Committee (2nd Day)
Clause 1 : Power to abolish
Amendment 5 not moved.
6: Clause 1, page 1, line 3, at beginning insert “Subject to the provisions of section (Duty to promote sustainable development),”
My Lords, I am glad that I was here in good time. I will speak also to Amendment 103 in the same group. These amendments would require persons and bodies exercising functions transferred to them under this Bill to act according to the principles of sustainable development.
I am aware that the coalition Government have ambitious plans to be the greenest Government ever. The coalition agreement itself has specific commitments to tackling climate change, protecting wildlife and a series of environ1mental objectives alongside the objectives of economic prosperity and fairness in social policy—all the components of sustainable development. The Minister and I had many happy discussions on sustainable development in the previous Parliament, when we occupied different roles.
In July this year, the Secretary of State for Defra, Caroline Spelman, said:
“This Government are committed to sustainable development and to becoming the greenest Government ever, promoting economic development, environmental protection and an improving quality of life for everyone in the UK”.—[Official Report, 22/7/10; col. WS 83.]
I want to write this into this Bill.
Many of the bodies listed in this Bill have a range of generic and specific duties or policy commitments that are there to safeguard the general public interest. The risk across a range of such duties and commitments is that these safeguards will be removed as functions are transferred to a range of companies, community interest companies, charities, other unincorporated organisations or persons, even indeed to government departments. The purpose of this amendment is to safeguard the public interest in one respect—sustainable development.
The danger is that this Bill, and its operation, will result in this and other safeguards being written out or restricted by the constitution or viewpoint of the body or person that is taking over the functions. It is easy to think of a lot of examples. Somewhere functions may be transferred to perfectly good organisations with perfectly desirable objectives. For example, should the management of Natural England’s national nature reserves, or some of them, be outsourced to other conservation bodies, it is entirely foreseeable that future management arrangements might consider not other environmental outcomes but merely the contribution that national nature reserves might make to the very narrow area of nature conservation. It is appropriate, however, that other outcomes ought to include those which Natural England would consider at the moment, such as the contribution reserves could make to local economies and social outcomes—for example, enhancing the health of local people through increased provision of health walks, which may well contribute to better physical and mental health among the people taking part.
The point is that, at the moment, a large number of these organisations have it written into their objectives and their purpose that they have a wider objective and purpose than simply the very narrow one associated with the particular facilities or services being provided.
There have been many attempts over the years to provide the best legal framework for sustainable development and protecting the environment. Over 100 different duties have been established in law, many of them for the bodies and offices listed in this Bill. The purpose of this amendment is to make sure that, if services, facilities and functions of these organisations are transferred to other people or to other bodies, these essential purposes and safeguards remain. I beg to move.
I support my noble friend and the amendment. Undoubtedly, it may be regarded as not belonging in a skeleton Bill but it provides a safeguard to ensure that the Government’s intentions are made good. It is not an additional, unnecessary decoration on the Christmas tree.
In Schedule 1, there are a number of bodies which can significantly affect the environment: the Commission for Rural Communities, the Environment Protection Advisory Committees, the regional and local fisheries advisory committees and the various regional development agencies. In Schedule 3, there are the internal drainage boards and the Joint Nature Conservation Committee. In Schedule 4, there is the Marine Management Organisation. In Schedule 5, there are the internal drainage boards. I select those merely at random; there are many more. For the avoidance of doubt, it would be a safeguard to include the amendment.
My Lords, the noble Lord, Lord Greaves, is right to remind us of our previous debates on sustainability and climate change. I recall the days when the noble Lord, Lord Taylor, was standing here and urging the Government to do better. He now has an opportunity to show that he is consistent in taking this message into government.
The noble Lord, Lord Greaves, has pinpointed a potential weakness in the construct of the Bill. Noble Lords will know that the Bill allows a Minister by order under Clause 1 to transfer a function that is being abolished to an eligible person. The definition of eligible person includes in Clause 1(3)(a) to (e) companies limited by guarantee, community interest companies or a body of trustees or other unincorporated body of persons. Subsequent clauses extend the ability of Ministers to transfer functions of bodies listed in Schedules 2 to 7.
It would be helpful to know the criteria under which functions of public bodies might be transferred—in particular, to companies or unincorporated bodies of people. So little information is available. The impact assessment is distinguished by its inability to give any figures whatsoever for the financing consequences of the Bill. In particular, the Bill and the Explanatory Notes are silent about how desirable government policies will be transferred when those functions are transferred to companies or to unincorporated bodies of people. Sustainable development is a very good illustration of the point. We are told that the current Government are taking forward desirable policies on sustainability. Those policies relate not just to central Government but to local government and to other public bodies. Many of the organisations listed in Schedules 1 to 7 would be expected to enact the general principles of government policy on sustainability.
If those functions are now to be transferred outside the public domain into companies or into unincorporated groups of individuals, the question arises: how do we ensure that sustainability issues will be carried forward? How will that be monitored, or are the Government saying that, once a function has been transferred outwith the public sector, they are washing their hands of it and there is no guarantee that sustainability issues will be carried forward? That is an important debate.
I am very grateful to my noble friend Lord Greaves for bringing forward this amendment. As the noble Lord, Lord Hunt of Kings Heath, made clear, I am well rehearsed on the arguments for sustainability and I would like to think that the Government too share the conviction that sustainability lies at the core of good governance within government.
This amendment seeks to add a further requirement that when functions are transferred from one body to another, the duty to promote sustainable development transfers along with the function, whether or not the duty is set out in statute. I am happy to confirm to my noble friend Lord Greaves that the Government absolutely share his desire to make sustainable development a key part of public life and a consideration that runs through everything we do.
If it runs through everything that the coalition Government are doing, how does the noble Lord reconcile with that the selling off of parts of national parks? We are going to come to it under Amendment 74 from the noble Lord, Lord Greaves. Surely that contradicts everything that the Minister has just been saying.
I think the noble Lord is anticipating government policy incorrectly. There is no question of us selling off the national parks—the noble Lord must allow me to correct him. We will debate national parks because they feature in the schedules to the Bill. It will give an opportunity for my noble friend Lord Henley—who is the Minister within the department—to explain in full the Government’s proposal in this respect. The statement that the Government are proposing to sell off national parks, or part of the national parks, is incorrect.
I am grateful if that is correct but the Minister may have seen a report on “Countryfile” on BBC television yesterday in which it was absolutely clear that land within national parks is already being sold off. How does he reconcile that with what he has just said, the sustainability argument and the concern that the coalition professes?
I think I have answered the question as best as I can. I cannot refer to a television programme which I have not seen, so it would be best if I were allowed to move on by stating the general principle that underlines our approach to this amendment. I consider it to be useful because it does indeed give us the opportunity to debate the issue of sustainability within the context of this Bill. No doubt it will arise when we come to further issues and parts of the schedules.
Where we differ from the amendment is how we go about achieving this important objective. We believe this amendment would go further and potentially add unnecessary bureaucratic hoops through which some public bodies will have to jump. It is a general and not a specific requirement to those bodies which already have a sustainability requirement. We do not want public bodies to get distracted by having constantly to prove to us that they are delivering sustainable development. We expect it of them. We do not necessarily expect them to be saying that they are doing it all the time. We want them to get on with delivering their core functions in a sustainable way.
The noble Lord, Lord Hunt, asked specifically about when private companies are involved in delivering a service that is currently undertaken by a public body. It is up to the relevant Minister in charge to determine how much they will be held to account, for example by attaching conditions to the contract or funding agreement. It is then for that Minister to account to Parliament and the public for such decisions. This reform programme is about making public bodies more accountable and more efficient.
Does the noble Lord agree that one of the problems with this Bill is that potentially all the functions listed in Schedules 1 to 7 could actually be transferred to a company or a body of trustees or other incorporated body of persons? This is our problem with debating this Bill. The powers that it gives to Ministers are so draconian that all of these functions could find themselves in the private sector in one way or another.
The Minister is saying that we should not worry because it will be up to each Minister to decide whether in any contractual situation they may or may not put something in about sustainability. But does he accept that our problem is that that gives far too much control to Ministers and that parliamentary oversight is very limited?
On the contrary: Ministers are accountable to Parliament. If Ministers do not perform how Parliament expects, it is up to Parliament to make that clear. I have no difficulty with this. It is about making Ministers accountable for the conduct of the public sector. We want to mainstream sustainable development so that it is not a bolt-on option, but integral to everything that public bodies do. But we are committed to doing it on a non-statutory basis. For that reason, I ask my noble friend to withdraw his amendment.
The Minister gave the impression that it might involve new bodies in a continuing dialogue with Ministers about sustainable development. But he will have observed that Amendment 103 makes it clear that the transfer of public functions will go to bodies and,
“be subject to the requirement to promote sustainable development”,
only where it is appropriate. That would seem to allow the avoidance of the kind of tiresome debate that he has adumbrated in the early part of his remarks. This would be just a safeguard, a safety net. From that point of view, it could be a helpful addition to the Bill.
My Lords, ultimately, there is no greater safeguard than the will of Parliament, as expressed through the accountability of Ministers at the Dispatch Box, on all issues. I understand exactly what noble Lords are saying from all sides of the House, but for a Government committed to building sustainability into all their activities, there is no need to make it explicit. It is implicit in all that this Government are doing.
My Lords, I am grateful for some of the assurances that the Minister has given. But the debate which has taken place on this amendment—I thank everyone who has taken part—comes to the core of a major flaw in the Bill, as the noble Lord, Lord Hunt, suggested. Sustainable development is just one example of the safeguards written in countless reams of legislation relating to the bodies listed in the schedules to this Bill.
The Minister said that I am trying to make one further requirement: I am tempted to say that I am trying to make a requirement. As the Bill is set out, there are few clear legislative requirements for when functions are transferred from existing bodies to other bodies, whether they are existing bodies being closed down or they are just being run down and having some of their functions transferred.
There was a slight diversion in the discussion about national parks. Indeed, national parks are one of the important areas to be included in our discussions about the particular bodies affected by this Bill. I do not want to pre-empt that debate, except to say that it is very good that the Defra Minister, my noble friend Lord Henley, will take part in that debate. Finding out exactly what the Government intend for national parks will be a crucial part of the scrutiny of this Bill. I thank the Government and my noble friend Lord Henley for that. No doubt my noble friend Lord Taylor is rather pleased that the noble Lord, Lord Henley, will be taking part in it. There is no doubt that national parks authorities are in the process of selling off or leasing out property for other people to manage. I raise the issue of the Losehill educational centre in the Peak District near Castleton. The national parks authority is considering proposals by people who are willing to buy it and take it over. So there is a certain amount of selling-off going on as a result of reduced budgets and there is a great deal of concern and alarm over Losehill, but that is a diversion from this debate.
The Minister said, “It is about making public bodies more accountable and more efficient”. I am sorry the previous group of amendments was not moved because accountability is crucial here. If functions are being moved to the private sector in some cases—
My Lords, that is one assurance I can well believe.
