Member of this House will be able to say that they have had difficulty in getting that sort of factual information from public bodies or from government departments because that is a prerequisite of parliamentary responsibility, and I accept that. I think I should have made it quite clear that we recognise that it is beneficial for government to work with organisations and public bodies but it is not the job of public bodies to lobby in relation to government policy. I think that is a fair position to state and I think that is where the Government stand on this matter. If noble Lords disagree with it, fine, but that is the position that the Government take at the moment.

Government Amendment 114 echoes many of the proposals of my noble friend Lord Lester and the noble Lord, Lord Pannick, and of the Opposition Front Bench, but we believe that it goes further in some regards: for example, by stipulating a requirement for a 12-week consultation period, and by requiring Ministers to consult the Lord Chief Justice where a proposal relates to the administration of justice. I am pleased to note that paragraph 2 of yesterday’s report of the Delegated Powers Committee has welcomed this amendment.

I note the emphasis of my noble friend Lord Lester on the role of the public in any consultation process. In the same spirit, I note my noble friend Lord Greaves’s amendments to the government amendments on consultation, which would require that the Government publish a notice of the proposal to make an order under the Bill on the Government’s website and other places considered appropriate by a Minister, and to publish a summary of responses and the Minister’s response to them in a similar fashion.

I fully appreciate that in some circumstances, a public, properly publicised consultation in accordance with the Government’s existing code of practice will be appropriate. However, I also believe that there is a need for some flexibility here; it is important that the Government should be able to carry out proportionate, value-for-money consultations that minimise the burden on those consulted as well as on the Government. Indeed, such a consideration forms criterion 5 of the current code of practice on consultation, which was produced under the previous Administration.

Therefore, although I agree with the intent behind these amendments, in appropriate cases, I do not believe that they should be placed on the face of the Bill. The requirements in our proposed amendments mirror those in other legislation and do not preclude a public consultation in accordance with the Government’s code, if appropriate. It should be for Ministers to decide how to consult and for Parliament to hold them to account in this regard.

I hope, therefore, that noble Lords across the House will feel able to support government Amendments 114, 127 and 169, which create a parallel procedure for the other order-making powers in the Bill. I hope that, in the light of my comments, the noble Lord will feel able to withdraw his amendment and to support the Government’s proposals when they come forward.

My Lords, I thank the noble Lord, Lord Taylor, for his extensive response to the points raised in the debate. On the general point, I think the question still arises as to whether it would give comfort if the words “public consultation” appeared in the Bill. I believe, and I would pray in aid the noble Lords, Lord Greaves and Lord Maclennan, that it would give reassurance if we could see in the Bill when it eventually leaves your Lordships' House some reference to public consultation. I am sure that we shall return to this on Report. I certainly acknowledge that the government amendments move us into a better situation. I am also very grateful to him for the point he raised in response to my noble friend Lady Andrews about the 12-week period, which encompasses the actual consultation with outside bodies and organisations. That is very reassuring.

On what public bodies can and cannot do, clearly I shall not be able to bring to him any evidence that officials have acted improperly because it is quite clear that what officials have been doing in departments is simply enunciating the policy that the Minister has laid down tonight which is, very simply, that public bodies should not comment on public legislation. I am gobsmacked because, frequently in debate, noble Lords opposite, when in Opposition, commented and quoted public bodies which have commented on legislation. Looking at the list, I can pick out organisations with which I have had some dealings: the Committee on Climate Change is not able to comment or the Environment Agency, or Ofgem, or the Health and Safety Executive or Natural England. Goodness me, how I wish Natural England—

Natural England has been very keen to comment at certain stages of the legislation and the noble Lord is quite right to single it out. What I said was “comment on legislation”; I did not say that they were not in a position to comment on those areas of their responsibility. Of course, Governments set these bodies up with the idea of seeking their advice on these matters, but Governments have to have the responsibility for bringing legislation before the House and it is for Parliament to advise the Government through its procedures on what it thinks of the Government’s legislation.

My Lords, in my remarks I very advisedly quoted public legislation. I think it is a very rum do indeed that the organisations listed are clearly not being permitted to comment on this legislation. This raises huge matters of concern. In fact, looking at noble Lords, it adds to the concern that we feel about this legislation. Clearly, we will return. I am grateful to the Minister for the amendments that he will move. I beg leave to withdraw the amendment.

Amendment 3A withdrawn.

My Lords, I think this might be the moment for the Committee to break. I beg to move that the House be now resumed and that Committee stage begin again not before 8.45 pm.

House resumed. Committee to begin again not before 8.45 pm.