Report (3rd Day)
Clause 8 : Matters to be considered
60A: Clause 8, page 4, line 7, leave out subsection (1) and insert—
“(1) A Minister may make an order under sections 1 to 5 only if the Minister considers that the order serves the purpose of improving the exercise of public functions, having regard to—(a) efficiency,(b) effectiveness,(c) economy, and(d) securing appropriate accountability to Ministers.”
My Lords, government Amendments 60A, 69A and 69B in this group are an important contribution to the Bill. They are designed to respond to the criticism of the Delegated Powers Committee that the Bill as drafted did not sufficiently define the purpose for which orders might be brought forward. In challenging the Government to provide such purpose, the committee sought a safeguard against the abuse of the powers that the Bill would grant to Ministers. I am happy to be able to respond to that challenge.
Amendment 60A establishes a purpose for the use of the main order-making powers of the Bill by amending Clause 8. If the amendment is accepted, Ministers will be able to make an order only if they consider that it,
“serves the purpose of improving the exercise of public functions”.
In making that assessment, a Minister would be required to have regard to the matters listed in paragraphs (a) to (d) of the amendment.
While I appreciate that the purpose as defined in Amendment 60A is relatively broad, I trust that noble Lords will appreciate why this is the case. During the numerous debates in Committee and on Report on the bodies listed in the Bill, the Government have demonstrated their intent to take forward a wide range of reforms. These include the cessation of unnecessary functions and bodies, the mergers of bodies to improve efficiency and the delivery of some functions outside the state sector, including through charities. What links these otherwise disparate reforms is the Government’s clear imperative to create a rationalised public bodies landscape in which necessary functions are delivered in an appropriate and effective manner. The purpose of Amendment 60A is to articulate this goal and to ensure that an order cannot be brought forward for a purpose outside the intended scope of the Bill as debated fully in Parliament.
Amendment 61ZA, tabled by my noble friend Lord Maclennan of Rogart, would require that Ministers could bring forward an order only if they were satisfied that it met one of the objectives in subsection (1). I am not able to support this amendment because, as I have described, there is a single overarching objective in that subsection. However, I can assure my noble friend that Ministers will be required to have regard to each of the matters listed in paragraphs (a) to (d) of the subsection when making an order.
Amendment 60B, tabled by my noble friend Lord Phillips of Sudbury, would remove efficiency from the list of matters to which a Minister must have regard when considering whether an order would meet the purpose specified in Amendment 60A. I understand the noble Lord’s argument that, in practice, efficiency and economy are closely linked. None the less, the Government envisage circumstances in which an order might increase efficiency in the exercise of functions while not producing a significant economy. For example, the merger of the Pensions Ombudsman and the ombudsman for the board of the Pension Protection Fund will not produce a significant cost saving, as the bodies already to all intents and purposes operate as a single entity. However, their formal merger in statute will support a more efficient public bodies landscape by streamlining the legislative basis for their retained functions.
Amendments 69A and 69B provide a mechanism through which the Government would be held accountable for meeting the requirement in Amendment 60A. They add a requirement to the procedure set out in Clause 11 that will require the Explanatory Note accompanying any order to explain why and how the Minister considers the order to meet the purpose described in Amendment 60A. I hope that these amendments will assist the committees of both Houses in considering whether the orders made under this Bill fit the criteria that the Bill now describes.
Amendment 60AB has been tabled by my noble friend Lord Newton of Braintree. I am afraid to say that my noble friend is not very well and cannot be with us today, but I hope that the House will excuse me if I address the issues that he raised because I am sure that he wants to know the Government’s reactions to his amendment. The amendment’s intentions are laudable and, as the noble Lord pointed out in Committee, at the heart of the coalition Government’s approach. The amendment would add fairness, openness, transparency and justice to the list of matters to be considered under Clause 8(1). I remain unable to support the amendment’s inclusion in the Bill simply because we believe that it would add an additional and, for the purpose of legislation, quite abstract evidential burden.
Put simply, we do not concede either that a Minister would not consider these issues in some form when deciding whether to make an order or that the consultation and procedural requirements that we have already built into the Bill will not ensure that Ministers are held to account in relation to the fairness, openness, transparency and justice of their proposals. Ministers will be required clearly to explicate the reasons for an order in the explanatory documents that will accompany it and Parliament will have ample opportunity to scrutinise these explanations. I do not, therefore, consider that the additional burden that the amendment would create would add value to the order-making process.
I make a similar argument in relation to Amendments 60AA and 60C in the name of the noble Baroness, Lady Hayter, each of which would direct Ministers to consider the existing functions and aims of a body affected by an order. As I stated on 23 March, the amendments that the Government have proposed to Clause 8 make it inconceivable for a Minister, when considering making an order, not to have considered the aims, objectives or functions of the body concerned, both whether they remain necessary and whether any improvement could be made in their delivery. The amendments proposed by the noble Baroness also do not appear to take account of the fact that an order could in itself alter the aims or objectives of a body or office.
Specifically, I am resistant to Amendment 60AA on the grounds that the Government envisage that the purpose of improving the exercise of public functions may require a broader interpretation. For example, an order might abolish a body or some or all of its functions on the grounds that the Government had decided that those functions were unnecessary as currently set out in statute. Alternatively, an order may form part of a broader policy in which related changes, such as the establishment of new bodies or functions, are taken forward in a separate piece of legislation but are dependent on the order for their implementation. In such circumstances, the noble Baroness’s wording would make it difficult for a Minister to demonstrate that the order itself improved the exercise of public functions, even though such an improvement would clearly be the intent of bringing forward the order. I assure the noble Baroness, however, that I acknowledge the thrust of her amendments and consider that our drafting of Clauses 8 and 11 ensures that the functions, aims and objectives of a body will receive due consideration.
Amendment 61A, in the name of my noble friend Lord Newton, would require that Ministers could make an order only if they considered that it would,
“not remove any necessary independence or objectivity in relation to the assessment of any public service”.
Again, I have no issue with the spirit of my noble friend’s amendment; the Government have been clear throughout the passage of the Bill that they do not intend to remove the necessary independence of those public functions that require it. However, I believe that the aim of this amendment is better addressed through Clause 16, which places specific restrictions on the power of Ministers to make orders that would have such an effect in relation to obligations imposed on a Minister. I also remind the House that under Clause 10(1)(f) a Minister is required to consult the Lord Chief Justice before making an order in relation to functions that relate to the administration of justice. I believe that that safeguard is pertinent to the intent of this amendment.
The government amendments in this group build on the improvements that we have already made to this Bill during its passage through the House. They clarify the purpose of the Bill’s delegation of powers and they provide a mechanism through which Ministers can be held to account for their actions in this regard. I beg to move.
Amendment 60AA (to Amendment 60A)
60AA: Clause 8, line 4, leave out “public functions” and insert “the public functions exercisable by the body, bodies or office to which the order relates”
My Lords, I start by paying tribute to the Minister, because this Bill has improved enormously since Second Reading. We have obviously lost Clause 11 and Schedule 7. I think that we might have achieved what my earlier amendments in Committee and on Report sought to achieve: namely, that in using these powers in the Bill the Minister should have regard to the purpose for which any bodies that are going to be abolished or changed were created in statute. I therefore very much welcome government Amendment 60A, which lays out that powers may be used only,
“if the Minister considers that the order serves the purpose of improving the exercise of public functions”.
However, perhaps there should be a couple more tweaks. Amendment 60AA, the first of the two amendments in my name, might appear to be about drafting, but its intention is to make it clear that the “public functions” that are to be improved should relate to the bodies that are going to be covered in those orders. That might be the case, but I seek a little more assurance about what is in the Bill, otherwise it is not clear; it could mean any “public functions” of a government or anything else. I think the purpose is meant to be the purpose of the bodies that are being merged or amended or whose funding is being changed.
Amendment 60C would require the Minister to have regard to,
“the aims and objectives of the body where these are specified in legislation”.
I have reiterated a number of times that I do not believe that every body must exist for all times in the same form. In the words of the legal draftsmen, I think it concerns “having regard to” rather than being an essential part of what the Government are doing. Will the Minister therefore confirm whether what I regard as the objective of “having regard to” really is covered by the words “public function”? I shall give a couple of illustrations, to which perhaps the Minister could respond. First, something of the overall purpose of a body—for example, the Marine Management Organisation—could, if it is not considered properly or given regard to, be undermined by a change in funding. The Minister will be pleased to know that I have no complaints about it being in Schedule 4, but unless my Amendment 60A is accepted it would seem to be quite legitimate for its funding to be taken over by, for example, an oil company that was intent on deep-water drilling, since the Minister would not be required to consider the wider objectives of that body. Provided there had been consultation, the Minister could do what he will without regard to the original purpose and objectives for which that body was created.
Secondly, Consumer Focus has statutory powers to demand information across all sectors of the economy. Is that a public function? If not, again there is nothing in the Bill to ensure that those statutory powers remain. Thirdly, a duty is placed on Consumer Focus to promote sustainable patterns of consumption, an area of growing importance given the Government’s targets on carbon reduction. Noble Lords will be well aware of the work done by Consumer Focus—for example, on smart metering and the Green Deal. Again, is that duty a public function? If not, it would need Amendment 60C to protect it. Fourthly, does the statutory duty of Passenger Focus to represent the interests of the travelling public count as a public function?
Finally, I am pleased that, after some hesitation, Ofcom has agreed to its communications consumer panel continuing until at least April 2012. However, the uncertainty that surrounded its future for many months, and the consequent risk of an advocacy gap for consumers, shows how important it is that during the passage of the Bill, but also when it becomes law, there should be no weakening of vital protections for consumers. I hope that the new formulation will ensure that there is never a lacuna between the ending of one body and the start-up of its functions elsewhere. Will the Minister give those assurances and consider, particularly on funding, whether certain things could be retained without having regard to the objectives set down in statute? I beg to move.
My Lords, I will speak to Amendment 60A. I am a member of the Delegated Powers and Regulatory Reform Committee, which has given considerable thought to this. However, I speak for myself and not the committee—as is always the case, of course.
I remind the House that the committee’s 11th and 12th reports are in the Vote Office now. Paragraph 12 in the 11th report states:
“If these expansive powers are to be delegated by Parliament to Ministers, it is important that, as a minimum, the general purposes for which Parliament expects the powers to be used should be set out on the face of the Bill, and this is not currently the case. The Committee therefore concludes that, as they stand, clauses 1 to 5 remain inappropriate delegations of legislative power”.