This amendment is about keeping some of the safeguards which exist in legislative form in relation to some of the bodies listed. There are many more safeguards of different sorts which are in legislative form at the moment. One of the real concerns over this Bill is the process by which Parliament will be able to scrutinise and the Government will be accountable to Parliament in the discussion of whether these safeguards are going to remain. Ministers are indeed accountable to Parliament, but ministerial accountability to Parliament at the Dispatch Box, when we can ask questions and raise debates and so on, is rather different from legislation written down in the statutes of the land, in the law of England, which can, if necessary, be challenged in court. It is a different sort of accountability if people are responsible to the courts of the land for following the laws which have been set down by Parliament. It is in many ways a much more robust form of accountability and we are concerned that it is going to go if, as the Minister says, the Government prefer that all this is done on a non-statutory basis. The ministerial orders which will be responsible for making a lot of the changes proposed to the organisations set out in the schedules are in themselves legislation. To suggest that a lot of it will be non-statutory suggests that those orders will not contain these safeguards, and that, too, is a major concern.
These are important issues which go beyond the particular issue of sustainable development and I am sure they will come up again and again as we continue to debate this Bill. For the moment, I beg leave to withdraw the amendment.
Amendment 6 withdrawn.
Amendment 7 not moved.
7A: Clause 1, page 1, line 4, leave out subsection (2) and insert—
“(2) A Minister may, subject to section 8, by order transfer all functions, powers and duties of an office or body specified in Schedule 1 to either—
(a) any Minister, the Scottish Ministers, the Northern Ireland Department or the Welsh Ministers, or(b) an eligible person.”
This is a probing amendment arising from the fact that Schedule 1 includes a collection of very different bodies in terms of the Government’s intentions as to their functions, powers and duties. It is a very miscellaneous group and I think we can discern four or five categories. For example, there are some bodies that are for straight abolition, and British Shipbuilders would fall into that category. There is then a second category where the powers, functions and duties will revert back to Ministers or to departmental civil servants. Then there is a third category where the powers, functions and duties are being transferred in whole or in part to another public body. And there is yet a further category where powers, functions and duties are being transferred in whole or in part to a private body, for example Consumer Focus to Citizens Advice. Then there are some like the Security Industry Authority—I declare an interest as chairman of that body—where the powers, functions and duties are going eventually, via phased transition, to a private body but with a residual public function.
When my noble friend Lord Whitty and I were looking to try to devise an amendment, we could not allocate these different bodies to the different categories without naming each one of them, which we found impossible to do. That is why, as I say, this is a probing amendment. Does the Minster recognise that there are different consequences, not least for Parliament, of the different intentions for bodies in Schedule 1? I am asking for these to be spelt out in the Bill because they materially affect what is going to happen to these different bodies.
On Amendment 11, my noble friend Lord Whitty was looking to delete “other incorporated body” as an eligible body to transfer into on the grounds that he found it too wide and too unaccountable in terms of its range. So the gist of these amendments is to try to get some coherence and recognise that different bodies should be dealt with in different ways. I beg to move.
My Lords, I support my noble friend in her amendments. As we have already briefly debated, Clause 1(3) is very important because it specifies which bodies and functions can be transferred from the bodies listed in the schedules. My noble friend is, first, seeking clarity and then, importantly, asking the Government questions, particularly about their ability to transfer functions to an unincorporated body of persons.
I find it surprising that the noble Lord is proposing to give himself power to give such functions to a group of unincorporated persons. It would be helpful if he could explain under what circumstances this could happen and what safeguards would be in place. In a sense we are following on from our previous debate. Will the accounts of such organisations come under the auspices of the Comptroller and Auditor-General? Will freedom of information or data protection legislation apply to the same extent as when functions are delivered in the public sector? Potentially all the functions carried out by all the bodies listed in these schedules could be transferred to such bodies. My own view and that of the Opposition is that those powers are far too open-ended. The noble Lord has said that in the end accountability is to Parliament, and that is so. However, the problem we have, as the noble Lord, Lord Greaves, has spotted, is that it is likely that even when we have orders, they will in themselves give considerable discretion to Ministers in their dealings with the functions that are encompassed by the bodies listed in the Bill.
When it comes to the orders, we have another problem. We have the Cunningham committee’s report on conventions. We debated that in Question Time this afternoon. But the noble Lord, Lord Taylor, will know that the conclusion of the Cunningham convention in relation to this House seeking to defeat secondary legislation is now disputed by the noble Lord, Lord Strathclyde, the Leader of the House, in correspondence between himself and the Merits Select Committee which has been published in the past few weeks. So we are not even sure at this stage whether the Government even accept that it is the right of this House to vote to seek to defeat the Government on secondary legislation.
Behind the amendment moved by my noble friend lies a real concern about the draconian powers being given to Ministers and a doubt whether the kind of parliamentary scrutiny currently envisaged in this Bill is sufficient to ensure proper discharge of ministerial accountability to Parliament.
My Lords, I should like to add a question to the series of questions put by the noble Lord, Lord Hunt of Kings Heath, and give my support for the amendment tabled by the noble Baroness, Lady Henig. Is it the Minister’s understanding that if these functions are transferred to a company limited by guarantee, for example, judicial review in the courts would apply to the exercise of those functions by such a body, and would the Human Rights Act apply where appropriate to the content of any decision taken by such a body? This is of obvious importance because if the answer is no to either of those matters, the very important safeguards that exist when the functions are exercised by public bodies would be lost.
My Lords, since this is the first time that I have participated in Committee on the Bill, perhaps I should declare my interest as a board member of Ofcom. I have to admit that I am puzzled by these amendments. The purpose of the Bill is to enable the Government to bring forward over time specific and detailed proposals on each of these bodies and to put those proposals in front of Parliament. A huge prize can be won by enabling this process to be conducted as quickly and effectively as possible. If we try to box the Government in by defining all the proposals up front and limiting the scope of what the answers might be, we complicate the process in a way that will make it impossible for the Government to bring forward those proposals one by one and to have the debate around them that each will require. These amendments are self-defeating because, in trying to put the cart before the horse by asking the Government to specify what they want to do before bringing forward the detailed proposals, they would limit the Government’s scope for action.
My Lords, I found the intervention by the noble Lord opposite quite interesting because I do not think that Ofcom is on any of these long lists. However, a similar regulator, the Office of Rail Regulation, is on a list, and I shall speak to that in a later amendment. I am sorry; Ofcom is on the list set out in Schedule 7. Given the amount of legislative time it has taken over the years to set up these organisations, it seems a bit odd for the noble Lord to suggest that it is all right for them to be abolished, changed or whatever by secondary legislation without any debate.
My Lords, I thank the noble Baroness, Lady Henig, for moving her amendment, which also stands in the name of the noble Lord, Lord Whitty. It and the amendments grouped with it raise interesting aspects of the Bill and I am grateful for the debate that has taken place. They concern the definition of an eligible person in Clause 1, and the ability of Ministers to transfer functions to persons so defined. Perhaps I can best help by saying that when we come to the debates about the different bodies, I will debate in some detail their functions and where they are going, as well as the nature of the changes that will be involved. I am sure that we will have every opportunity to do this.
Amendment 7A would remove Clause 1(2) and replace it with a new subsection that allowed for the transfer of functions to a Minister in the UK Government or the devolved Administrations, or to an eligible person. Amendment 9 would remove subsection (3)(a), thereby removing Ministers from the list of eligible persons under subsection (3). However, Ministers would still be covered by the proposed amended definition in subsection 3(b) of,
“any other person exercising public functions”.
So, taken together, these amendments would have no real substantive effect on the Bill.
Amendment 11 would remove unincorporated bodies, other than bodies of trustees, from the list of eligible persons under subsection (3). This amendment would prevent the transfer of functions to a variety of organisations, such as unincorporated partnerships. Perhaps I may illustrate this in a way that might particularly interest the noble Lord, Lord Liddle. I refer to the transfer of the regional development agencies to the local enterprise partnership structure, and the way in which that might function. The impact of Amendment 7A would be far wider because it would remove the option for Ministers to transfer any public function to an unincorporated body regardless of the nature and scope of the policy intent. I do not believe that this is a desirable outcome because it would risk ruling out a range of innovative approaches to the delivery of public functions. Our specific intention for the transfer of functions from RDAs is that local enterprise partnerships should be free to adopt the arrangements that suit them best as part of our move towards more locally driven, targeted approaches to growth.
I know that we will have an opportunity to talk about this in detail as a policy when we come to the debates on those bodies, but the amendment would remove the option to form an unincorporated partnership, and would go further by limiting options for public bodies reform in general. So, from that point of view, we resist the amendment because it goes to the heart of some of the changes that we are proposing.
Finally, Amendment 16A seeks to require that when a Minister lays an order under the powers in the Bill, the order names the eligible person to which any transferred functions are to be transferred. We do not believe that it is necessary to include such a provision in the Bill as the orders and the accompanying explanatory material, which has already been the subject of various amendments in Committee, would give this information as a matter of course. Indeed, the provision of such information would be covered by the proposed requirement to provide, as part of the explanatory material, the reasoning for the order.
I apologise for interrupting the Minister. I wonder whether it might help the Committee if the Government could publish very soon some of these orders in draft form. There are precedents for doing such a thing, and at least we would know and understand a bit more the nature of the orders themselves.
The noble Lord, Lord Rowlands, has made an interesting suggestion. I think that by the time we have gone through a number of debates on individual bodies, noble Lords may well have quite a substantial idea of the pattern that the orders may well form. I hope to be able to provide noble Lords with the background to a lot of the changes that are anticipated by this legislation.
Perhaps I may respond to some specific points. The noble Lord, Lord Hunt—it might have been the noble Lord, Lord Pannick—asked about audit. Where public bodies are retained as a result of the 2010 review process, and in particular where functions have been transferred to them from other bodies, I assure the Committee that they will continue to be subject to the existing requirements for accounting, reporting, and data confidentiality issues. NDPBs are required to have in place robust governance and accountability arrangements, and both the Cabinet Office and the Treasury provide detailed guidance on the matter. Published annual reports and accounts are the main vehicle by which departments and public bodies regularly inform Parliament and the public about their activities and expenditure.
On freedom of information, I further reassure the House that where bodies already subject to the Freedom of Information Act are merged to form new arm’s-length bodies that are established by and at least partly constituted by appointments made to government, steps will be taken to ensure that they fall within its scope. Where a body’s functions are transferred to another body that is already subject to the Act, they will naturally be subject to that Act.
It is surely up to the Minister to determine to what extent that is transferred. It is certainly not referred to here as being an obligation on any transfer. One would expect any orders that are presented to be covered by the Explanatory Notes accompanying any secondary legislation.
Can I press the Minister a little more on freedom of information? I listened very carefully to what he said, and he promised that any current statutory obligation for freedom of information would be transferred to a private company taking on a body’s duties and functions. At the moment this duty is statutory. Will it continue to be so?
If another non-departmental public body takes them on, that will indeed be the case.
On the whole business of freedom of information, it might be opportune for me to say that the Government are committed to extending the scope of the Freedom of Information Act to provide greater transparency, and a number of options for meeting this pledge—including the further extension to additional bodies carrying out public functions—are being considered by the Ministry of Justice. I therefore expect the House to be informed about this during the passage of the Bill.
Can I follow that with a question? If a forest was sold to a private landowner and the terms of the sale included a continuation of existing access for the public to the forest and its facilities, would that still be classed as a public function even though it was being carried out by a private landowner?
To the extent that the sale would impose conditions on any buyer, I imagine that the terms of such a sale would insist that this right of access was written into the agreement. Indeed, to the extent that the Government are responsible for safeguarding public interest in this respect, it would be for them to ensure that the agreement was held to by any prospective purchaser.
I am sorry but I will, if I may, go back to the whole business of public access. Public access is a right; it is enshrined in law. If people have right of access, they have right of access; it cannot be challenged. It would be up to the Government to ensure that any body that was party to a contract that included public access maintained that responsibility.
I thank the Minister for his full and considered reply, and all those who have intervened on this amendment. I do not seek to box the Government in; I seek clarity on the serious issue of what will happen to many of these bodies. A lot of parliamentary time and effort went into establishing them and it is really important to spell out the consequences of their abolition, which clearly will differ depending on the category of abolition we are talking about. We are talking not only about abolition; clearly we are talking about abolition and something else. Questions from noble Lords have pointed up their very sincere and strong anxieties as well as the important issues at stake. More of these issues will emerge as we go through this Bill.
We will be able to debate them one by one, but I sought in this amendment to get them into some sort of category so we can see similarities and debate them as classes.
I utterly understand the purpose of the noble Baroness’s amendment and the challenge it presents to the Government to give her answers. This has been a very general discussion on the whole reform programme and a number of matters have been raised. I hope it will be of help if I deal on reflection with questions to which I have been unable to supply full answers in a letter that I can leave with the Library of the House, as well as addressing it to her, of course, and to the noble Lord, Lord Whitty, so that people can be properly informed on all the aspects that have been raised in what has been a very valuable debate.
I am most grateful to the noble Lord for taking seriously the spirit of the amendments. As I said before, we are trying to get at this issue of different categories. I am grateful for his response. I said at the outset that these were probing amendments, and I therefore beg leave to withdraw the amendment.
Amendment 7A withdrawn.
8: Clause 1, page 1, line 6, at beginning insert “Subject to the exception in subsection (4),”
My Lords, I hope I will not detain the House for long on this set of amendments. Like the noble Baroness, Lady Henig, I tabled them as probing amendments that are intended to be helpful to the Government by giving them an opportunity to think again about some of the issues at stake.
The issue is the broader subject of the future of economic regeneration policy—regional development policy—and we will obviously have a political debate about this when we come to Schedule 1. Several of us will move amendments to delete from the schedule the abolition of the regional development agencies. That is not the purpose of this set of amendments, however, which assume we will be largely unsuccessful. They are basically about the architecture of the scene on that assumption.
The point of Amendment 12 is basically that the local enterprise partnerships that are being set up should be one of the “eligible persons” to whom functions can be transferred in this situation. At the moment there is a lot of concern out there that these bodies are being set up without assets, money or any clear role. This is an opportunity for the Government to clarify that they intend them to have clear functions and that they will be taking powers to transfer functions to them. This is therefore an opportunity to help the Government to reassure people that this is the case.
Secondly, the Government have said that their policy in this area is motivated by localism and that they want to ensure that there is more local control over these things. They have painted the regional development agencies as a top-down new Labour monstrosity that was not really the localist solution favoured by the coalition Government. Amendment 16 basically states that if one accepts that that is the motivation—of course, I am willing to give the Government the benefit of the doubt if that proves to be the case—then surely the Government should transfer the functions of the abolished RDAs to local bodies within the region rather than centralising them.
Again, the fear is that many of the officials who never liked the setting up of the RDAs in the first place will grab back these powers to the centre: that they have taken advantage of the feeling of localism that inspired the Government’s proposals and have said, “Right, we shall take back to the centre many of these functions”. I do not think that that is what the Government intended, and the purpose of Amendment 16 is to prevent the Government from centralising these functions and to keep them at a regional or local level. I beg to move.
I support my noble friend Lord Liddle. He is much identified with the west of the north—if I may put it that way—whereas I am identified with the east coast, where we have rather a lot of snow at the moment as well as very particular problems.
I hope that the Minister will think a little more about the constitutional issues. In reality, the RDA in the north-east was not imposed from London. Way back in, I think, 1987 or 1988, my noble friend Lord Radice put forward in a Private Member’s Bill in the other place the idea of establishing a regional body in the north-east. There was much pressure at that time within the region for such a body to deal with economic matters and regeneration. At that stage, we were going through the end of ship-building in the north-east and—as I knew all too well—the closure of steelworks. We also knew that we were coming to the end of the coal-mining industry—thereby hangs a tale, but I shall not go there—so the body was created in the region but it also received the support of the then Conservative Government. The RDA in the north-east started in a totally different way from the other RDAs, as it was started through local enthusiasm and commitment to the region as a whole, which is a very small region in comparison to the rest of the country.
Amendment 16 deals with an important issue, given the fear in the north-east that some of the critical decisions will now go to the body that is to be chaired by the noble Lord, Lord Heseltine. The Government—and I shall make these arguments later as the Bill progresses—are making a huge mistake in the north-east. It is simply not true to say that people there want the RDA to be broken up. I listened carefully to the Minister last week when he said that the idea had come before the election from discussions that his party were involved in with business. In the north-east, that was not the message that business was giving. However, I shall say much more on that later.
In reality, the RDA in the north-east came from the locality, was acknowledged by the Minister’s party when it was previously in government and has continued and fitted into the structure and architecture that my party introduced after it came into government in 1997. There is great fear and anxiety about the new architecture but, whatever the architecture is, the north-east will work with it—even if we think it a mistake—because we want the best for the people and industry in the region. However, we wish to make sure that decisions—particularly on some of the bigger projects—stay local and are not taken into the national body that the noble Lord, Lord Heseltine, will chair. I hope that the Minister can give us that reassurance through these probing amendments.
My Lords, I, too, support the amendment moved by my noble friend Lord Liddle, and I associate myself with the remarks made by my noble friend Lady Armstrong. I, too, come from the east side of the region. Indeed, she spent the early part of her career in the ward that I now represent and she has obviously benefited greatly from that experience.
Today’s debate is quite significant in terms of the problems of the north-east. This morning, I read that Durham University Business School has produced a report for the soon-to-be-abolished One North East that suggests alarming implications for the region. The report refers to 50,000 jobs being lost in the near future, 20,000 of which will be in the private sector, with a loss of £2 billion to the regional economy over the next few years. The report has provoked the chairman of the development agency—a leading private sector businessman in the region who hails from Sunderland—to renew his criticism of the current trend of government policy. It is clear that he is very critical of the decision to abolish the agency and that the private sector in the region, for the most part, wishes the agency to continue. If the current policy is maintained, of course that will not happen.
In addition to those serious concerns, there is another issue that could be partly addressed by an amendment along the lines of Amendment 16, which seeks to require that,
“the ‘eligible person’ to which functions are transferred must be located within the region”.
I invite the Minister to agree that if Amendment 16 is accepted—and even if it is not—the same principle could be applied to the assets built up by the agency within the region. When I asked a Written Question about that recently, I received an answer that I would say was remarkable for its opacity if it were not, I am afraid, characteristic of most of the Written Answers that I and other noble Lords receive. Referring to the White Paper on local growth, the Written Answer stated:
“As set out in the White Paper … RDA assets and liabilities will be transferred or disposed of in line with a clear set of principles which include a key aim of achieving the best possible outcome for the region consistent with achieving value for the public purse”.—[Official Report, 22/11/10; col. WA 286.]
However, the White Paper states that the principal criteria will be,
“that a reasonable balance is reached as part of disposal/transfer between national deficit reduction, national policy aims and local ambitions/opportunity”.
In other words, the local element seems to be the back runner in that field of three considerations.
I hope that the Minister will give a clearer indication that the proceeds of any asset disposal—if assets are indeed to be disposed of, although they may well be better retained within the portfolio of agencies or other bodies that survive the abolition of the RDAs—should be directed to the region to which they have made a significant contribution over the years. The regions will be desperately in need of those, to judge by the report published by One North East today.
My Lords, I have considerable sympathy with the gist of Amendments 8, 12 and 16. I am aware that we will discuss regional development agencies in their own right not much further along in the Bill—at least, not much further down the page—so I will reserve most of what I want to say for that time. However, we have to see the amendments and the future—or non-future—of RDAs and where their functions are going to go in the context of what will, in effect, be the destruction or removal of the entire regional tier of government in this country. That may be a good thing or a bad thing, but things will be very different from what they are now.
In my view, this decision has been made from a very south-east of England perspective. People tell me that, given London’s governance arrangements nowadays with the mayor and the London Assembly, a regional development agency in London is redundant. I can understand that. People also tell me that the regions that have been created and drawn on a map in the south-east make no sense whatsoever. In any case, it is not clear why a regional development agency is needed in a part of the country that, at least to those of us who live in the north of England and other distant parts of the realm, appears to be relatively prosperous compared with the regions in which we live.
There may be a question as to whether a uniform pattern of regional government is required across the country, but what is—and always has been—clear is that some level of regional government, or governance, in the northern regions is essential. We now face the position in which, not very far to the north, Scotland has its own Parliament, which has an increasingly federal relationship with the rest of the UK. Scotland is able to make decisions for itself and, clearly, can attract and create investment in a way in which we cannot. The idea that Yorkshire, however you define its exact boundaries, and the north-west of England—never mind the north-east, about which other noble Lords have spoken eloquently—are not regions in their own right with an important role to play in economic development in particular and in a series of regional associations, and in regional provision of services of many kinds, seems to me to be nonsense.
I forgot to declare my interest at the beginning of Committee stage as a member of Pendle Borough Council, so I do that now. Some of us who live perhaps in the fringe areas of the north-west get very uptight about what we see as the attempted dominance of the region by Manchester and Liverpool as Greater Manchester and Merseyside. Nevertheless, no one who lives in the north-west would deny that they live in the north-west, which is a clearly understood and accepted region of England. It seems extraordinary to me that our regional level of government is being abolished altogether.
I am all in favour of decentralisation and devolution within the region, but whether the local economic partnerships—which I hope will be set up in all areas, although we have not got them in Lancashire yet—will be the answer is a matter that we will need to see in future. If we are not careful, we could end up with a hotchpotch system in which LEPs will be very effective in areas such as Greater Manchester and Merseyside but much less effective in areas such as Lancashire, because they may not reflect the genuine economic geography there. There is a big argument going on within Lancashire, as some noble Lords will know, about exactly which areas the LEPs will cover. If we are not careful, there is a real danger that we will end up with a two-tier system, which would be unfortunate.
The question is whether the regional development agency has been of any use to people on the ground in, for example, Pennine Lancashire, where I live. The answer is that, yes, it has. The regional development agency as an organisation has been able to hand out to local councils the capital moneys that the Government were making available and it has been able, to some extent, to co-ordinate private sector investment as well. That has been extremely valuable. At the moment, no such money—or very little new money—is coming from the Government for Pennine Lancashire. Schemes that we had, such as housing market renewal, have been closed down or are about to be closed down at the end of the financial year. What used to be called the council’s capital allocations—more recently, they have been called the housing pots—are also being ended, so there is no real money for people to hand out at the moment.
However, it is inconceivable that public sector regeneration and development moneys will not be made available by central government in future, so there needs to be a mechanism by which such moneys can be channelled to people in the region or sub-region who are capable of making sensible decisions about priorities within the region. That is where Amendment 8, which has been tabled by the noble Lord, Lord Liddle, comes in. The idea that people sitting in London could decide whether a scheme in Nelson, Burnley, Accrington or Blackburn should receive the limited amount of money that is available at any given time—or decide how that money should be divided between those or other places on the ground—is ludicrous. Civil servants in London are simply not capable of sensibly making those decisions. At the moment, officers of the regional development agency—both the elected officers, if I may call them that, and the permanent staff—travel around the region, visit places and find out for themselves by seeing things on the ground. We occasionally get visits from people from government departments in London. They set off on the train from Euston in the morning and come and spend three or four hours during the day before going back. For them, it is as if they had been visiting a foreign land, as it is a day out when they do not have to do any work. The idea that those people could maintain a steady and constant relationship with people on the ground—people in the council, the local business community and other local organisations—is far-fetched, to put it mildly. They could not do that. Given the number of local authorities in the country, they would require a huge number of staff anyway, which just will not be there.