Quite rightly, the Minister has indicated that that is what Amendment 60A seeks to address. I am sure that he has put his usual effort into it, because I agree very much with my noble friend Lady Hayter that the Minister has gone a long way to improving this Bill—not least with the sunset clause, as the Delegated Powers and Regulatory Reform Committee recommended, which is a very important move. Indeed, I suspect that if the Minister had control of this Bill from the beginning, it might not have been such a mess in the first place. He must take some credit for that. Whether that helps his career or not is another matter, but I am afraid I cannot handle everything from here.
The amendment still deals with the issues under which the Minister may make an order. It refers to these fascinating words:
“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”.
I always wonder how courts cope with things like this. Presumably if a body, an organisation, or an individual for that matter, chose to challenge a decision, it would first have to show that it was focusing on one of these issues. Then, if the court were asked to adjudicate, it would have to adjudicate on that basis.
This is where we come to the second issue. In its 12th report—the latest one that came out the other day—the Delegated Powers and Regulatory Reform Committee says in paragraph 8:
“It is for the House to consider whether Amendment 60A provides an effective indication of the purposes for which Parliament will expect Ministers to use their very broad powers under clauses 1 to 5”.
I would like a little more from the Minister on that. I am not sure how anyone is to interpret the phrase:
“improving the exercise of public functions”,
“efficiency … effectiveness … economy, and … securing appropriate accountability”,
without either giving up in the face of a stronger government position or challenging it in court. I do not think that I am not alone in having concerns over many years, and over many Governments, about this increasingly blurred area between what Parliament says and means and the courts having to interpret it, which gets harder by the day.
“improving the exercise of public functions”
could be used in almost any circumstance. You could put it into almost any Bill, stand by it and say, “This is what the Government have decided and we will now have the powers delegated to us to carry it out in the way we think fit”. We should remember that when we delegate powers in this way, we are handing very broad powers to Ministers, which was the issue that concerned the committee. I would also argue that these powers are not clearly defined, so I would like a little more explanation from the Government. Indeed, I wonder where the words,
“improving the exercise of public functions”,
came from. I have a sneaking suspicion that, having read the 11th report, the Minister or his staff decided that they had to come up with something better. Since there is nothing in the Bill, the best they could manage to come up with is this phrase. Again, it could appear in almost any Bill, but if we go down this road we will start producing Bills that will hand over even more power to the courts to interpret. It is a bit late in the day, but I wonder whether the House is really happy about Ministers having this much power delegated to them in increasingly difficult areas of definition.
My Lords, I shall speak to Amendment 60B. I cannot resist following up the compliments of the noble Baroness, Lady Hayter, and the noble Lord, Lord Soley, but when I recall that my noble friend Lord Taylor comes from Holbeach, he is now known for ever in my mind as the “Lincolnshire poacher” because he is the man who took the wretched Schedule 7 right out of the Bill. I thank him for that.
My amendment is designed to try to make the addition to the Bill proposed by the noble Lord, Lord Taylor, a little more manageable for the user, if I can put it that way—and I am not thinking of the judges. My noble friend anticipated what I might say by giving the example of two pensions bodies for which he felt the proposal might be efficient but not economical. He studiously avoided referring to the other epithet to be found in his amendment: “effectiveness”. My claim is that “effectiveness” covers precisely the point that he is seeking to maintain.
I am concerned about the duplication created by the words “efficiency” and “economy”. Indeed, I looked up all three words in the dictionary, and “efficiency” is part of the meaning of “effectiveness”. Given that the law of the land is that Parliament does nothing in vain, I wonder whether we are not creating a problem in the repetitive nature of “efficiency, effectiveness and economy”. Instead of eliminating “efficiency”, I suppose I could have eliminated “economy”, but I feel strongly that this is a bit like saying of the Minister that he is strong and powerful and effective. Someone reading those attributes might say, “Well, it is the sheer muscle power that must rule the roost in that description of his virtues”. What concerns me a little is that the same sort of approach may be taken not by a court but by a Minister himself or herself: namely, that efficiency and economy are the overriding requirements. In fact, I believe that effectiveness is always the most important virtue of the three. Effectiveness surely goes to the achievement of the purposes to which the effectiveness relates. You can be as economical and efficient as you like, but effectiveness is key.
I shall not labour the point, but I would like the Minister to consider what I have said about the example that he gave and, if he can—here I challenge him—to come up with an instance in which the elimination at Third Reading of the word “efficiency” or, if he prefers, “economy”, would in any way encumber a Minister in what he or she has to do under this very important clause. I beg to move.
It might be of assistance to the House if the noble Lord would choose whether to move his amendment at the appropriate point. At the moment we are still considering Amendment 60AA, moved by the noble Baroness, Lady Hayter, as an amendment to Amendment 60A.
My Lords, I will intervene briefly on Amendment 60A to add to the paeans of praise from other noble Lords on the way that the Minister has promoted the Bill. I was deeply concerned about the way that it was originally drafted, not least from the point of view of many judicial or quasi-judicial bodies that could have come to a summary end if amendments had not been made. I hope that this is not misunderstood but the Minister has showed exemplary understanding of the concerns expressed on all sides of the House. I know that the noble Lord, Lord Phillips, was not concerned for the judiciary but perhaps I may put myself in a different category: I was concerned for the judiciary as it was. The Bill is now in immeasurably better form. Other noble Lords have said this afternoon that they would like the Minister to amplify on this or that comment, but I see no practical difficulty in regard to the Bill as it now stands.
My Lords, I would like to add my words of appreciation to those that have already been made to my noble friend Lord Taylor of Holbeach. When a Bill of such complexity and importance is produced early in the lifetime of a Parliament, it is perhaps not entirely surprising that the drafting would give rise to great concern. That concern has been reflected in the reports of committees of this House. Those committees—the Constitution Committee and the Delegated Powers and Regulatory Reform Committee—are due warm appreciation because, although there was no prior, pre-legislative scrutiny, they have given it most careful scrutiny. I am particularly grateful for the 12th report from the Delegated Powers and Regulatory Reform Committee which set out the matter that is to some extent covered by Amendment 60A, moved by my noble friend Lord Taylor of Holbeach.
The Minister referred to Amendment 61ZA standing in my name and to which I draw the House’s attention. That was intended to respond to the observation of the Delegated Powers and Regulatory Reform Committee that certain matters set out in Clause 8 are simply ones to which the Minister must have regard or consider. It was a particular criticism based upon the wider concern that the purposes of the Bill and the powers to be used by Ministers had not been adequately set out, and that this was a power of delegation to be embodied in the Bill which needed greater justification in terms of its purposes. I am grateful for what the Minister has said. The language of his amendment appears designed to tackle this gap, at least in part. There are certain differences between the drafting of my amendment and Amendment 60A.
It may be of some interest to noble Lords who have the same print of the Marshalled List as I have to know that Amendment 61ZA to which the noble Lord refers is the one immediately after the withdrawn Amendment 61. I think that the number, 61ZA, has not been printed.
I am very grateful to my noble friend Lord Elton for making that clear. There is a difference; in fact, there are at least two differences which may be of some significance, between government Amendment 60A and my Amendment 61AZ. The first is that in my proposal the Minister should be permitted to make an order only if he considered that,
“the order will achieve one or more of the objectives in subsection (1)”.
That embodies two points; first, that there should be an expectation on the part of the Minister that the power, “will achieve” one of the purposes; and, secondly, it does not require all the purposes to be achieved by the use of the power.
The Minister referred to my amendment as being in some ways less than his, in that it refers to,
“one or more of the objectives”,
whereas, in his amendment, the Minister has to consider,
“that the order serves the purpose of improving the exercise of public functions, having regard to—”.
It appears to me that the listing of,
“efficiency … effectiveness … economy, and … securing appropriate accountability to Ministers”,
is a collective, not a single test, or even one to be applied to two of these criteria. Therefore, I felt that the amendment that I had tabled was, in some ways, more realistic because it is quite often the case that effectiveness and economy are not necessarily the same and not necessarily both achievable by a measure of government. That is, it is desirable that they should all be achieved, but it cannot be certain and if there is a choice, it ought to be possible for the Minister to make that choice.
This is not a form of words, as I understand it, which just bows in favour of motherhood and apple pie; it is, as I see it, an opportunity for the Government to indicate, in the report that they will produce before Parliament considers the legislation, what it is that is moving the Government. I think it reasonable that, if they could demonstrate greater efficiency, greater effectiveness or greater economy, they should be able to say so and not necessarily have to tick all four boxes. However, this is probably a matter for construction by greater legal brains than mine and consequently, I hope that the matter might be reconsidered at a later date. I am very grateful to the noble Lord, Lord Taylor, for the changes he has proffered to the House, which are a substantial improvement on what went before.
My Lords, I, too, warmly welcome the amendments brought forward by the Minister. I, too, associate myself with all the tributes paid to him. I hope that the praise from your Lordships’ House does not cause him any embarrassment back at the ministry. I am a little disappointed, however, that he did not feel able to respond positively to the amendment in the name of the noble Lord, Lord Newton of Braintree, who all noble Lords will wish to see back in his place as soon as possible. That amendment would add fairness, justice, openness and transparency to the list of factors to which the Minister must have particular regard. The Minister suggested in his opening remarks that to add such concepts to the clause would impose what he described as an “abstract evidential burden”. I am sure that on reflection he will recognise that the concepts introduced by the noble Lord, Lord Newton, are no more abstract than the concepts of efficiency, effectiveness, economy and accountability that are included in his own very welcome amendment. I ask him to reflect further on the criteria in the amendment of the noble Lord, Lord Newton.
The answer to the question put by the noble Lord, Lord Soley, is that this clause is important not just, or indeed primarily, for what would happen in court if there were ever to be a challenge; the clause is much more important for the discipline that it imposes upon Ministers and indeed on civil servants when they are considering the exercise of these vital powers. The clause identifies what the Minister should have in the forefront of his mind when he performs this function, and the amendment of the noble Lord, Lord Newton, would help to ensure that Ministers had at the forefront of their mind the vital need to exercise the powers fairly as well as efficiently. I therefore ask the Minister to think again about this matter.