Some sort of regional organisation is necessary. If the new LEPs are to do that, so be it. However, we have to understand that. In my view, it would be disastrous if a lot of the functions that are currently performed at regional level—either in the regional offices or in the RDAs—are moved to London or elsewhere in England. That would be absolutely disastrous. If RDAs are to close down, the LEPs appear to be the only bodies that could fulfil their function. Amendment 12, which suggests that the transfer of functions must be to somewhere within the existing regions, is therefore crucial. These are fundamental issues that are not just a matter of efficient organisation of services and functions but a fundamental matter of whether decisions are made by people who are sufficiently local to have the understanding, contacts and networks to make sensible decisions. I support the amendment.
My Lords, I have lived, and worked in industry, in the north-east for 55 years. I have been disappointed that so far in this debate we have heard nothing about the role of the local authorities. Nor have we heard from that region, which, from my perspective, is the Tees, the Wear and the Tyne; that is where the development has taken place. Middlesbrough is the largest importer of cars in the country—noble Lords might not think that is a fantastic thing to be done in that particular town, but there it is. I have worked in Stockton-on-Tees, in Hartlepool and up the coast of Durham when there were coal-mines, which the noble Baroness, Lady Armstrong, was reminding us about. We equipped Wearmouth and Westoe in the middle of Sunderland, I worked in Gateshead and I closed a foundry in Jarrow.
Noble Lords need to remember that in that part of the country, including Northumberland—with the greatest respect, it is completely different from, for example, the Durham bit of Teesside; again we have these curious metropolitan boundaries, as well as the county boundaries—the people of the north-east, as it was then called, voted against having a regional assembly.
I would be the last person to criticise One North East; I have benefited from it in my life in Barnard Castle, at the Bowes Museum. But if there is a body that has a lot of money, a lot of people are going to beat a path to its door, treat it with respect and have all sorts of negotiations with it that end up with successful grants. The matter is much more complicated than just being complimentary about One North East.
I dissent from my noble friend Lord Greaves, however; I do not believe that there is a place for regional government in the north-east of England. There is a place for strong local government; the noble Lord, Lord Beecham, does not have to be told about that. It is quite likely—in fact, I would put my money on this—that a combination of whatever the Government propose in the place of RDAs, some functions for central government, some important functions for local government and some important functions for councils and private sector organisations is quite likely to be a more effective force for development than trying to create a regional body that represents neither the history nor the beliefs of the people in that part of England.
I undertake not to delay the House for long. We no doubt wish to hear from the noble Baroness.
I would find it helpful if the Minister could indicate, in the context of the debate that we have had, whether it is considered that the functions currently exercised by the RDAs would be transferable to any of the bodies listed in Clause 1(3)(b), (c), (d) or (e). It is not clear on the face of it whether that is the case. I have little doubt that under Clause 1(3)(b) a “person exercising public functions” might, in view of the interpretation clause, include the transference of the RDA functions, which are conferred under an enactment—that enactment presumably being the subordinate legislation that the Bill provides for. However, it is not quite so clear that the last three sub-categories—companies limited by guarantee, a community interest company or a body of trustees—are appropriate for this.
There is, incidentally, no reference to local authorities here. That is something else that we might wish to consider at a later stage on the Bill. I am seeking clarification to assist the debate when we come to the substantive question about the RDAs later.
My Lords, I also support the amendments tabled by my noble friend Lord Liddle. This brief debate has demonstrated the importance of this issue and how many questions are still to be answered about the transfer of powers, functions and assets. I humbly suggest to the Minister that, before we get to the substantive discussion on RDAs, it would be helpful if we could have some details about the transfer of the various functions and assets. That would help us all manage the debates in a more seemly fashion.
Everyone has declared where they come from. I come from the south-west, and one of the issues that we are pondering is how European funding is going to be distributed and by whom, who is going to be accountable and so on. I would be grateful if, among the information coming to us, the Minister could tell us about that.
This debate goes to the heart of localism. My noble friend Lord Liddle’s Amendment 16 goes right to the heart of that debate, and it is eminently sensible that the body that is going to be responsible for the functions is based in the regions and in as local an area as possible, precisely because people in London do not know the real needs of the regions, as the noble Lord, Lord Greaves, said. They do not know the employment potential or the real employment needs.
I would link these arguments to the Statement that we have just heard about the OBR and the importance of growth. I wonder how LEPs are going to fit in with whatever comes out of the Government’s White Paper on growth. As we know, the RDAs were a catalyst for growth and employment in the regions. RDAs are going and LEPs are coming in their place, so what can we expect of LEPs as catalysts for growth in the regions? How will the Bill interact with the White Paper?
My Lords, I support the noble Baroness in speaking for the south-west, although I do not regard her as being in the south-west at all. That is one of the problems of the south-west region. She rightly identified that certain parts of the south-west, such as Cornwall, have a different category status.
I had the responsibility at one time of proposing the abolition of the metropolitan county councils. There is a certain déjà vu about some of the arguments that are coming out in this debate. People at the time, for example, said that the councils were indispensable—mainly the people who served on them. With regard to the major cities, I remember going to Birmingham and being berated by both the Conservative and Labour leaders of Birmingham City Council about the uselessness of the West Midlands County Council. I noticed that, with the exception of the GLC, hardly anyone stayed up late to observe the funeral obsequies of the metropolitan country councils.
Amendment 16 is a very good idea. There are all sorts of good ideas that can be added to a Bill to complicate the issue. I do not know if he did it intentionally but the noble Lord, Lord Greaves, explained why it is not actually a very good idea, because the areas in question are all different when you are trying to lay down a particular requirement that applies to all the bodies that may now appear to take the place of the RDAs. London, the south-east and the south-west are quite different, while it is true that the north-east has problems of its own.
There is always a temptation—we have been in opposition ourselves—to add all sorts of amendments and requirements. Amendment 16 is a good idea and it would be a very silly Government who did not observe the points that it makes where it is sensible to do so. However, it is not inevitably bound to be the right thing to do. In this case I would not support Amendment 16; it may be the right thing to do in almost all cases but not in every one, and no further complications should be added to the Bill.
I thank the noble Lord, Lord Liddle, for moving this amendment, because it has led to a really interesting debate, and it gives the Government an opportunity to explore and explain further the details of the policy initiative which is represented by the abolition of RDAs and their replacement by local enterprise partnerships.
I start from the position of being a provincial. I am a fen-man. I come from an area that is rather overlooked by almost everybody. I live within five miles of the eastern region, but I happen to be in the east Midlands; it is an example of where regionalism tends to draw quite arbitrary lines. Sometimes those lines can be much harsher than when a lot of smaller bodies integrate within a jigsaw of interests. The noble Baroness, Lady Armstrong of Hill Top, and the noble Lord, Lord Beecham, talked about the north-east. It is not an area that I know well but I know it well enough to know that it is not a monolithic area; indeed, it is very different and the interests of Tyneside are different from those of Teesside, Wearside, the Durham coal-field and all those different integrated parts. It has been a problem and a challenge to Government to develop a policy that is going to provide proper, sustained economic growth in the regions of the country. The noble Baroness referred to initiatives going back 20 years or so; I can remember—I am young enough, or old enough, to remember—Harold Macmillan, and Quintin Hailsham with his flat hat on. I will not talk about recently departed individuals in the north-east, but it shows that it is a long-standing issue.
The great advantage of this debate is that it gives me, as my noble friends Lord Eccles and Lord King of Bridgwater have said, an opportunity to explain the Government’s policy. We could have had an afternoon’s debate on this sole subject, could we not? Probably we will. At least I can give an outline of the background, and I hope that will inform our debate yet to come.
I would like to set out the Government’s rationale for abolishing RDAs and encouraging the establishment of local enterprise partnerships. The Government’s economic ambition is to create a fairer and more balanced economy. We wish to see business opportunities in a broad range of sectors balanced across the country and between businesses. Our local growth White Paper, which was published in October, sets out how we will put businesses and local communities in charge of their own futures, rather than having to rely on centrally imposed RDAs. We are encouraging businesses, local authorities—noble Lords questioned where local authorities fitted into this pattern—and their partners to develop local enterprise partnerships, based on real economic areas such as Greater Manchester. My noble friend Lord Greaves mentioned the slight unease he sometimes had in the north-west at the dominance of the big conurbations of Manchester and Merseyside, for example. Rather than these artificial, created regions—
My Lords, I hesitate to intervene; however, one of the points I am simply trying to make is that the architecture in the north-east was not imposed from the centre. It was something that came up within the region at the time, and had enormous support and continues to have that support.
The Government are hoping that their proposals for local enterprise partnerships will be equally supported. Indeed, I hope through debate to be able to show the opportunities that exist; the thrust of the policy is exactly what I am sure the noble Baroness would seek to achieve also.
New partnerships are based on where people actually live and work. Businesses and civic leaders will work together to drive sustainable economic growth and create the conditions for private sector job growth in their communities; that is exactly the scenario that I hope the noble Baroness would agree to. The partnerships will be developed from the bottom up, rather than the top down.
My Lords, I find this argument really quite strange. The LEPs are being dictated. That is the only thing that we are being offered, even though the Secretary of State said in one of his first statements on this, when he was newly appointed, that he saw the rationale for the north-east to retain a RDA. Indeed at the beginning of June, after the election, he appointed the new chair and it was only two or three weeks later that he then decided, no, he was going to impose a different structure. What the Government are saying may be true for the rest of the country—it is for others to argue that—but it really is not true for the north-east. I am trying to get the Minister to understand that very different positions come from the north-east, and that somehow, if the Government are looking for bottom-up proposals, they are going to have to accept that and go back to the drawing-board on the north-east.
I do not believe that that is the case, and having listened to my noble friend Lord Eccles talk about his experience in the north-east, I do not think that the Government have got this wrong. The north-east will discover that local enterprise partnerships will provide a vehicle that links with existing local councils, local communities and local businesses in a way that the RDAs never achieved. They will be a much more powerful driver for economic growth. I must argue that because that is the position that the Government take.
The arrangements at the moment for local enterprise partnerships require the complementary co-operation of local businesses as well as local authorities. In other words, we are looking slightly beyond just local authorities, although local authorities will be channels for government funding where it is considered to be appropriate. Local enterprise partnership structure is a combination of local authorities and the business community.
I have sometimes seen criticism that the Government have not been clear enough about how they want these partnerships to be organised and what they want them to deliver. This is quite deliberate because we have set out a number of key criteria. The partnerships need to have support from businesses and local authorities, they need to be based on real economic geography, and they need to offer real added value and ambition. Beyond this, it is for the partnership to decide how it will be structured and the policy areas it will cover. We work on the clear basis that local people know best what their needs are.
We acknowledge that the RDAs have done good work during their existence. I am full of praise for the high-quality people who have worked for RDAs and have supported them. Noble Lords will no doubt point to examples when we discuss each RDA at a later stage. However, since they were created in 1999, the RDAs have had a combined budget of more than £21 billion. Despite this, they have not succeeded in their primary aim of narrowing the gap in economic performance between the three regions in the greater south-east and those in the rest of England. It is necessary to take a new approach if we are to achieve growth throughout the country. The Local Growth White Paper also announced a regional growth fund worth £1.4 billion over three years. Businesses and communities, including those working through local enterprise partnerships, will be able to bid for money from this fund. Its aim is to support projects and programmes that have the potential to stimulate growth and, in particular, to help those areas that are currently dependent on the public sector to achieve private sector-led growth.
I am not in a position to comment in detail on the noble Lord’s figures. That is a matter for discussions elsewhere. All I know is that the focus of the regional growth fund will be, as I just said, on those areas where communities have become particularly dependent on the public sector for employment and where private sector-led growth offers an opportunity for future development in those parts of the country. The fund will support the best proposals that come forward, wherever they come from and whether they come from private enterprise or the local enterprise partnerships. It will complement the other measures that the Government are taking to support growth through investment, education and skills, improvements in competition and research and innovation.
I turn now to the noble Lord’s specific amendments. While Amendment 12 is designed to achieve the practical and sensible aim of allowing transfers of functions from bodies appearing in Schedule 1 to the Bill to local enterprise partnerships, we do not believe it is necessary. As I have said, in inviting businesses, local authorities and their partners to establish LEPs, Ministers chose to allow them the maximum level of flexibility. This extends to the type of partnership arrangements that they should put in place, which will be a matter for the partners themselves. Because of this, the Government do not intend to give local enterprise partnerships a statutory definition in the localism Bill or elsewhere. In other words, there will be no uniform model for local enterprise partnerships; they will be unique to the location in which they operate.
With this in mind, the Bill is deliberately drafted to allow transfer of functions and assets to local enterprise partnerships, whatever legal form the partners choose to give them. Clause 1(3) defines an “eligible person” in a very wide way, including companies limited by guarantee and community interest companies. We expect many local enterprise partnerships will take these forms. In addition, in the case of transfers from the RDAs, Note 2 to Schedule 1 allows transfers to any body corporate. Therefore, the Bill as currently drafted already allows transfers to local economic partnerships in whatever form the partners choose to give them. There have been questions about what will happen to RDA assets. This was all set out in the Local Growth White Paper. RDA assets and liabilities will be disposed of or transferred in line with a clear set of shared principles, which include aiming for the best possible outcome for the region, consistent with achieving value for the public purse.
Amendments 8 and 16 have the potential seriously to hamper realisation of the vision set out in the Government’s Local Growth White Paper. As I have said, we have asked local enterprise partnerships to respond to real economic geography. In some cases, for example the south Midlands—which noble Lords might well be aware of—Sheffield and Coast to Capital partnerships, they cross the old regional boundaries. We expect this trend to develop as more partnerships come forward or new partners become involved. These amendments would reimpose these artificial regional boundaries, which we sought to avoid. I gave an example from my personal experience of how difficult these artificial boundaries can sometimes be. In doing so, the amendments would remove the flexibility that lies at the heart of our policy.
There are also examples of activities and assets that were developed with RDA money and are situated in particular regions, but which have national significance. For example, the wave hub in the south-west, by demonstrating the potential of new forms of power generation, brings benefits to the country as a whole. I know that the noble Lord, Lord Hunt, will be mindful of that, given his previous role as Minister for Energy. Although no final decisions have been taken on transfer of particular functions, it is not likely to be practical for major national projects of this kind to be run and financed by any local enterprise partnership that happens to be nearby. There will be exceptions that are designed to protect the interests of these enterprises of national significance. Nor do we intend to maintain organisations at regional level just to run such enterprises. Our policy will remain flexible and we intend to take account of the evolving capabilities and priorities of different enterprise partnerships. However, it is unlikely that they will all be in a position to take on the full range of functions when RDAs are abolished.
I will go through some notes. Yes, the local authority is an eligible person. I was asked that question expressly. In the north-east, the Secretary of State for Business said that he could see a case for a regional-level organisation of some kind but not for keeping the RDA as it was. I suggest that the noble Baroness has to marshal her arguments if she feels that there is a need for some regional co-ordination of the local enterprise partnerships in the north-east. I think I have covered more or less everything that was mentioned in debate. I hope the noble Lord will withdraw his amendment and I look forward to debating these matters further. In response to a request, I will try to arrange for noble Lords to have a briefing that covers this policy, so that it will inform our later debates.
My Lords, I thank the Minister for his last point on arranging a briefing for us. Some of us are still mystified. Personally, I am mystified as to why, if local enterprise partnerships are such a good thing, they cannot be included in the Bill. That seems to be a contradiction in terms.
The more important point is about the transfer of functions from the RDA. I hope that the Government will seriously think about this again. What I heard from the Minister was that there is an intention to centralise quite a lot of these functions. There is an intention that it will be top-down and that the growth fund will decide which projects will go ahead. When I have read Government policy statements, it seems to me that, on areas such as innovation, the marketing of the region and skills, it is intended that these functions will be conducted at national level.
I will not detain the House any longer on this tonight. I hope that we will have the opportunity to come back to it. I look forward to the briefing that the Minister has promised and, on that basis, I beg leave to withdraw the amendment.
Amendment 8 withdrawn.
Amendments 9 to 14 not moved.
Amendment 15 had been withdrawn from the Marshalled List.
Amendments 16 and 16A not moved.
Clause 1, as amended, agreed.
Schedule 1 : Power to Abolish: Bodies and Offices
17: Schedule 1, page 16, line 4, leave out “Administrative Justice and Tribunals Council.”
My Lords, we now come to the long list of bodies, listed alphabetically, that are scheduled in Schedule 1 for abolition. The council to which the amendment refers was only recently created by the Tribunal, Courts and Enforcement Act 2007. It is an advisory non-departmental public body sponsored by the Ministry of Justice. Its main functions are to keep the administrative justice system under review, indicate how the system might be made more accessible, more fair and more efficient and make any proposals needed for desirable change. It is a successor body to the Council on Tribunals set up in 1958 on the recommendation of the Franks committee. Sir Oliver Franks—later Lord Franks—was the chairman. It was called the Committee on Tribunals and Inquiries—an eminent body—to which I recall giving evidence, with others, from the Society of Labour Lawyers in 1957. The later Leggatt report of 2001, chaired by Lord Justice Leggatt, proposed not abolition—as this Government have—but to advocate a wider remit for the Council on Tribunals to focus particularly on the needs of users—or consumers, if you like—across the whole administrative justice landscape.
Those noble Lords who were here for the first Committee sitting may recall that the noble and learned Lord, Lord Woolf, intervened and made the point that the Council on Tribunals had,
“played a significant part in the development of administrative principles of good practice”.—[Official Report, 23/11/10; col. 1023.]
The noble and learned Lord went on to mention a number of areas, including welfare, fiscal disputes and many other kinds of disputes, which over the years have been dealt with by tribunals of all kinds. They have become famous for their work and have taken a greater and greater part of judicial work than ever before.
Following our Second Reading debate on 9 November, in which I queried the inclusion of the Administrative Justice and Tribunals Council in Schedule 1, the Minister helpfully wrote to me a letter, dated 16 November, that was also placed in the House of Lords Library. In this letter the Minister agreed with me that the council and its predecessor body, the Council on Tribunals, had done a useful job, but went on to say that oversight of administrative justice policy was now a function of the Ministry of Justice. A body like this council—or the council as extended by the 2007 Act—should continue to exist only if it was “needed to provide impartial advice”.
The purpose of bringing forth this amendment is to remove this council from the list of potential bodies to be abolished. My contention is that this body is still needed to provide impartial advice. The council and, for five decades, its predecessor, the Council on Tribunals, invariably consisted of judges, practitioners, academics and others from various backgrounds, acting, of course—because this is the only basis on which they would belong to such a council—on a part-time basis. The Government and the relevant department—the Lord Chancellor’s Department, later the Ministry of Justice—had the benefit of a number of people with knowledge of the workings of tribunals, which could go to the work of the Council on Tribunals, be published in its specific reports and its regular annual reports. Although I express an interest as a former academic, the academics who were appointed to the Council on Tribunals often had knowledge of foreign systems of law that helped to feed into and inform the discussions of the Council.
Full-time civil servants within the Ministry of Justice have their value and place. They are important people. I certainly do not wish to denigrate them. However, full-time civil servants cannot replicate the breadth of knowledge and empirical experience that is so useful when an advisory body like this is called in to assist. I believe its abolition would be a serious loss. I beg to move.
My Lords, I rise now not to trample on the noble and learned Lord, Lord Lloyd, whose name is the second listed in support of Amendment 17, but because he indicated that he would like me to speak before he does. I have already declared in earlier stages of the House’s proceedings that I have a really strong, though now historic, interest in this matter, as I was chair of the Council on Tribunals and then of the Administrative Justice and Tribunals Council for all but a month of 10 years—in other words, for, roughly speaking, one-fifth of its entire existence. I did not want to take the lead on the amendment because that might have looked odd against that background, but I am delighted that the noble Lord, Lord Borrie, has done so. For this purpose I regard him as my noble friend not least because, during the passage of the Tribunals, Courts and Enforcement Bill, it turned out that we had a remarkable number of things on which we saw eye to eye. I am very happy to support him.
I was going to give—the noble Lord, Lord Borrie, has done this for me, so I need not give it again—a sort of potted history of the origin of the Administrative Justice and Tribunals Council, the Leggatt report, the part that the council has played in the creation of the proposed integrated courts and tribunals service and the contribution that I, like the noble and learned Lord, Lord Woolf, feel that the council has made. However, the odd thing—which the noble Lord, Lord Borrie, did not mention—is that the Franks report had its origin in something that happened in the mid-1950s, which one or two in the House may remember, in an incident called Crichel Down. The Crichel Down affair was thought to be a scandalous abuse of executive power that led to such great concerns that it was in effect the origin of the Council on Tribunals and of much that has happened in the intervening period. Indeed, that incident constitutes one of the few instances since the war in which there was a principled ministerial resignation following something that had happened in a minister’s department. The Government may contend that there is no longer any risk of any kind of abuse of executive power in the dealings between citizen and state. The situation may be better than it was—I am glad that the Chief Whip is not present to hear this possibly tendentious remark—but I do not think that we would be discussing the Bill today if there was no risk of abuse of executive power. I do not believe that the need for safeguards has disappeared.
We are discussing not an ephemeral body that was set up on a transient whim but a council that has been a consistent part of the scene—and generally valued as part of the scene—for some 50 years. As the noble Lord, Lord Borrie, has said, the council’s powers were extended and its remit widened by Parliament only three years ago, with general support, as far as I can recall, and not a hint of opposition from any quarter in this House. However, now the council is included in Schedule 1 to the Bill. The remarks of the noble and learned Lord, Lord Woolf, have already been referred to, so I will not repeat them, but I will seek to build on what has been said about the council’s importance. The volumes of possible cases—not actual cases—between citizen and state include: 6 million benefit claimants; 2.5 million applications for visas; more than 25,000 applications for asylum; more than 220,000 pupils with statements of special educational needs; nearly 60,000 applications to the Criminal Injuries Compensation Authority; and nearly 25,000 complaints resolved by the Parliamentary and Health Service Ombudsman. What we are talking about is administrative justice in all those areas—involving tribunals, ombudsmen and the like—between the citizen and the state. In reality, the council is probably more important to most citizens than the courts, though with nothing like as high a profile.