My Lords, I support the amendments in the name of my noble friend Lady Hayter, specifically Amendment 62. I do not want to dissociate myself from the general praise for the Minister, the noble Lord, Lord Taylor; he has been the most flexible of Ministers that we have yet seen in this coalition Government, and we are all extremely grateful to him, not least for his Amendment 60A. However, it is still slightly lacking; if the Minister is now the Lincolnshire poacher, where does that leave the gamekeeper? Parliament is the gamekeeper, but with the whole of the Bill Parliament is letting go the central principle that primary legislation can be amended only by other primary legislation. If we are to do so—and I understand the logic and the safeguards that are beginning to be built into the Bill—then we need to be quite explicit about how we are letting it go.
My noble friend Lady Hayter’s amendments make it clear that, when the aims and objectives of a particular body are specified in existing primary legislation and when any Minister wants to activate one of these mergers, abolitions or changes in function, then as part of the process the Minister must go specifically through those aims and objectives and explain how they will be achieved in the absence of the body or after the proposed changes to the nature of the body have been made. In the terms of the noble Lord, Lord Pannick, that means a bit more discipline. It requires Ministers to put before this House what the original primary legislation required of the body and how that will now be carried out. If that is to be transferred, that needs to be explicit; if that is to be merged with the requirements of another body, that needs to be explicit; if that is to be transferred to a private body, that needs to be explicit, with the other complications that arise from that; if that is to revert to the Minister, that needs to be explicit; or, if that is to disappear into the ether, Parliament needs to be clear what is happening. When we agree to these safeguards—and the Constitution Committee has now accepted that, broadly speaking, these safeguards meet the criteria—we need to ensure that the process runs through a check of what was set out in the original legislation. My noble friend’s amendment would take us a significant way towards achieving that and exerting that degree of discipline on the future use of this legislation by Ministers.
My Lords, I add my praise to the Minister, which the noble and learned Lord, Lord Woolf, expressed so well. Even so, some tweaks might be provided, as the noble Lord, Lord Pannick, was saying. I entirely agree with him. I speak particularly in relation to Amendment 62 tabled by the noble Baroness, Lady Hayter, because the World Wildlife Fund, which I think the whole House will agree is an extraordinarily sensible organisation, is concerned for the Marine Management Organisation to which she referred. However, she referred to it in the earlier amendment and not Amendment 62. The problem the World Wildlife Fund sees as set out in the briefing I received—I am sure many noble Lords will have received it—requires at least some clear indication by the Minister that the Marine Management Organisation is not at risk. The bodies listed in Schedule 4 could have their funding arrangements changed by secondary legislation and the World Wildlife Fund is concerned that some degree of pressure—for instance, from drilling organisations—might imperil the Marine Management Organisation. It seems to me, if I may respectfully say so to the Minister, that either the amendment of the noble Baroness, Lady Hayter, should be accepted or at least the Minister should give a very clear policy decision that this could not possibly happen.
My Lords, it is my turn now to pay tribute to the Minister. This is a greatly improved Bill and it is with grateful thanks to our Minister in this House that those profound changes have been made. Amendment 60A is a testament to one of the big changes in the Bill.
The noble Lord, Lord Maclennan of Rogart, was right to point out that many of the problems relating to the Bill came from the speed with which it was introduced. There was no excuse for that because the Bill should not have been introduced so expeditiously. I in no way blame the Minister for that and he has been exemplary in the way in which he has engaged with Members on all sides of the House.
In relation to Amendment 60A, I appreciate that the Government have moved substantially in setting the criteria for making an order. We particularly appreciate subsection (1) of the amendment:
“A Minister may make an order under sections 1 to 5 only if the Minister considers that the order serves the purpose of improving the exercise of public functions, having regard to”.
We believe that to be particularly important but I still think that improvements could be made. It is clear, as my noble friend Lord Soley and others have said, that there is still a nebulous area over which more discipline could be exercised and which could feed the fees of lawyers and be long debated in the courts. It would be good if there could be a little more clarification.
The Delegated Powers Committee said:
“It is for the House to consider whether amendment 60A provides an effective indication of the purposes for which Parliament will expect Ministers to use their very broad powers under clauses 1 to 5”.
I think the House will probably agree that the noble Lord has met the necessary criteria. However, as noble Lords have said, perhaps one or two tweaks could be made. I pay tribute to the noble Lord, Lord Newton of Braintree, who we miss greatly today, because I think he has done a fabulous job on this Bill; not just because he happens to have agreed with some of the things we have said but because he has been courageous to be a Member of the government Benches and to stand steadfast on things in which he passionately believes. His amendment, which we are discussing today, is particularly important. As the Minister himself said, the intentions of the amendment are laudable and at the heart of the coalition Government’s approach. I do not know why the Minister would not feel comfortable with having regard to the objectives of achieving fairness, justice, openness and transparency being in the Bill. As the noble Lord, Lord Pannick, said, other words have been included in the Bill that the noble Lord, Lord Phillips, might say were otiose. It is a “belt and braces” approach. We would feel a lot more comfortable if the Government were able to accept the excellent amendment of the noble Lord, Lord Newton.
In relation to the amendments tabled by my noble friend Lady Hayter, she has also done some sterling work during the passage of the Bill. Something that she has pressed for throughout is for Ministers to have regard to the purpose for which the bodies were created in statute. The Minister has moved a long way towards that and it has largely been accomplished. I, too, have received some excellent briefing from the World Wildlife Fund, especially in relation to its concerns on behalf of the Marine Management Organisation. We should like to have further clarification from the Minister on that point.
Unfortunately, I was not able to be here when the Minister spoke. Therefore, strictly I am being unmannerly in saying anything at all, but if he and the House will permit me to make a couple of brief remarks, I would be grateful to do so. No one is looking cross, so I will continue, briefly. I regard Amendment 60A as an important step forward. I do not think that Amendment 61A on independence will be necessary in the light of the changes that we made in Committee and the safeguards that we put into Clause 16 on restrictions on ministerial powers. Those deal with the necessary independence criteria and seem to be adequate.
With regard to the amendments of the noble Baroness, Lady Hayter, I should be grateful if the Minister could clarify whether when his Amendment 60A refers to,
“improving the exercise of public functions”,
it is intended to mean the functions as defined in the legislation creating the body. If that is right, then it seems that what the noble Baroness, Lady Hayter, is seeking to achieve, with which I agreed at Second Reading, is achieved. The Minister, in making the order, will have to have regard to the aims and objectives of the body as they are specified in legislation. For example, the Equality and Human Rights Commission’s aims and objectives are defined in the Equality Act 2006. I assume that, when any change is made in relation to that body by delegated legislation, the Minister, in having regard to improving the exercise of the commission’s public functions, will have regard to those public functions as prescribed in the equality legislation. It could not really be otherwise because the functions are those defined by Parliament in that Act. If he could clarify that that is so, I do not think that the amendment of the noble Baroness, Lady Hayter, would be necessary.
On Amendment 60AB, in the name of the noble Lord, Lord Newton, again, it seems that openness and transparency are meant to be dealt with by the super-affirmative procedure itself and the requirements that the Minister makes. I thought that we had dealt with fairness and justice in the changes that we made to Clause 16 when we were dealing with restrictions on Ministers’ powers, which were to achieve the rule of law and fairness in doing so. I do not regard those as necessary amendments. I am grateful to have been listened to.
I did not want to object to my noble friend contributing to the debate but I felt like asking him whether he was going to be helpful. However, he has been helpful, and so have all noble Lords who have spoken. This debate has been illustrative of the discussions we have had on the Bill and gives me an opportunity, in winding up, to answer some of the questions that have been raised. I am pleased with the general welcome that has been given not only to changes made to the Bill, for which I am extremely grateful and modestly so, but also to the amendments that we are considering today.
The Bill team has been much exercised about the changes to Clause 8; it has not been an easy thing to get together. There is always a gap between precision on the one hand and abstract concepts on the other. We do not want the clause to be a prison which makes it difficult for the Bill to be used to reform public bodies, which I think is desired across the House, nor do we want it to be open to challenge. I have a slight interest in music. I always like triplets; they add something to things. This triplet of alliterative words can be seen as being a duplication of meaning or as being an extension of meaning across a range of measurable indicators to which Ministers will have to have regard. That cannot be said of the amendment of my noble friend Lord Newton of Braintree, in which he introduced his more abstract concepts. There is a difficulty in that sense in that the definitions would be harder to pin down and more open to challenge than would be the case with those enshrined in Amendment 60A. It is true to say that even these are broadly defined precisely because the Government are proposing a wide range of reforms. However, the important point to note is that Ministers will be required explicitly to set out in an explanatory document accompanying any order why they believe the order will improve the exercise of public functions. I think the House agrees that that is very important and a great step forward.
I know that the noble Lord, Lord Pannick, was disappointed that we were not seeking to adopt my noble friend’s amendment but the breadth of the definitions involved would complicate the exercise of functions under the Bill. The most important thing is to ensure that, in exercising functions, we have the right checks so that Parliament can judge the issue using more measurable indicators. I say to the noble Lord, Lord Soley, that the measure does indeed impose an abstract evidential burden. However, there is a discipline on Ministers, and that is very important. The key here is the explanatory document in which a Minister must justify why he considers that the order meets the objective in Clause 8.
I hope that I have explained to my noble friend Lord Phillips why I would like to keep in all three words. They merge and blur into each other. The English language lacks precision in relation to things such as economy, efficiency and effectiveness but, like most things, we know them when we see them. They can be defined by an observer who is skilled at looking at them. Therefore, I hope that my noble friend will accept that I am not able to accept his amendment.
I would say to my noble friend Lord Maclennan that we do understand that he believes that any one of these things is sufficient. However, the fact that the three together have to be accounted for to Parliament in any order is the key to why we believe that Amendment 60A is sufficiently highly defined to assist Parliament in judging the orders when they come along.
I think the most interesting amendment to debate is the one tabled by the noble Baroness, Lady Hayter. Indeed, I, too, received the briefing from the World Wildlife Fund. I have been on its mailing list ever since I challenged the noble Lord, Lord Hunt of Kings Heath, on the Marine and Coastal Access Bill and, before that, on the Climate Change Bill. He and I know all about the Marine Management Organisation. It was something very close to my heart. Were the Marine Management Organisation to make an unreasonable decision that was not consistent with its aims and objectives—for example, if it showed bias—like any public body it would be subject to judicial review. My noble friend Lord Henley is here with me. I know that Defra does not propose to make sufficient changes to the basis of the MMO’s funding. Any changes made would be subject to the processes that the Bill sets in place. This would include, for example, any changes to the MMO’s funding.