Let me give the House the success rates in the appeals over which the Administrative Justice and Tribunals Council has had some kind of oversight function or watchdog—although I never used that word—role. Its success rates are as follows: for criminal injuries compensation, 43 per cent; for social security, 41 per cent; for immigration and asylum, nearly 40 per cent; for education admission appeals, more than 30 per cent; for education exclusion appeals, a quarter; and for the Care Standards Tribunal, 25 per cent. This is not an insignificant corner of the judicial system.
The great schedule of quangos to be abolished was published on 14 October, but most of those were simply declared subsequently not to be quangos and disappeared—a marvellous piece of smoke and mirrors—although there are still about 500 left. In the original list, the Ministry of Justice included three justice councils—the Administrative Justice and Tribunals Council, the Family Justice Council and the Civil Justice Council—and four procedure rule committees. For some reason, one of those three councils has landed up in Schedule 1, whereas the other two are in Schedule 7. All four procedure rule committees—civil, criminal, family and tribunals—are in Schedule 7. All of those—the two other justice councils and the four procedure rule committees—are said to be retained because they perform a technical function that should be independent of government. The odd one out is the Administrative Justice and Tribunals Council, which operates in this crucial area of justice between citizen and state. The document just said, “Abolish—no longer needed”. It did not say why; it just said that, to use a phrase that I used a week or so ago, the AJTC is for the chop.
That decision is all the more difficult to understand when you compare the terms of reference of the Administrative Justice and Tribunals Council with those of the Civil Justice Council. I shall not read out those terms, as they have been rehearsed briefly by the noble Lord, Lord Borrie, but you could hardly get a piece of tissue paper between them except for some odd bits of drafting. As the noble Lord has rehearsed, the terms of reference of the Administrative Justice and Tribunals Council require the council to look across the scene as a whole and at the needs of users. That seems to me, if anything, to be not less but more relevant in a world of staffing cutbacks, attempted cutbacks in legal aid and the desire to promote alternative dispute resolution as a more efficient way forward. Such objectives are supposed to be advanced by the council, which the Bill proposes to eliminate.
I do not want to say too much more, but I will ask a number of questions. Whatever the reason for the proposal—we have not been given a serious reason—the one thing that it cannot be is the coalition’s rhetoric about taking decisions back from bodies outside government, or at arm’s length, into government itself. I ask the Minister a rhetorical question: at the end of the debate, will he give me a list of the decisions that the Administrative Justice and Tribunals Council takes, or could take, that should be taken by the Government? This is not going to trouble him very much. If he likes, I will give him a blank sheet of paper now, and he can give me a blank sheet of paper back as the answer because there are no such decisions.
I will also pose some questions that are not at all rhetorical. The noble Lord, Lord Borrie, indicated that the Minister had said that there was some kind of oversight role of the administrative justice system in the Ministry of Justice. Unless things have changed much more dramatically in the past year or so than I have caught up with, there is no serious centre of responsibility for administrative justice in the Government. The Ministry of Justice is responsible for the Tribunals Service. This may have changed in the past year, but I think that I am right in saying that the Cabinet Office is responsible for ombudsman policy. However, individual departments often go down their own curious track in respect of ombudsmen. That was illustrated during the passage of the Tribunals, Courts and Enforcement Bill, when the Department for Transport or the Department of Energy—I forget which—argued for competing ombudsmen. The competition was between suppliers of services choosing which ombudsmen they wanted rather than consumers choosing which ombudsmen they wanted—a daft policy, if ever there was one. Therefore, ombudsmen do not seem to be controlled within a principled framework. If I am right in saying that the Cabinet Office is responsible for this matter, the Ministry of Justice is obviously not responsible.
The responsibility for education admissions and exclusion appeals lies essentially with education departments and local authorities. Policy on parking fines is in the hands of the Department for Transport. Each department is responsible for its own standards of complaints handling, review and all the rest of it. This is diffused across government. In reality, that has to be the case, especially for complaints handling and reviews. It seems to me that a body that can look from outside the immediate confines of government across the field is at least as much needed in this area as in any other.
Let me ask a further few questions before I conclude what I had not intended to be so long a speech. Is it the Government’s view that there is no longer a need for this body, or anything like it? If so, why? If not, how will the role and purpose be performed in future, and by whom? Bearing in mind that the structure of the AJTC included a Scottish committee and a newly created Welsh committee, I want to ask whether the devolved Administrations were consulted before the AJTC appeared in Schedule 1. If so, did they agree? What will happen if Scotland or Wales, or both. wishes to maintain the AJTC committees that they currently have?
There are dozens more questions to be asked, but I will not go on any further. I am not expecting immediate answers from the Minister, and I certainly do not want answers hastily concocted by his excellent officials on the basis of briefing provided by departments to which they do not belong. I am not saying that there is no case for any kind of change or movement. There could well be some scope for rationalisation. Rather curiously, since I do not much like Schedule 7, I would be far happier if the AJTC was in Schedule 7 rather than in Schedule 1, so that at least the Government would have some time to give proper thought to it and come forward with some serious proposals. If the Minister says that all these questions will be answered when an order is made under Schedule 1, I have to say to him that, in my view, we should have both the rationale and the answers to these questions before—not after—his colleagues are given powers to abolish such a body by not much more than the stroke of an administrative pen. I look forward to his comments on these and other points.
My Lords, I, too, support this amendment, and I am very glad to follow the noble Lord, Lord Newton, with all his lengthy experience of how the council actually works and how much good it has done over the past 10 years and, indeed, for far longer. I add something only because I was much involved when the Tribunals, Courts and Enforcement Bill was going through the House in 2007. I thought it might be of interest to the Committee to look again at what Sir Andrew Leggatt said in 2001 about the old Council on Tribunals, since it was on his report that the 2007 Act was based. It does not seem to have occurred to Sir Andrew Leggatt that the council would cease to be of any utility once the new system had come into operation—quite the contrary. Briefly, he said in his overview:
that is, this council—
“should act as the hub of the wheel that is the Tribunals System. Its functions should include taking evidence from user groups, from the Tribunals Service, from the departments, and from the Judicial Studies Board about how well the system is working. This oversight”—
note the word “oversight”—
“should be in addition to, not instead of, the direct relationship that will exist between the participants in the tribunal process”.
A little later he says:
that now would include the Ministry of Justice—
“should be under a duty to consult the Council on primary (in addition to secondary) legislation, and it should be given specific … authority to comment on it”.
Those were Sir Andrew’s views, and they were, of course, adopted by Parliament in the 2007 Act. Section 44 sets up the new council, and it is included under the following chapter heading:
again, note the word—
“of Administrative Justice System, Tribunals and Inquiries”.
In the schedule, its functions are described as follows:
“The Council is to … keep the administrative justice system under review”.
The schedule goes on to say that,
“‘the administrative justice system’ means the overall system by which decisions of an administrative or executive nature are made in relation to particular persons”.
It really could not be clearer than that.
As the Committee will know, under the new regime the council’s remit is far wider than it was under the old system. The administrative court, again as the Committee will know, is the heart of the modern civil justice system. It is there that the crucial decisions are made that affect the rights of individual citizens. The reason is, of course, that it is in the administrative court that the individual citizen can challenge Ministers’ decisions by way of judicial review.
The court, as I know, is concerned day in and day out with ministerial powers—for example, under the Terrorism Act, in immigration cases, or in the score of other ways in which ministerial decisions affect individuals. It follows that, of all the bodies named in Schedule 1, the council is the one that is most directly involved in,
“establishing facts in relation to, or oversight or scrutiny of, Ministers’ actions”.
Those words appear in paragraph (b) of Amendment 108, which the Minister put before the Committee.
To give an example, we all remember the time, some years ago now, when Ministers attempted to exclude judicial review from immigration cases. The attempt did not succeed. Next time it will not be so obvious, but the danger is still there. Immigration is surely an area which the council should continue to keep under review as part of the overall administrative justice system. It is surely an area in which it can still offer impartial advice to the Government.
It is no good saying that the work of the council can be done just as well by civil servants in the Ministry of Justice; it cannot. Of course civil servants are impartial; no one questions that. Nevertheless, they lack the “professional or specialist expertise”— again, I quote the Minister’s own amendment—that the council can offer. This council happens to fall within both paragraph (a) and paragraph (b) of the Minister’s own amendment, which should in itself be enough to take this council right outside Schedule 1. The trouble is that that is not enough under the Bill. The Minister has only to consider paragraphs (a) and (b) of his own amendment, which no doubt he would do anyway, so that the great safeguard that is said to be offered by the amendment is, in my submission, very largely illusory.
It may be said that all these matters can be put right at the end of the day when the draft order is laid before the House. Amendment 118 is no better than Amendment 108. The Minister need only “have regard” to recommendations made at that stage. The noble Lord, Lord Taylor, made it very clear last week that he was totally opposed to anything in the nature of a veto being imposed at that stage. So what can we do? Our only chance, as I understand it—and as I think the Minister confirmed—is to remove the council from Schedule 1 by voting to do so now.
That brings me to my last point. It will take a long time to go through all the bodies in Schedule 1, let alone those in Schedules 2 to 7, if we take them one by one on the Floor of the House in Committee. Is there not, even now, something to be said, before we get completely bogged down in the process, for deferring the rest of Committee and committing the Bill to a Select Committee, as we can do and as the noble Lord, Lord Hunt, proposed at the end of Second Reading? This seemed an extremely sensible suggestion. It worked in the case of the Constitutional Reform Act 2005, as everyone accepts, and it would work again here. This is just the sort of Bill for which the detailed consideration that is possible in a Select Committee is most appropriate.
Once we are in Select Committee—I know how it works from past experience—one is amazed by how quickly things go. The Minister would soon see that certain bodies in Schedule 1 clearly must be excluded. The rest of us would equally soon see that certain bodies in the schedule clearly ought to be abolished. The whole thing would be much simpler and quicker. It would take perhaps three or four months at most, as it did last time, but in the end a great deal of time would be saved because we would not have to go through each of these bodies and take a vote, which is the only course open to us now. I very much hope that the noble Lord, who has been so reasonable throughout, will consider again the possibility of opting for a Select Committee. I know that there was a vote against this, but it would still be possible—and, I suggest, very desirable—to reverse that vote.
My Lords, I am the final person who has their name down in support of the amendment, and I support all the points made so far by noble Lords on all sides of the House. I confess that when my noble friend the Minister first presented this set of propositions upstairs to a collection of us from all sides of the House, I was reckless enough to describe the prospect as a potential tsunami of constitutional vandalism. That phrase struck me because of the structure of the Bill, which has since been criticised by the Constitution Committee. However, the more I have heard about the way in which my noble friend has been handling the Bill and responding to debate in this House, the more I am convinced that that is certainly nowhere near his intention, nor near the intention of the Government.
The Government may have been misled in the definition of their objective by the rationale set out by the Minister for the Cabinet Office, Francis Maude. He said that the Government should not leave this to people or bodies that were unelected and allowed to remain when their mission had long been accomplished. This is the approach: to see what may have outlived its usefulness. A Cabinet Office press release of 14 October this year states that,
“the Government’s presumption is that state activity, if needed at all, should be undertaken by bodies that are democratically accountable at either national or local level”.