The noble Baroness asked about functions in connection with Consumer Focus. Public functions are defined in Clause 25 as the statutory functions or functions under a royal charter. The order on Consumer Focus under Clause 1 will relate to its functions, including its statutory functions. Therefore, the purpose set out in Amendment 60A will apply. The Minister must consider,
“that the order serves the purpose of improving the exercise of public functions”.
I hope that I have managed to reassure noble Lords on the matters that have been raised. I beg to move Amendment 60A.
The amendment before the House at the moment is Amendment 60AA in the name of the noble Baroness, Lady Hayter.
My Lords, I thank the Minister for his reply. Clearly we are not worried about what present Ministers will do to the funding of the MMO; it is what any future ones might do that we distrust. However, I am grateful for the assurances and explanations that the Minister has given. I beg leave to withdraw the amendment.
Amendment 60AA (to Amendment 60A) withdrawn.
Amendments 60AB to 60C (to Amendment 60A) not moved.
Amendment 60A agreed.
Amendment 61 had been withdrawn from the Marshalled List.
Amendments 61ZA to 62 not moved.
Clause 9 : Devolution
63: Clause 9, page 5, line 5, leave out from “in” to “an” in line 6
My Lords, in moving the amendment in the name of my noble friend Lord Taylor, I shall speak also to Amendments 64, 73 to 82, 84 to 87, 88, 89B, 90, 92, 93, 95 and 99. I understand that within this group we will also debate Amendments 83 and 87A in the name of the noble Lord, Lord Rowlands.
The Bill contains a number of clauses that confer powers on Welsh Ministers. These clauses have been requested by the Welsh Assembly Government to enable them to give effect to possible institutional changes flowing from their ongoing review of how environmental policies are delivered in Wales. This review is linked to wider policy proposals to develop a more integrated ecosystems approach to managing the natural environment in Wales.
These proposals were set out in A Living Wales, the Welsh Assembly’s natural environment framework, which was subject to recent public consultation. The consultation specifically raised the issues of reviewing institutional arrangements. The Assembly Government rightly want to ensure that they have the most effective and efficient institutional arrangements in place to deliver the proposed new policy approach. More than half the responses to the consultation addressed the question of institutional arrangements and the majority of those responses were supportive of a much more integrated delivery approach, including the possible establishment of a new environmental delivery body.
The Assembly Government have looked at a range of options as part of the initial stages of the review and have now asked for more detailed work to be undertaken on the purpose and function of establishing a single environmental body for Wales and assessing the benefits and costs of establishing such a body. Any final decision to implement changes to the way in which environmental policy is delivered in Wales will be a matter for the incoming Assembly Government, following the National Assembly elections in May. However, I assure the House that it is the Welsh Assembly Government’s intention to hold a full public consultation on any proposals to revise delivery arrangements. Amendment 88 places a duty on Welsh Ministers to consult on orders under Clauses 12 to 14.
I turn to the detail of the amendments. A number of them serve more accurately to reflect the boundary between devolved and non-devolved matters. Amendments 87 and others widen the circumstances in which the consent of the Secretary of State or another UK Minister will be required. They also constrain Welsh Ministers’ powers in Clause 12 to modify or transfer functions of environmental bodies in relation to Welsh devolved functions. Amendment 82 seeks to amend Clause 13 and further to safeguard the interests of the United Kingdom Government by ensuring that Welsh Ministers cannot modify the constitutional funding arrangements of any cross-border operator, not merely the Environment Agency and the forestry commissioners.
Amendments 73, 77 and 79 serve to extend Welsh Ministers’ order-making powers in Clauses 12 and 13 to regional flood and coastal committees whose areas are wholly or mainly in Wales. This would allow the Assembly Government to modify or transfer the functions of these committees in light of the conclusions of the Assembly Government’s review of environmental bodies.
Amendment 80 aims to give Welsh Ministers order-making powers in relation to a short list of bodies that are wholly or mainly in Wales—namely, agricultural dwelling house advisory committees, agricultural wages committees, the Environment Protection Advisory Committee, regional and local fisheries advisory committees and forestry regional advisory committees. The amendment also provides Welsh Ministers with powers to modify the funding arrangements of drinking water inspectors and powers to modify or transfer the functions of internal drainage boards that are wholly or mainly in Wales, as well as powers to modify their constitutional arrangements. This is necessary in respect of the Welsh devolution settlement, because the bodies listed exercise devolved functions and are constituted in Wales or relate to areas within Wales. These powers are equivalent to those of United Kingdom Ministers under Clauses 1 to 6.
The intention is that those Welsh bodies will be abolished at either the same time as their English counterparts or in accordance with any programme initiated by Welsh Ministers as a result of the review that I mentioned of the principal environmental delivery bodies in Wales—the Environment Agency, the Countryside Council for Wales and the forestry commissioners. The purpose of the power to modify the funding arrangements of the Drinking Water Inspectorate is to enable inspectors to establish a charging scheme to recover the costs of its regulatory functions from water companies, while the powers relating to internal drainage boards are linked to the outcome of the review of environmental delivery bodies. It may, for instance, be the case that, if a new environmental body were established, the functions of the boards might be transferred to that body.
Amendments 63 and 64 are necessary to reflect the outcomes of the referendum on Assembly powers. They ensure that United Kingdom Ministers have a duty to seek the consent of the National Assembly for Wales when they wish to make orders under Clauses 1 to 6 of the Bill that may encroach on the Assembly’s legislative competence. Amendments 88 and 89A build in the same safeguards to the exercise of the powers of the Welsh Ministers as apply to the corresponding powers of Ministers of the Crown—that is, the duty to have regard to certain objectives and to consult on the exercise of order-making powers. Finally, Amendment 89 establishes a procedure for the National Assembly for Wales to consider orders of the Welsh Ministers that mirrors the equivalent parliamentary procedure for orders made by United Kingdom Ministers.
These new clauses and amendments have been developed in close consultation with the Welsh Assembly Government. Furthermore, the National Assembly considered and agreed a legislative consent motion for the Bill on 8 March, noting that it is content for Parliament to legislate in areas of its devolved legislative competence. I beg to move.
My Lords, I will speak to my amendment, which would delete Clause 13, and to Amendment 87A, which suggests that parliamentary consent should be added to that of the Secretary of State for powers under the clause. I will preface my remarks by saying that my record shows that I have been a fervent supporter of transferring legislative competence to the Assembly through the procedures that we have had in the past. I refer to the legislative competence orders that were in Part 3 of the Government of Wales Act and to individual framework clauses in Bills that have come before the House in the past two or three years. I supported them because this was an important and useful way in which to transfer legislative competence until the referendum decided that the Welsh Assembly and Government should have full legislative powers. I am not an opponent of such transfers.
However, when I saw Clause 13, I thought that it was a step too far. This House has many times reflected deep concern and uneasiness about sweeping, ill defined powers granted to Ministers. The report of our Regulatory Reform Committee stated that the powers in Clause 13 were “insufficiently limited”. The committee made the same objections that it had made to Clauses 1 to 6, which was that Minsters were given,
“unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process”.
There have been many changes to the Bill, but the fundamental issue of the sweeping nature of the powers in it has caused serious concern. Henry VIII looks like a parliamentary democrat when one considers the powers that we are giving to Ministers in the Bill. I still feel extremely uneasy that an Act of Parliament is bestowing these powers on Welsh Ministers. This should be the National Assembly’s responsibility now that it has the power to do so after the referendum; that would have been a better process.
My second point, to which the Minister made no reference even though it is the reason for yet another new clause in the Bill, is that our Regulatory Reform Committee also drew attention to an extraordinary aspect of Clause 13. The committee states:
“The net result of what is proposed here is that Parliament should delegate to Welsh Ministers the power to amend Acts of Parliament in matters as respects which Parliament has not delegated to the NAW the power to amend Acts of Parliament by enacting measures, and all subject to no Parliamentary control at Westminster whatsoever”.
In other words, we were seriously blurring in Clause 13 the division of responsibilities between devolved and non-devolved powers. I accept that, since then, amendments have been made that clearly define the nature of the devolved functions and the powers that Welsh Ministers will have in Wales in relation to this Bill. I welcome that. However, in the Government’s response to this fundamental criticism that they were blurring the division of responsibilities, lo and behold the only two precedents that could be dredged up to justify such a power were the European Communities Act 1972, which everyone recognises is unique to say the least, and a subsection from planning legislation of 1998. I have looked at both and I do not think that they are comparable in any shape or form. Fortunately, it seems that, as a result of the pressures that have been applied and the criticisms that have been made, the clause defining the devolved and non-devolved powers relating to Wales has now been reasonably satisfactorily resolved.
What is remarkable is that here we are, post referendum, with power having been transferred to legislate in Cardiff on this and other issues, yet in a Bill of this House we are writing out in detail the procedures that Welsh Ministers have to go through to justify and consult. In other words, we are writing into Welsh Ministers’ responsibilities the super-affirmative procedures that we are applying to UK Ministers. Putting aside the general merits of the issue, I think that it is quite extraordinary that at this moment in time we are seeking to write into a Bill a remarkable clause that lays out in great detail the responsibilities of Welsh Assembly Ministers to consult. Again, I respectfully suggest that that should be the decision of the Assembly.
The Minister’s reply is that on 8 March we suddenly had an approval of all these proposals by the Assembly. Although the powers in Clause 13 have been evident since last October, it is quite clear that Assembly Members have not endorsed the original clause. That is why I have sought to remove the clause. I accept that since then there have been changes. Obviously the conversations that have gone on between Welsh Ministers and UK Ministers and officials have clarified the position in a number of important respects since I tabled my amendment, but I think that we ought to be wary about offering such powers at this stage to Welsh Assembly Ministers. They should seek them themselves from their own Assembly. Having said that, I accept that at this stage in the proceedings it is going to be difficult to turn back. Miss Jane Davidson, the Environment Minister, has fulfilled that portfolio with vision and commitment. She has now retired but I understand her desire to have these types of powers.
Finally, I hope that, if nothing else, the Minister will accept my Amendment 87A. Changes to these bodies will have consequences across the border. Quite rightly there is a provision that the Secretary of State has to consent to any changes made, just as consent has to be sought from the Assembly Ministers and the National Assembly to any orders that could affect Welsh devolved powers in relation to these bodies. However, in this case, only the Secretary of State’s consent is required. I accept that that consent is necessary on any cross-border issues, but surely both Houses here should approve such changes as well. Just as Assembly Ministers and the National Assembly are expected to confirm their consent to changes that might be made by a UK Government, I honestly believe that we should also insist that both Houses of Parliament should approve any Secretary of State’s consent that could alter and change the role, functions and money of the bodies that are covered in these clauses.
I accept and understand that now, because Clause 13 has been transformed and additional safeguards have been put in place, there is a clear distinction between devolved and non-devolved powers in the Bill, but I press the Minister to agree to Amendment 87A, if nothing else, so that this House and the other House have to approve the consent of the Secretary of State in relation to the clauses.
My Lords, I pick up some of the points made by the noble Lord, Lord Rowlands, which will no doubt exercise the House again in future because they touch on the lack of symmetry with regard to devolution. The powers in Scotland and Northern Ireland are different from the powers in Wales, even after the referendum that took place on 3 March. One of the arguments in favour of the changes that came through that referendum was transparency: people must be able to see clearly where responsibility lies so that the Government taking the decision can be judged and held to account. As the noble Lord, Lord Rowlands, said, anything that blurs that question undermines the intent of the devolution settlement.
There is also the more general question of the way in which orders are used to effect changes. When one has the capability in democratic fora, such as the National Assembly for Wales, to do things more openly and transparently than when everything is done by order, that should be used. None the less, I take the noble Lord’s point that some concessions and changes have been made to try to meet some of those points as the Bill has progressed.
I believe that Ministers in the National Assembly are broadly content with the provisions and that the Presiding Officer, the noble Lord, Lord Elis-Thomas, is likewise content. I have not tabled any amendments, but two or three issues would benefit from further clarification. First, can the Minister give an assurance that in every instance where matters are devolved, it is the Ministers in Wales who have the full powers with regard to any implementation of the Bill applying to Wales? I believe that that is the case, but I would be grateful if we could have that confirmed from the Dispatch Box.
Secondly, where there are cross-border issues, to which the noble Lord, Lord Rowlands, referred, can we be assured not only that, when there is an initiative in Wales, Welsh Ministers should consult first with their Westminster counterparts, but that, likewise and equally, when Westminster Ministers propose changes that have a cross-border implication, they, too, will consult Welsh Ministers before taking any action? That again concerns symmetry and transparency and ensures that there is harmonious co-operation on such issues.
Thirdly, when Bills or orders before either Chamber in Westminster have an implication for Wales in matters that are devolved, can we have an assurance that consultation will take place much earlier in the process as the Bills or orders proceed through their scrutiny in Parliament? That earlier consideration would be very valuable, as it would have been in the context of S4C, for example, which we have debated under the Bill.
This applies not only to matters that are devolved; there are also matters that are not devolved or not fully devolved where there is specific relevance for Wales. I would imagine that, in the spirit of the co-operation described in the amendments, there will be full consultation on those matters also. I press that any such consultation should take place as early as possible so that there is full engagement and the response to consultation can be built into that process. With those few comments, I look forward to hearing the Minister’s response.
My Lords, first, I thank the Minister very much for explaining in detail how we reached the amendments, the redrafting of several clauses and the addition of five new clauses. I understand that all of these new clauses are in relation to the powers of the environmental bodies, the consequential provisions and delegations, the restrictions on ministerial powers and cross-border issues. Like other noble Lords, I am glad to learn that there has been consultation with the Welsh Assembly Ministers. As the noble Lord, Lord Wigley, said, consultation is important and the earlier we can have it, the better. I understand that the consultation involved Jane Davidson, the Environment Minister, who is retiring. As my noble friend Lord Rowlands said, she has been an excellent Minister and has the environment at heart. She is stepping down from the Welsh Assembly, but I am sure that she is going on to other things. I wish her well in the new journey that she will be undertaking. She played a big role in the environment and in these discussions.
The amendment tabled by my noble friend Lord Rowlands is what Welsh Ministers have been asking for. It gives Ministers in the Welsh Assembly the tools to do the job in matters relating to Wales. The changes clarify where responsibilities lie and certainly make it clear what the responsibilities are at the Welsh level. This Bill and the amendments before us enhance the way that the Assembly will be able to work in future. It is another step on the devolution journey, giving Welsh Assembly Members the power to act for the people of Wales on these matters.
Amendment 89B inserts a new clause after Clause 14 which deals with the procedure for orders by Welsh Ministers. Subsection (11) states:
“An order may not be made by the Secretary of State … unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament”.
Amendment 87A, tabled by my noble friend Lord Rowlands, is an amendment to Amendment 87. It is similar as the Secretary of State’s consent is required for an order under Section 12. Should there be a requirement for the approval of both Houses similar to that in subsection (11) in Amendment 89? What does the Minister feel about that? I support what my noble friend is saying in that amendment. We welcome the Government’s amendments. They respond to the wishes of the Ministers in the Welsh Assembly.
My Lords, I start by making an apology to the House and correct something that I said in my opening remarks. I misspoke when I referred to Amendment 89A; I meant Amendment 86A. When I referred to Amendment 89 I meant Amendment 89B. I say this just for the sake of the record. Because so many amendments have been withdrawn and then redrafted, it is rather easy to make mistakes of this sort. I hope that the House will accept that apology and that minor correction.
I am relatively new to Welsh matters, but as always it has been a joy to be taking part in this debate. I hope that I can satisfy the various concerns that have been put forward by noble Lords. I will start with the noble Lord, Lord Rowlands. I accept that he is not averse to transferring greater powers to the Welsh Assembly Government, but does not like Clause 13. He feels that it goes too far and gives too much to the Welsh Assembly Government rather than to the Assembly. He also talked about a blurring of the lines but accepted that some of our amendments improved on that. I assure him that there has been considerable consultation between us and Welsh Assembly Government Ministers. Like the noble Baroness, Lady Gale, I pay tribute to Jane Davidson, who is retiring. I met her only recently on cross-border issues, and I wish her well in her new role.
There has been a great deal of consultation on these matters, importantly not just between us and the Welsh Assembly Government, but also the National Assembly itself. As the noble Lord, Lord Rowlands, will be aware, that National Assembly passed a Legislative Consent Motion for the Public Bodies Bill on 8 March, to which I referred. Such a Motion is required because some of the provisions of the Bill come within the legislative competence of the National Assembly rather than of Welsh Assembly Government Ministers. In passing the Motion, the National Assembly has indicated it is content for Welsh Ministers to have executive powers on the lines proposed in the Bill.
I do not quite understand the noble Lord, Lord Rowlands, objecting to the Welsh Assembly Government gaining too much power, but he also appears to object to certain constraints placed upon them by this Bill. These matters have been discussed and we believe, as does the National Assembly, that there is a degree of agreement.
The second amendment of the noble Lord, Amendment 87A, requires the approval of both Houses of Parliament following the consent of United Kingdom Ministers under the new clause that will come in under new Clause 14. This is unnecessary because of the procedures already outlined by my noble friend. I hope, therefore, that he would feel able to withdraw or not move that amendment.
I turn to the various concerns raised by the noble Lord, Lord Wigley, who raised three points. The first was the question on devolved matters and whether that would be a matter for Welsh Assembly Government Ministers; I can assure him that he is correct. Secondly, on cross-border issues, he asks whether there will be consultation between us and the Welsh Assembly Government Ministers, or the other way around. I can assure him there will be consultation going both ways according to how the cross-border issue happens to run. Thirdly, I can give no concrete guarantee about when consultation will happen on any given issue but we would always hope to get it started as early as possible. If consultation between the two sets of Ministers is going to be effective, it is important that it takes place as early as possible. All I can say is that we very much hope that this will happen and, having said so from the Dispatch Box, that we or our successors of whatever political persuasion or Government will bear this in mind.
From what has been said by the noble Baroness, Lady Gale, I have the impression that these amendments meet a great many of the concerns that have been put forward. I therefore hope that noble Lords will accept these amendments, which set out in greater detail the powers and duties of the Welsh Assembly Government Ministers in dealing with these matters.
I listened to the Minister’s reply with great interest and I would like to put two points to him. First, on consent, Clause 9 provides that when UK Ministers want to make orders which could encroach on the Assembly’s legislative competence, they must seek the consent of the National Assembly for Wales, not just Welsh Ministers. If an Assembly Government issue orders which change or alter the law relating to those bodies and affect the cross border, is it not reasonable that not only should the Secretary of State’s consent be sought but also the consent of both Houses? If Clause 9 requires the approval of the Assembly, rather than the Ministers in the Assembly, would it not be a sensible procedure to require the reverse procedure? If, where the Assembly is making orders which could have considerable cross-border effects on the operation of that organisation and which therefore quite rightly require the consent of the Secretary of State, surely it should also require the consent of both Houses in just the same way.
My noble friend Lord Wigley asked about it. As he will see under Clause 9, there is a two-way process. UK Ministers have to seek the consent of the Assembly if they wish to bring in orders which could affect the performance of bodies in Wales. I would still like to press him on my Amendment 87A. I accept the changes that have now been made in relation to the other issues that I raised. He said that he could not quite understand why I seemed to object to the super-affirmative resolution. My objection is one of the principle of legislating in detail on the way in which Welsh Ministers should consult, when that should be determined by the Assembly. He says that that is covered by the 8 March decision. Before we conclude, perhaps he could tell us whether that decision included the reference to super-affirmative resolutions, because this clause has been introduced very late. Was it put before the Assembly? Was it part of the approval of the legislative consent process on 8 March? Before I decide what I will do about my Amendment 87A, will he respond to those points?
My Lords, we are at a relatively late stage of this Bill. I appreciate that there is one further stage, Third Reading, and that there are limitations on what we can and cannot do. It probably would be right if I took away the points that the noble Lord has made on Amendment 87A and his secondary point. I am not sure whether I will be able to satisfy him but I am more than happy to consider these matters in consultation with colleagues in other departments. On his second point about the 8 March decision, I can certainly give an assurance that specific reference was made as part of the memorandum and that it did come up in the debate. On that, I think that he can be satisfied.