No one could quarrel with that. However, the power is often exercised by Ministers and civil servants—no doubt most of the time in good faith—and it ignores the necessity of having an independent, external review. That is why the structure of this law—recounted in full by the noble Lord, Lord Borrie, and the noble and learned Lord, Lord Lloyd, rests on history. The noble Lord, Lord Borrie, recollected the Society of Labour Lawyers in the 1950s, and I recollect similar activity in what was then the Inns of Court Conservative and Unionist Society. We pressed for change under the leadership of people such as Lord Gardiner and Lord Simon of Glaisdale, seeking to promote the case that was scrutinised by Lord Franks and that led us, as has already been recounted, to the Tribunals and Inquiries Act 1958. The remarkable thing is that that has been the foundation for further review and reform. Noble Lords have already gone through that and brought us up to date with the Inquiries Act 2005 and the Tribunals, Courts and Enforcement Act 2007.
Perhaps I may add an anecdote of my own. It was my good fortune, while practising the profession that I have long since forgotten but of which I am still proud, that after representing Coal Board officials at the Aberfan inquiry, I was appointed to conduct an inquiry into misbehaviour at Ely Hospital, Cardiff. It was an ad hoc inquiry of the kind that has been repeated in many cases since. It was also an illustration of the way in which administration can go wrong. Throughout the operation of the inquiry, we struggled to secure our independence. In the first instance, we were not allowed to announce our existence, but we pressed for that to happen in order to appeal for outside witnesses. We were told that we could not have sufficient legal representation within the organisation. When we submitted our first report, we were told that we were going beyond our requirements by exceeding the mere description of facts and by daring to venture recommendations, and so on. My colleagues and I wrote two reports, one of which included the recommendations and one that did not. Happily, we were able to make sure that the then Secretary of State, Richard Crossman, who had a special adviser who had been a colleague of mine at Cambridge, knew of the existence of the two drafts and immediately authorised publication of the full draft. This decision was acclaimed later in a biography by Anthony Howard as one of his most courageous acts.
The point of the anecdote is to illustrate the extent to which conduct within a democratically elected institute can be less than perfect. That is why we have the structures that the noble and learned Lord, Lord Lloyd, went through so carefully—the outside tribunals and bodies to which appeals can be taken. The Tribunals and Inquiries Act was replaced to some degree by the Tribunals, Courts and Enforcement Act 2007—after the preceding body had been in existence for 50 years. Its position was enhanced and its structure detailed in Schedule 7 of the Act, which covered some 11 pages. Therefore, we have a body that has been well established for a specific purpose: to oversee areas that might otherwise be left entirely to elected bodies and people appearing before them. It would be wholly indefensible to remove this body from the existing structure of our balance between administration, law and politics.
Indeed, I am worried on a broader basis, not just on this issue, by the extent to which the bodies and agencies listed in Schedule 1 have had their self-confidence eroded by the prospect of dismissal or disappearance. This cannot be a good state of affairs. I dare say that a number of other noble Lords have received a letter in the past few days from the National Council for Independent Monitoring Boards, meaning the national council for prison councils, drawing attention to the fact that those bodies, which are now uncertain about their continued existence, engage the activity of 1,800 members who work without remuneration, represent the public and conduct the kind of function that tends to be conducted by independent organisations outside the administration.
The sad thing is that a frisson of anxiety is going through society, which the Prime Minister rightly wants to amplify as “great society”. Somehow, we are creating a pattern of anxiety among the very great society that has played such a useful part and that will continue to do so. The point has been made by all who have spoken on this amendment on this particular body. It certainly deserves serious consideration by the Minister.
I follow the last, and important, point made by the noble and learned Lord, Lord Lloyd. Is this really going to be the way forward—examining each one of the agencies listed in the schedule? Is there not something fundamentally awkward about handing all these things over to the Administration in one form or another? It is even more ironic that the Prime Minister should be considering the possibility of an opinion poll of happiness in society when this Bill is creating such a widespread degree of unhappiness in the agencies affected by this proposition. It is also unfortunate that the final decisions that are to be taken are not capable of being scrutinised to the extent that we should wish by this Parliament, including the democratically elected body, for the reasons criticised by the Constitution Committee of this House. It would be ironic if this Parliament’s appraisal of this legislation was itself inhibited when the legislation was capable of undoing virtuous institutions built up very thoughtfully over half a century or more.
I hope my noble friend the Minister will understand our proposition, not just for the removal of this institution from the schedule but for much more fundamental scrutiny of the way in which these still rather alarming propositions are being presented to the country.
My Lords, I add my support to this amendment and agree with all that has been said. There is a further reason why it is so essential that we retain an independent and impartial body to review the performance of tribunals; so many of the decisions of these tribunals concern the implementation of government policy, and it is government departments that are the defendants in those tribunal proceedings.
It is undoubtedly a fact today that a far greater proportion of legal rights are vindicated in tribunals than in 1958 when the Council on Tribunals was established. It will be the inevitable consequence of the reductions in legal aid that those trends are exacerbated. It is therefore even more important today than it was in 1958 that there be an independent and impartial body that supervises and assesses the performance of these judicial functions.
My Lords, it is with mixed feelings that I rise to speak about the Administrative Justice and Tribunals Council and add my voice to all of those who are urging the Minister to think again in relation to this council. What has been said by my noble friend Lord Borrie, what has been said so eloquently by the noble Lord, Lord Newton, and by the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, supported by the noble Lord, Lord Pannick, is not only correct but I hope the Minister will take comfort from the fact that he could not have been shot at by more accurate huntsmen. If he is feeling that he has been holed beneath the water, he should draw comfort from the fact that the whole House has done it and not just those noble Lords who sit behind him.
I have pleasure in rising because I am pleased to add my voice to those others. There is also, however, concern and a little sadness that I am driven to speak at all, prompted by the Government’s as yet unsubstantiated case for abolishing the council. It is sad to see the council head the list for abolition under Schedule 1.
This House will remember the debate in 2007. The noble and learned Lord, Lord Lloyd, and others are right to say there was unanimity in this House about the necessity to keep the council, the sagacity of Sir Andrew Leggatt’s report and the rightness of supporting it. The Minister may recall that the late and much missed Lord Kingsland said in relation to the then Government’s proposal that they had got it absolutely right by following Sir Andrew’s arguments. He was talking about constitutionality. The noble and learned Lord, Lord Lloyd, was therefore right to quote what was said by Sir Andrew Leggatt and to endorse it.
I was also concerned, when looking at the Chairman’s foreword for the most recent annual report of the Administrative Justice and Tribunals Council, to read:
“However, as the text of this foreword was being finalised we learned that the AJTC is to be included among the MoJ sponsored Arms Length Bodies to be abolished through the Public Bodies Reform Bill, due to be introduced in Parliament in the autumn. Whilst recognising the absolute prerogative of Ministers and Parliament to take such a decision, the outcome is disappointing and it is unfortunate that we were not included in the discussions leading to this decision. However we look forward to contributing to the debate”.
The foreword points to the fact that this council in its various forms has done sterling work on behalf of individuals for the past 50 years and has throughout been applauded for its achievements. My concern is aggravated therefore by the quality of the process undertaken by the Government in making this choice. The annual report sets out all the reasons why the council should be retained. There are many around this House who feel that the inclusion of the council on the Schedule 1 list is extraordinary.
That feeling of unhappiness is exacerbated when one considers the millions of people who may be affected by the acts and omissions undertaken by various administrative bodies which have their roles scrutinised by tribunals with the council supporting them.
I, too, agree with the comments made by the noble and learned Lord, Lord Lloyd of Berwick, and echoed by the noble and learned Lord, Lord Howe, that if we are to go through the list organisation by organisation, entity by entity, it will take some considerable time if each body is to be given the scrutiny it deserves.
Your Lordships will know that if the council is to remain on the list, a great deal of unhappiness—not just in this House but for individuals who are adversely affected by that decision—will be occasioned. I should conclude with a view comments from Sir Andrew Leggatt himself, when talking about the Administrative Justice and Tribunals Council. He said:
“There should be one guiding principle. In origin, many tribunal functions started within the administrative process. Tribunals were established because it was clear that the citizen needed an independent means of challenging possible mistakes and illegalities which was faster, simpler and cheaper than recourse to the courts. Tribunals are an alternative to court, not administrative, processes. They will keep the confidence of users only in so far as they are seen to demonstrate similar qualities of independence and impartiality to the courts”.
His words go to the heart of why judicial and quasi-judicial bodies need additional protection, and is why I and many others support the amendment. Independence has to be established and has to be seen, felt, and tasted. If the council is removed, I add a question to those posed by the noble Lord, Lord Newton: how is that to be guaranteed if everything is invested in the department, which may be in need of challenge, assistance and advice?
I urge the Minister to say this evening that the council's name will be struck from the schedule. Then the House would not be put through the burden to vote and the noble Lord may have greater time to consider the other bodies which may or may not merit inclusion.
I thank the noble and learned Baroness for her contribution, and the noble Lord, Lord Borrie, for presenting the amendment. As all noble Lords have said, this is the first body to be debated—not because it is the most important but because of the way in which we have ordered our alphabet. I might have chosen a different one to start with, I might add, but I think that the whole House will understand that. I am grateful for the widespread and learned comments from various noble Lords around the House, including my noble friend Lord Newton and my noble and learned friend Lord Howe, whose experience I respect.
Perhaps I can put this decision into context and explain to the House the Government's thinking. I should start by saying that this body is not itself a tribunal. It is a council which has a role in advising on how tribunals might best function, but it is not a tribunal. That the amendment would remove the Administrative Justice and Tribunal's Council from the schedule is in many ways a tribute to the development of the Tribunal Service under the previous Government. As noble Lords will know, there has been a considerable expansion of the Tribunal Service, and it is to that Tribunal Service that the public has access. I quite agree that tribunals are a much better way of resolving matters of injustice in the vast majority of cases involving individual citizens.
The Administrative Justice and Tribunals Council is an advisory body. It was set up under the Tribunals, Courts and Enforcement Act 2007—as several noble Lords, including the noble Lord, Lord Borrie, mentioned—to advise the Lord Chancellor, the Ministers of the devolved Administrations in Scotland and Wales and the Senior President of Tribunals on administrative justice. That is its role. To be clear, the AJTC is not a judicial body. Its abolition would not have a direct impact on judicial independence or judicial decision-making.
I assure my noble friend Lord Newton that Ministers have been engaging with Ministers in the devolved Administrations and that assurances have been given that the Scottish and Welsh committees of the council can continue and will receive funding until the autumn of next year. The devolved Administrations will thereafter make further arrangements as necessary for their jurisdictions after the abolition of the council.
Does that mean that we will have the ultimate absurdity of the Government abolishing the Administrative Justice and Tribunals Council for England while the Scottish and Welsh Administrations decide that they need a similar body in Scotland and Wales? It gets dafter by the minute.
That is entirely up to the devolved authorities to determine. I make no apologies; there is logic behind that. The tribunal system in the devolved authorities has not undergone the same development as has been undergone in England. The specific development in England occurred during the previous Government, and that situation could continue, although I think that it is unlikely.
The noble Lord mentioned the devolved authorities—the noble Lord, Lord Newton, has already taken him up on one point—but he indicated what is likely to happen in Scotland and Wales. That can happen only if the devolved authorities themselves agree to the legislation. Is a legislative consent order already in place?