On his point in relation to Amendment 87A, it might be worth the noble Lord, colleagues in the Welsh Office and me having further discussions. I do not think that what he is looking for in Amendment 87A is necessary, so I make no promises. In the light of his generally very reasonable behaviour on these matters, I will give him those assurances for the moment. Therefore, I hope that he will accept that we can press forward with the amendments as they are.
Amendment 63 agreed.
64: Clause 9, page 5, line 14, leave out subsection (8)
Amendment 64 agreed.
Clause 10 : Consultation
65: Clause 10, page 5, line 22, after “consult” insert “the public, including”
My Lords, earlier in our debate noble Lords paid tribute to the noble Lord, Lord Taylor, for his conduct of the Bill, which I would certainly echo. He has brought forward some welcome amendments, which have strengthened the effective scrutiny of the Bill. I urge him to go one step further and respond positively to my amendments in this group. There is no doubt that, with Clauses 8 and 16 and the strengthening of Clause 10 on “Consultation”, there have been welcome additions. Will the noble Lord, Lord Taylor, agree to strengthen the Bill a little more as regards Clause 10? Essentially, what I would like to see is that, when a Minister proposes to make an order under Clauses 1 to 6, under Amendment 65, the public must always be consulted. Under Amendment 66, in relation to Clause 10(1)(a), I am suggesting that the body or the holder of the office to which the proposal relates ought to include staff and trade unions. In this Bill—despite the modifications that the noble Lord has brought, including one or two that we have voted upon—considerable powers still rest with Ministers to deal with the bodies contained in Schedules 1 to 6. In view of that, it is right that there should always be formal public consultation when an order is used under this Bill.
We have discussed this matter in Committee. The noble Lord, Lord Taylor, took issue with me. He said, at col. 1722, that my amendment, as it would apply, would not be proportionate in relation to any proposed reform and that my approach runs contrary not only to the policy of the current Government but also to the code of practice on coalition, which, he pointed out, the previous Government had brought in June 2008.
I fully understand the argument that the noble Lord, Lord Taylor, is making, but the circumstances have changed. We have a Bill that lists a whole raft of public bodies and, through an order-making power, the Minister can make considerable changes to those bodies. When one reads down the list of organisations and sees those that are to be abolished and those that are going to be merged or have their constitutional arrangements modified—and that means that a Minister can decide to change the constitution of such a body, or to modify their funding arrangements—it does not seem unreasonable to me that there ought always to be public consultation in relation to the use of an order. In respect of the staff of those organisations, I would have thought that, since they are likely in some cases to be very fundamentally affected by the use of an order, it would not be unreasonable for us to put in the Bill that they, too, ought to be consulted.
I know that the noble Lord, Lord Taylor, has been very constructive in his response. I hope he may have been able to reflect a little since Committee stage on this point. I beg to move.
My Lords, this group of amendments touches a matter that has been very extensively discussed. I hope that there will be an open mind on what can be done. I realise that we have now reached a late stage in the deliberations of the Bill, and the Government have given a great deal of thought to this. It appears that part of the concern about explicitly requiring public consultation is that it may lead to unnecessary overkill in involving a great deal of expenditure, but that depends on the way that the consultation is carried out. I recall a debate that a number of Members in this House will perhaps also recall prior to the dissolution of the previous Parliament, in which the responsible Minister, the noble Lord, Lord Davies of Abersoch, laid out the work of the Cabinet Office in respect of public consultation. It was clear that, notwithstanding a code for public consultation, there were enormous variations in the way it was conducted. The issue requires to be readdressed not only because that debate revealed that the code was not being followed in terms of the time being taken to reply and the great variety of practices between departments, but also because in some cases a much longer period for consultation is appropriate than in others. I hope that the Government will give some positive and practical thought to how that might best be achieved.
So far as public consultation is concerned, with modern methods of communication, particularly the availability of a website, it is possible that it could be done involving quite limited public expenditure. Of course it could lead to a deluge of replies, but that is unlikely in the case of some of the bodies we have considered in the course of our debates, which have not functioned for perhaps five years.
Although the Bill and the amendments are quite specific in indicating who should be consulted, referring in particular to people who appear to be representative of interests substantially affected by the proposal, there can be other individuals who could usefully be consulted beyond those who may have a direct interest. It is perfectly possible, given that these are public bodies, that people who have served on them—some of them may be in this place—may have some knowledge of how they might be made to work better. Those are the sort of people whose opinions, I believe, would be worth paying some attention to, even though they are not specifically mentioned in the listed categories.
We are making good strides in respect of consultation, but I think that there is scope for a little more reflection and I hope, before the Bill is enacted, that such reflection will be given. I hope that the Government will not feel that this is an attempt to stymie their measures or simplify the process unreasonably. Rather, it is to avoid the possibility of these important matters being introduced to Parliament with the opinions of those who could suggest useful improvements being left out of the consideration. As a consequence, I am broadly supportive of Amendment 65 in the name of the noble Lord, Lord Hunt of Kings Heath, and I hope that the Minister will be able to give some practical thoughts about it in his reply.
My Lords, I support Amendment 65 moved by my noble friend Lord Hunt of Kings Heath, and in doing so I shall speak to Amendment 67 tabled in my name, although I will not move it separately. This amendment, along with all the amendments in this group, seeks to improve the consultation process that holds Ministers to account by Parliament. Amendment 67 would place a duty on Ministers to consult with the relevant local government body and any relevant local authority. Who could be against that? I do think that Clause 10(1)(b) and (g) are specific enough on their own because they leave too much in doubt about what is happening. You could say that we are being left sitting in a ministerial fog when what we need is clarity. My amendment would give that clarity by placing a clear and unambiguous duty to consult local government where those functions which are going to be subject to an order have a bearing on local government.
I shall be interested to hear what the Minister has to say. I think that my amendment will help the Government along towards working more closely with local government and should cause no problems. It could even be said that it moves the Bill a bit further along the localism road that the Government say they are so keen to promote. I shall leave it there. I echo the comments of my noble friend Lord Hunt of Kings Heath in saying that I hope that the noble Lord, Lord Taylor of Holbeach, will feel able to move a little on this point.
My Lords, I should like to take this opportunity to pay tribute to Lord Colville of Culross. Lord Colville was serving on the Merits Committee when I joined it some five years ago. I am not serving on it now, of course, because I did my four years and then got cycled off. Lord Colville taught me an enormous amount about consultation. It was his subject: he knew it from A to Z.
The Merits Committee of your Lordships’ House considers more than 1,000 orders every year. It looks at the Explanatory Memoranda. I can tell you for sure that the members of the committee usually go first to paragraph 8, the consultation paragraph. There is an enormous amount of expertise in your Lordships’ House in assessing not only whether consultation has been properly done and whether the 12 weeks were sufficient but also what has been left out or might have been elided. Noble Lords are extremely skilled in going back to departments and questioning the presentation of these paragraphs. That also applies to the paragraphs in the impact assessment, if there is one required.
I imagine that the orders in the Bill, when it becomes an Act, will be submitted to a committee of this House as well as, presumably, to a committee of the other place—that is clear from the language in the Bill. This clause includes, as well as paragraphs (a) and (b), paragraph (g), which says,
“such other persons as the Minister considers appropriate”.
If I am allowed from the Back Bench to give an assurance, I can give noble Lords a little Merits Committee assurance that, if a committee of your Lordships’ House considers that the Minister has missed out on who it is appropriate to consult, then his department will be pretty sharply told. I hope that we do not underrate the capability of this House to make sure that consultation is done in a really workmanlike manner. Of course, it is never satisfactorily done because there are winners and losers at the end of consultation. Nobody is completely satisfied for ever that the consultation has been properly done but if there is a way of monitoring consultation it certainly exists in your Lordships’ House.
My Lords, I support Amendment 65, in the name of the noble Lord, Lord Hunt of Kings Heath, for three reasons. First, these remain very broad and extensive powers to abolish or modify a public body. It seems essential that there should be the broadest of consultation obligations so that the Minister is properly informed before a decision is taken. Secondly, public consultation does not require considerable expenditure if modern methods of communication are used—the point already made by the noble Lord, Lord Maclennan of Rogart.
Thirdly, if these powers are to be exercised in relation to public bodies—we are talking about public bodies—surely it is right and proper that the Government should consider the comments of all sections of the public who feel that they have something to say. Indeed, if there were to be no specific consultation duty in relation to members of the public and nevertheless a member of the public, knowing of the proposal, submitted representations to the department, then I assume that the department would consider them and take them into account in reaching its conclusion. With respect, I do not share the view of the noble Viscount, Lord Eccles, who drew attention to Clause (10)(1)(g), which provides that the Minister must consult,
“such other persons as the Minister considers appropriate”.
It seems to me highly desirable that there should be clarity in the Bill that there is an obligation to consult members of the public rather than leaving it as a discretionary matter.
My Lords, I support the amendment in the name of my noble friend Lord Hunt and indeed the one referred to by my noble friend Lord Kennedy but I want to speak specifically to Amendment 66. First, I thank the Minister. At the last stage in this Bill, I moved an amendment relating to TUPE procedures. I had a quite lengthy meeting with the Minister and his officials and received a fairly clear letter, given that this is a complex area of law. Although there is still a bit of a grey area, I will the leave the issue of the exact procedures at that.
Amendment 66 relates to the staff of the public bodies we are referring to here and to the trades unions that represent them. However amicably we deal with the Bill, the Government must recognise that there is a suspicion out there that this Bill, which relates to quangos, is part of a more general attack on public sector employees, their terms and conditions, and their organisations. The Minister may deny that, but pronouncements by some of his colleagues and the media which support the present coalition give at least some justification to that concern. Therefore, a straightforward clause which makes it clear that when we are changing the nature of these bodies, there will be consultation with the staff and their recognised trades unions before the proposal is brought back to Parliament, would be a wise precaution. Like the noble Lord, Lord Pannick, I do not think that the general formulation effectively covers the need to ensure specifically that there is consultation with the employees and their representatives.
My Lords, this has been an interesting debate that has built on the progress that we have made since the Government started tabling amendments in Committee, way back in November when consultation was first discussed. I thank the noble Lord, Lord Hunt of Kings Heath, for moving Amendment 65 to set up the debate and the noble Lord, Lord Kennedy of Southwark, for his amendment on local government.
In speaking to Amendment 65, I will also try to deal with the other amendments in this group, Amendments 66 to 68. Amendment 65 would insert a requirement that the public are consulted on all proposals before an order is brought forward under the powers in the Bill. The Government support the principle behind this amendment, which is to ensure that the public are given an opportunity to make their views heard on the reform of public bodies. In many instances it will be entirely appropriate and desirable for the public to be consulted on the reforms that we are delivering using the powers in the Bill. As the noble Lord, Lord Hunt, will know from first-hand experience, the Government publish guidance for departments on best practice in consultation, the current code having been issued under the previous Administration, of which he was a part.
The one-size-fits-all approach in Amendment 65 would not result in a better deal for the public. Where a full public consultation is appropriate, the Government will undertake one. Clause 10 does not preclude public consultation, which will be undertaken where the Government consider it appropriate, followed of course by the extensive parliamentary scrutiny required under new Clause 11. The evidence on whether the Government will act in a responsible and proportionate way is already there for your Lordships’ House to see. Take, for example, the consultation document on reforming the Equality and Human Rights Commission. This has been published in full on the Government Equalities Office website, has been laid in Parliament and will stay open for responses for three months. This is very clearly a reform that affects the public at large, which is why the Minister for Equalities and the Home Secretary decided to run a full public consultation.
However, the noble Lord cannot in all seriousness claim that it would be appropriate or proportionate for a full public consultation to be undertaken on the announcement and detailed implementation of the proposal to abolish Food From Britain, with all the associated costs of ensuring that such a consultation was accessible, widely distributed and adequately publicised, in line with best practice. That is why the Government believe that there should be adequate discretion in Clause 10 for the Minister to be able to carry out a consultation that is proportionate for a particular reform. I am not advocating complete discretion, and the Government have made it clear repeatedly in Committee and on Report that the powers of the Bill should be offset by clear and meaningful standards. Clause 10 plainly sets out these safeguards by defining a statutory minimum that the body or office-holder, and where appropriate the devolved Administrations, and the Lord Chief Justice must all be consulted.
My noble friend Lord Maclennan of Rogart rightly emphasised the importance of this consultative process. The Minister must comply with the Clause 10 requirements, and the details of the consultation must be included in the explanatory document that accompanies the draft order and proposal for Parliament to scrutinise. This is the point that my noble friend Lord Eccles made when he acknowledged his debt to the late Viscount Colville in the scrutiny of statutory instruments in the Merits Committee. It is not absolute discretion but, importantly, it builds in sufficient flexibility to ensure that on defunct bodies the Government are not compelled to run meaningless public consultations that incur unnecessary costs when we can least afford it.
Amendment 66, in the name of the noble Baroness, Lady Royall, runs into two similar issues in that it would put into statute something that in many cases is unnecessary. First, there are cases in which consulting staff would not be appropriate, such as where the proposal is a change to constitutional arrangements that would alter the name or method of appointment of the chair. In this case, Amendment 66 would add an additional burden without producing a meaningful improvement in the consultation process.
Secondly, the noble Baroness’s amendment cuts across existing requirements to consult and inform in specific circumstances. This includes TUPE and redundancy—the noble Lord, Lord Whitty, referred to the discussions that we have had on these—where there is already a requirement to consult trade unions, which was designed to build in a statutory guarantee for the situations in which such a requirement is appropriate. The problem with the amendment is that it would go beyond already well established requirements and codes of practice without considering whether such an additional burden was appropriate. I seek to reassure the noble Lord, Lord Whitty, that the Government are mindful of our obligation to consult trade unions where it fits the requirements of the Bill and to account for that in the explanatory document that we produce with the statutory instrument.
It is a similar story with Amendment 67 in the name of the noble Lord, Lord Kennedy. There would be clear cases in which the groups and organisations captured by his amendment should and would be consulted. However, that does not mean that putting such a provision into the Bill would change the instances in which such groups or organisations are consulted in practice.
Amendment 68 in the name of the noble Lords, Lord Hunt of Kings Heath and Lord Judd, and my noble friend Lord Greaves—neither the noble Lord, Lord Judd, nor my noble friend are here, and I continue to wish my noble friend a speedy recovery—would require a Minister to publish the proposed reform on their department’s website, in the event that a full public consultation was not required.
I do not believe that such a requirement is necessary in the Bill. There are a number of ways of seeking input from interested parties that may or not include publication on a departmental website. It would obviously be a very effective way in a major consultation, but it would be likely to vary over time. It is therefore not possible or appropriate to place these as a statutory duty in the Bill. The code of practice—the noble Lord, Lord Hunt of Kings Heath, is very familiar with it—encourages departments instead to,
“be clear about the reasons why the methods being used have been chosen”,
and further guidance supporting the code provides useful information on alternative forms of engagement that extend beyond simple publication on a website and that may be seen as a soft option when active engagement with stakeholders is preferable.
Consultation is an important issue and one about which the Government feel strongly. We believe that the amendments tabled and adopted in Committee, and which now make up Clause 10, represent a sensible and proportionate way to manage the diverse array of reforms that are being facilitated by the Bill. The amendments in this group, each in their own way, reduce the flexibility of the way in which consultations can be run, in many cases without substantively improving the quality or breadth of consultations.
Amendment 65 specifically requires that all consultations are full public consultations, regardless of whether such a consultation is necessary. It would therefore guarantee that all consultations incurred substantial costs without providing any meaningful improvement to the legislative scrutiny process. Clause 10, as drafted, provides a proportionate obligation to consult on the proposals to reform public bodies. I hope I can reassure the noble Lord, Lord Pannick, that it also provides that Ministers are accountable for that consultation process in the Explanatory Memorandum that they lay with any statutory instrument. Unless the noble Lord feels that the public need to be consulted, for example on the abolition of the already defunct Food From Britain, I urge him to withdraw his amendment.
My Lords, I am very grateful to the noble Lord, Lord Taylor, and all noble Lords who have spoken in this debate. My noble friend Lord Whitty made some very important points about staff and trade unions, as did my noble friend Lord Kennedy about local government.
The noble Viscount, Lord Eccles, referred to the Merits Committee. As the first chairman of the Merits Committee I echo his remarks and the tribute he paid to the late Viscount. I recall that looking at the consultative process undertaken by departments was a very important part of that scrutiny. I certainly take his point that any order that a Minister wished to make under this Bill, when it becomes law, would go through scrutiny by committees of your Lordships’ House. His argument would have more power were the noble Lord, Lord Taylor, to intimate that he is prepared to accept my later amendment on the use of the super-affirmative procedure, but, alas, I do not see the noble Lord quite ready to intervene on that point.
The noble Viscount is certainly right about Clause 10(1)(g). It allows a Minister to consult “such other persons”, but should that be left to ministerial discretion? As the noble Lord, Lord Pannick, said, the powers contained in the Bill are considerable. As a result, there need to be safeguards. I believe that automatic public consultation is one of those safeguards.
The Minister said that he supported the principle behind my amendment and that in many instances it is entirely appropriate and consistent with best practice, but he also said that there may be circumstances in which public consultation is not appropriate, and he instanced an organisation that may have been in abeyance. Surely the response to that comes from the Minister’s friend, the noble Lord, Lord Maclennan, and the noble Lord, Lord Pannick, who say that consultation in those circumstances can be proportionate. Therefore, there could be a very modest public consultation in those circumstances.
My point to the Minister is this; notwithstanding the many safeguards that have now been built into the Bill, many organisations are listed over which a Minister will have considerable authority because of the order-making power that the Bill gives them. Because of that, there should be a clear statement in the Bill that there must always be public consultation. In some instances it will be a major consultation, but in others it will be very modest. The Minister would find that there would be greater confidence in the Bill, and in the process of review, if there were always public consultation. It is something that we should test in your Lordships’ House.
Amendments 66 to 67 not moved.
68: Clause 10, page 5, line 40, at end insert—
“( ) Where the responsible Minister considers that the changes proposed do not warrant a full public consultation under subsection (1), the Minister must publish a copy of the proposal on the website of the relevant government department or make it otherwise publicly accessible.”
I support the noble Lord’s observation. The Minister, in his response to the previous amendment, agreed that a full public consultation would be highly desirable in many, if not most, circumstances, but in some cases it would not be appropriate to have a full public consultation, and it seems to me that Amendment 68 deals precisely with that point.
My Lords, I am under instructions to resist—I think that is usually the phrase that is used. However, I understand the arguments that have been put forward by noble Lords to have a requirement, where public consultation does not take place, that at least the proposal is put on the website. I think that the Government are in a position to consider this and, if necessary, will bring forward an amendment at a later stage.
Amendment 68 withdrawn.
Amendments 68ZA and 68A not moved.
Clause 11 : Procedure
69: Clause 11, page 6, line 3, leave out “may” and insert “must”
My Lords, we come to a very important group of amendments that is concerned with the procedure-making processes in Parliament when it comes to an order. As we have already debated, it is very important, when a Minister seeks to make an order, that it enjoys stringent parliamentary scrutiny. We welcomed the Minister’s amendments to introduce greater scrutiny than was envisaged when the Bill was first drafted. There is no doubt that what he describes as extensive parliamentary scrutiny is an advance. However, I want to encourage him to go a little further.
The Minister will, of course, be aware of the advice that your Lordships’ House has received from the Delegated Powers and Regulatory Reform Committee, which reported to the House on four occasions. I refer noble Lords to the committee’s report of 7 March that reminded the House of the key differences between the noble Lord’s amendment that has been made to the Bill and my amendment. The report said that there are two key differences between the Government’s enhanced procedure and the provision in the Legislative and Regulatory Reform Act 2006 that introduced the super-affirmative procedure on which my amendment is based.
The committee said that under the 2006 Act,
“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself”.
The committee also reminded us in March that under the 2006 Act,
“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.
The committee pointed out that this matter would also enjoy enhanced scrutiny.
When we discussed this matter in Committee, at col. 1723, the noble Lord, Lord Taylor, essentially said that because Schedule 7 had been removed, the scope of the Bill had been significantly narrowed and a more restrictive scrutiny procedure was therefore required than that in the regulatory reform Act. I understand where the Minister is coming from, but I do not agree with his conclusions. Even with the safeguards that the Minister has introduced and the removal of Schedule 7, the Bill still gives considerable powers to Ministers. When one looks through the Bill, the powers to abolish, to make changes to the financial arrangements, and to change the governance arrangements are considerable. The use of the super-affirmative procedure is, therefore, entirely appropriate.