We have no reason to suppose that that will happen. We are talking to the devolved authorities about this whole business. Indeed, the Scottish Parliament has already passed its own public bodies review, which has been running for two years now, so it is not a strange thing for people involved in Scottish politics to come to terms with a Bill such as this.
To return to my remarks, one of the council's functions is to keep under review the constitution and working of tribunals. That function dates back to the AJTC’s predecessor body, the Council of Tribunals, which, as noble Lords have said, was established by the Tribunals and Inquiries Act 1958. That Act was the result of Sir Oliver Franks’s report on administrative tribunals and inquiries, which was published in 1957. The tribunals landscape has changed immensely since the late 1950s, and much of that change has been relatively recent. I hope that I have paid adequate tribute to the previous Government’s work in that regard. Sir Andrew Leggatt’s 2001 review, Tribunals for Users, calls for a more unified tribunal structure supported by an independent Tribunal Service. April 2006 saw the beginning of that. The Tribunal Service was set up to administer the tribunals within the Department for Constitutional Affairs. Then came the Tribunals, Courts and Enforcement Act, which received Royal Assent in 2007. The main effects of this legislation included the creation of a new, simplified statutory framework for tribunals to provide coherence and enable future reform and the unification of the tribunals’ judiciary under the Senior President of Tribunals.
It was envisaged that the AJTC, set up under the 2007 Act, would advise on the development of the Tribunals Service and be able to offer proposals for change. This the AJTC did, first under the very capable leadership of my noble friend Lord Newton and more recently under the chairmanship of Richard Thomas. It has played an important role in helping in the creation of the Tribunals Service and deserves proper recognition for this.
However, we have now moved from a structure in which tribunals were funded by the departments whose decisions they reviewed, which left appellants feeling they were always at an away match. We now have a unified Tribunals Service which is well established, supporting the majority of central government tribunals, and run by the Ministry of Justice. So I believe that the AJTC has served its purpose in helping to set up the unified service.
The review of public bodies that the Government have undertaken has resulted in agreement that remaining central government tribunals outside the Tribunals Service will either transfer in or will be considered for transfer in. In addition, the development of tribunals policy—
On that last point, I find it very difficult—perhaps the noble Lord could deal with this—to reconcile that argument with the fact that the tribunal is contained in the same act. There was no suggestion that the council was to come to an end when the Tribunals Service took effect—not in the slightest.
At that time that was certainly the case. I accept that. The 2007 Act did not do away with the council. The noble and learned Lord, with a slip of the tongue, said “tribunal”. It is not a tribunal; it is an advisory council. It is very important that noble Lords bear that in mind.
In addition, the development of tribunal policy and the development of governance arrangements for the Tribunals Service mean the AJTC’s review function is no longer needed. I concur with the noble Lord, Lord Borrie, that the input of the judiciary and academics is crucial to the improvement of services and policy development. I do not envisage that their involvement will cease with the abolition of the council. Officials will continue to seek their views as part of policy development in relation to tribunals and administrative justice reform.
The AJTC also has a role in keeping statutory inquiries under review. For any noble Lords present who are not familiar with the AJTC’s work, I should perhaps explain that this role does not include keeping under review public inquiries such as Dunblane or Shipman. The AJTC has focused mainly on inquiries relating to land use.
The Planning Inspectorate, which is an executive agency of the Department for Communities and Local Government, is responsible for the determination of planning and enforcement appeals and routinely holds statutory inquiries into a range of land use developments. The Planning Inspectorate has now established a robust quality assurance unit, operating across all functions of the inspectorate to ensure appropriate standards and procedures are upheld. The quality assurance unit can, if necessary, recommend changes in the inspectorate’s audit committee or the inspectorate’s main board. The inclusion of non-executive directors on the inspectorate’s board ensures external scrutiny. Therefore, the AJTC’s review function in relation to statutory inquiries is no longer required.
Of course, the AJTC was given broader statutory functions under the Tribunals, Courts and Enforcement Act 2007 than its predecessor body, the Council on Tribunals. These are to keep the administrative justice system under review; to consider ways to make the system accessible, fair and efficient; to advise on the development of the administrative justice system; and to put forward proposals for change and make proposals for research.
If the noble Lord, Lord Newton, suggests that one of the functions of the AJTC was to act as a curb on executive power, I have to say that this was not a function of the AJTC and perhaps I can clarify that by going back to the 2004 White Paper Transforming Public Services: Complaints, Redress and Tribunals. It proposed a widened remit for an Administrative Justice and Tribunals Council but it also envisaged that the then Department for Constitutional Affairs would,
“take the lead on co-ordinating redress policy across Government. Its task will be to facilitate development of more integrated and consistent dispute resolution systems for the benefit of the public. It will take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them (courts, tribunals, ombudsmen, independent complaints handlers, etc). It will propose ways of dealing with gaps, weaknesses and overlaps while drawing on the unique qualities and key strengths of the distinct elements of the current arrangements”.
That was the last Government’s proposal under the 2004 White Paper for the role of the Department for Constitutional Affairs. In recent times, priority has been given to reforms to the tribunals system but, as the Ministry of Justice has taken on what is properly its responsibility and a wider administrative justice capability is being developed, it will take the lead—
I am sorry to interrupt the Minister in full flow. I have listened very carefully to this. He has made much of the fact that the Ministry of Justice will take on a series of roles and functions that noble Lords seem to be mistaken in thinking that the advisory council would be performing. Can he give us some idea of how many people in the new, streamlined Ministry of Justice will be available to actually give this kind of support to the tribunals?
No, I cannot give that answer. The noble Lord correctly referred to the advisory council. We are talking about executive responsibility envisaged by the previous Government, vested in the Department for Constitutional Affairs and currently recognised by this Government as being vested in the Ministry of Justice. As I was saying, it will take the lead on the co-ordination redress of policy across government, facilitating development of more integrated and consistent dispute resolution systems. It will also take a systemic view across the various means of tackling disputes and the roles of the different organisations that provide them. By enhancing the policy function, the Ministry of Justice will be well placed to look across the entire administrative justice system.
The noble Lord, Lord Newton, is absolutely correct: the Cabinet Office is responsible for ombudsmen policy, including the Parliamentary Ombudsman. Each department is responsible for ombudsmen within each policy area on which it leads. However, administrative justice includes both tribunals and redress by ombudsmen and therefore the Ministry of Justice will take a systemic view across government, including ombudsman functions, as part of its role leading on administrative justice policy. For example, the Ministry of Justice recognises that administrative justice is an end-to-end process and that getting it right at the start of this process—that is, good-quality original decisions by the public bodies concerned—is vital. Getting it right first time benefits everyone concerned.
Of course, the departments and public bodies making the original decision have the primary responsibility to ensure high-quality decision-making. That said, the Tribunals Service has been actively working with the larger decision-making agencies whose appeals it deals with—for example, the Department for Work and Pensions and the UK Border Agency, and my noble friend Lord Newton referred to the very large number of cases that that can involve—to review end-to-end dispute resolution procedures and feedback arrangements. The Tribunals Service will continue to work with decision-makers to improve getting it right first time and will seek to spread lessons learnt among relevant decision-making bodies to drive up standards.
Going back to the AJTC’s functions concerned with keeping administrative justice under review, it is clear that advising on the development of the administrative justice system, putting forward proposals for change and making proposals for research are the proper functions of the ministry. But I recognise that noble Lords take the view that an independent body will take a different approach from a government department on what “keeping under review” means, especially if that body has said, as the AJTC says in its strategic plan, that its work is driven by the needs of users.
It behoves all public bodies involved in the administrative justice system to always keep the needs of the user at the heart of their system and service provision. However, the Ministry of Justice will continue to seek the views of users on the services it provides. The Tribunals Service already has a range of user groups at national and local levels, which bring together representatives of the public who use tribunal services, professional groups such as the Bar and the Law Society, and the judiciary and Administration to consider the operation of tribunal services.
With regard to the Administrative Justice and Tribunals Council’s functions which relate to the oversight and development of administrative justice, I believe that this is properly a core function of the Ministry of Justice and should not be duplicated elsewhere. The Government’s arm’s-length body review concluded that the Civil Justice Council performed a technical function and should be retained. I should remind the noble Lord that there is a substantive difference between the functions of the AJTC and the Civil Justice Council. Most significantly, the Civil Justice Council advises the Lord Chancellor on the development of the civil justice system and refers proposals to change to the Lord Chancellor and the civil procedure committee.
Finally, the AJTC and the Council on Tribunals have made a valuable contribution. It is not the Government’s intention that the work done so far should be wasted. I understand that there are continuing discussions between the present AJTC chairman and Ministry of Justice officials to identify the priority work to take forward. There is a changed landscape in the world of tribunals, which is largely a heritage of the previous Government. In the light of these explanations, I hope that the noble Lord will feel able to withdraw his amendment.
I am aware that the House wants to get on, but, before my noble friend concludes, perhaps I may make just three points. First, he referred to users. When I was chair, the Tribunals Service asked me, on behalf of the council, to chair the users’ groups for mental health and for war pensions on the grounds that the council could do it better than it could. I should like to know whether the Government know the view of the senior president of tribunals on this proposal. How will the position of a body such as the Down’s Syndrome Association, which has recently written to me—I have its letter here, but I will not read it, in which it raises concerns about the reduction in legal aid, to which the noble Lord, Lord Pannick, referred—be represented by the Ministry of Justice? It is complaining about the effect on tribunals, and the proposals on legal aid have come from another part of the same department under the same Secretary of State. How can that be the case?
There are a lot of other questions. I could say a lot more, but I am deeply depressed by the fact that my noble friend has not felt able to go further in terms of being willing to look at this. The Government should look at this again and should recognise the strength of feeling that is by no means confined to the opposition Benches, as is very clear. I hope that, even now, he will say that further consideration will be given to this, so that those of us who would like to reach a rational, considered, thought-through conclusion can at least have some chance of hope that that might happen.
I am sure that the proceedings of this House will be widely studied. I am certain that the Government want to take note of all that is said in the debates on this Bill. But I return to my previous comment to the noble Lord, Lord Borrie, and hope that he will withdraw his amendment.
My Lords, in this debate there has been not a single person who has given support in any way to the Minister’s propositions. Not a single person in this debate, which has gone on for an hour and a quarter, has done other than sit on their hands or support the amendment, which I am glad I put forward. It is normal for someone in my position, who is summing up and is to determine whether there should be a vote or not, to give some mention of his supporters. I have been most fortunate because support has come from the experienced noble Lord, Lord Newton, a former chairman of the council, from the noble and learned Lords, Lord Lloyd of Berwick and Lord Howe of Aberavon, my noble and learned friend Lady Scotland, and from the noble Lord, Lord Pannick.
The second thing that someone in my position normally does is say what a good debate we have had. But we have not had a good debate because the only propositions on the other side were from the Minister, who I am bound to say, on the same lines as the noble Lord, Lord Newton, was a great disappointment. He stuck closely to the brief, which clearly had been prepared long before this debate began. There is nothing necessarily wrong in doing that in part; but, surely, after all the points that have been made in favour of this amendment from all sides of the House, there could have been some give—some notion that, instead of just saying, “This body has outlived its usefulness; all its work can now be done by civil servants in the Ministry of Justice”, something positive could be given. Nothing was given. My view is that we should go to a vote on this amendment and I appeal to noble Lords from all sides of the House to support the view that this body should be removed from the list of bodies to be abolished in Schedule 1.
House resumed. Committee to begin again not before 9.22 pm.