I know that the noble Lord’s department has said that it believes that the super-affirmative procedure that I propose would risk derailing the Government’s reform programme, but I want to make it absolutely clear that I support the regular review of these public bodies. I have never had any difficulty whatever with the principle of the Bill. No public body should believe that it is entitled to exist for all time. It is right that public bodies should be reviewed. I have no problem at all with that principle in the Bill. However, we come back to the point of ministerial powers. I remember being reminded, when I was sitting or standing where the noble Lord is sitting at the moment, that ministerial powers need to be fettered. Under the Bill, many organisations doing public work can be affected by the use of ministerial power. Parliament needs and deserves the most stringent scrutiny powers possible. The super-affirmative procedure is not new. It is used within the confines of the Legislative and Regulatory Reform Act.
The noble Lord says that if we were to pass such an amendment, it would have an impact on the other place and its procedures. My argument is: let us see. Let this House pass the amendment, agree to the super-affirmative order and see how the other place responds. We are not at the last point of this Bill’s journey through Parliament and it would not be unreasonable for noble Lords to express the view that orders under the Bill should be considered under the super-affirmative procedure. I beg to move.
My Lords, I hope that the noble Lord, Lord Hunt, will forgive me if I do not go down the path of discussing his amendment in detail, as I am the chair of the Delegated Powers and Regulatory Reform Committee. However, I will say that this group of amendments gives us the chance to discuss the wider issue of parliamentary scrutiny arrangements of orders made under the Bill.
The House should not try to pin down the Minister today on exactly how scrutiny under the Bill should be conducted, particularly as the other place has yet to consider the Bill. However, it is important to set out a few questions that should be asked at this stage. Under the Bill, every draft order has a 40-day period during which a committee of either House looks at it. This committee must report on the order within 30 days. Under the revised Bill, the committee can require an order to undergo a full, enhanced scrutiny procedure. At present, the Lords committee charged with looking at all orders coming before the House is the Merits of Statutory Instruments Committee, which has been spoken about a lot this afternoon. It may draw orders to the attention of the House either because they may be of interest or because they may imperfectly achieve the policy objective. The committee is already busy and meets nearly every week. The first question might be whether this is the right committee to look at orders made under the Bill, whether under the enhanced scrutiny procedure or not.
In the Delegated Powers Committee’s fifth, sixth and 11th reports, the enhanced scrutiny procedure on orders under the Bill was compared, as the noble Lord, Lord Hunt, said, to the super-affirmative procedure in the Legislative and Regulatory Reform Act 2006. As this is the nearest procedure to the one we are discussing, it may be worth restating that legislative reform orders come before the Delegated Powers Committee, but are significantly different in character from orders under the Bill. The two main differences are that the LRO procedure is not used for highly controversial matters, and that if a committee of either House recommends that no further proceedings are taken on a draft order, then proceedings are automatically stopped unless the House decides otherwise. The committee has looked at only 12 LROs since the 2006 Act.
However, the Bill is likely to generate a lot of work—and, at some point, an entirely new procedure. Therefore, it must be decided quite soon which committee should undertake the enhanced affirmative procedure if it is required. Although this will, of course, be a matter for the Procedure Committee and ultimately for the House, I believe it is worth thinking about now.
There are some fundamental questions to be asked about how a committee should carry out its work before either House decides on a suitable committee structure. Should it simply review the evidence taken during the consultation? Should it take evidence itself? That could be an expensive process. The only purpose in the Bill is, as we heard this afternoon, to improve the exercise of public functions, although it must have regard to the objectives of achieving increased efficiency, effectiveness and economy—the Minister’s triplet—and securing appropriate accountability to Ministers. Suppose the committee decides that the broad purpose of improving the exercise of public functions is not met, will the Minister think again? After all, he only has to have regard to a committee’s recommendations. Obviously the order will have to be passed by both Houses and there is always the possibility of it being voted down. That this House is reluctant to do this should not be taken for granted.
Turning very briefly to the procedure in the other place, the two Houses have different ways of looking at statutory instruments and different committee structures from each other. The only joint committee in this area is the Joint Committee on Statutory Instruments, which just looks at the vires of an instrument with the parent Act. Although a superficially attractive idea, a joint committee is very difficult to establish. I understand that this is too early for any hard-and-fast decisions on how orders made under this Bill are to be scrutinised by Parliament, but it is not too early for Parliament to be thinking hard about the implications of the proper scrutiny of the delegated powers in this Bill.
My Lords, my Amendment 69AA is the second amendment in this group. I think that there has been some inadvertent misgrouping in this complicated Bill and I suspect that this amendment would have appeared more happily in the first group of amendments, alongside government Amendment 69A. However, with your Lordships’ indulgence, and since I have no intention of putting this to the vote, I will proceed to seek to persuade the House that this small amendment would serve a large purpose.
In the first group of amendments, the Minister laid great stress on the fact that no order can be made unless there is an Explanatory Memorandum produced so that Parliament can judge what is going on with regard to the order. Earlier today, the Government got through this House with approbation Amendment 60A, which changes Clause 8 and introduces various specific qualities that must be met by any order before it can be enacted: effectiveness, efficiency, economy and securing appropriate accountability to Ministers. Those are quite expressly, by the provisions of Clause 11, to be included in the Explanatory Memorandum. Not included in the Explanatory Memorandum, but a fundamentally important aspect of the protections in this Bill, are the provisions of Clause 16(3). I will read it because it is quite short. It simply says:
“Provision made by an order under the preceding provisions of this Act must be proportionate to the reasons for the order”.
I do not think that anybody sitting here tonight will need convincing that proportionality is one of the most important pillars on which good legislation is built, but there is no reference to proportionality in the provisions of the Bill dealing with the Explanatory Memorandum.
That is still the case after the amendments have been read into Clause 11. Clause 11 as amended requires the explanatory document to introduce and give reasons for the order. The first of those in the earlier government amendment is that,
“the order serves the purpose in section 8(1)”.
There is no reference to Clause 16(3). In simple terms—I do not think that this is contentious; indeed, it seems to me to be an improvement in the Bill, whichever way one looks at it—I want a requirement that the Explanatory Memorandum must also include the Minister’s justifications in terms of proportionality for introducing the order, so that that can be considered along with efficiency, effectiveness, economy and accountability. Whichever way that plays out in the Bill as it will emerge tonight, I hope that my noble friend will accept the amendment in principle so that it can be brought back at Third Reading in the proper place.
Amendment 96 is in my name and I feel that, if the mood of the House were different, I could have pushed it pretty hard. I shall briefly explain why I think that it is a matter of importance to the Bill and to our general approach to orders. At the moment, with almost no exceptions, orders are unamendable in this House. If we are unhappy about them, we can only vote them down, in which case we are breaching the convention that we should not undermine something that has come from the Commons where the Commons cannot have a second say. As your Lordships know, if we vote an order down, that is the end of it and the House of Commons has to start the process again. That is an unsatisfactory position on orders and something to which—unless the Minister accedes to the amendment today—I am sure the House will return when we consider Lords reform. The way that this is operating is not right.
When I was a Northern Ireland Minister, most legislation was done by order. Sometimes, the House would be faced with an order 40, 50 or 60 pages long—longer than many Bills—and yet it was totally unamendable. People in Northern Ireland were pretty fed up, saying, “There is a major change in our housing policy and it is going through without an opportunity for it to be debated properly here”. Now, of course, they can do it as they wish in Stormont.
We know that many orders are to give effect to EU legislation. If I understand the Government’s EU Bill correctly, there will be fewer of those in future, as they will be replaced by primary legislation. The EU Bill has not gone through and perhaps that part of it will not—I hope that it will not. If orders to give effect to EU legislation were amendable, we would save the Government a lot of effort with the need to have primary legislation and, at the same time, achieve the objective of giving this House a proper say.
I think that these arguments are pretty sound. I remember that, when I was in the Commons, we found a Bill under which there was an order-making power and, for reasons that totally escape me today, it was possible to amend that. We wondered at the time why Parliament could not amend orders. This seems a very reasonable proposition. I do not think that it would open the floodgates and it would make sense—nowhere more so than in this Bill. A lot of the argument about this Bill is due to the fact that, when the day comes and the Government table the order to give effect to changes to many quangos, we will have no chance to amend it. There may be consultation beforehand or other methods, to which my noble friend Lord Hunt referred, but, on the whole, we will not be able to make an amendment. This is such a simple proposition that I do not understand why it has not been adopted long ago and why it cannot be adopted in the Bill.
Can my noble friend clarify one important point? As I understand the amendment in the name of my noble friend Lord Hunt, proposed new subsection (10) in effect gives the House the power to amend an order by agreeing to a recommendation by a committee that an amendment should be made. Does that not meet the point that my noble friend is trying to make in his amendment?
It does partly, but Amendment 96 is a little stronger, as it would mean that, when faced with an order, we could simply amend it without any preconditions. If I understand it correctly, the other amendment has a precondition in it, whereas this one does not. My argument is that that would be right not just for this Bill but for the run of orders.
Amendment 69 seems unexceptionable. I do not understand why the word “may” is included in Clause 11(1) and the word “must” is in Clause 11(2). I do not understand why there is a need for any discretion in that area. The clause refers to a situation in which,
“after consultation under section 10 the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
If he is satisfied with all that, he or she should have the obligation to lay a draft order and explanatory document before Parliament. Unless the Minister has some special reason why he needs to retain a discretion, I agree with the noble Lord, Lord Hunt of Kings Heath, on that narrow amendment.
My noble friend Lord Phillips of Sudbury’s Amendment 69AA is on proportionality. This is a bit complicated, but I hope that I have got it right. I like to think that the noble and learned Lord, Lord Mackay of Clashfern, and I are godparents to Clause 16 and, especially, to including proportionality. The principle of proportionality simply teaches that you must use necessary and proportionate means to accomplish a legitimate aim. The Minister is proposing to leave out from Clause 11(2) the words,
“including reasons relating to the objectives in section 8(1)”,
so that it would just state,
“introduce and give reasons for the order”.
Another amendment changes Clause 11(2) to include a reference to purpose in what will be Section 8(1).
The Minister will explain all this, but the reason for leaving out the words,
“including reasons relating to the objectives”,
in Clause 11(2) is presumably that they are unnecessary, because the reasons will be the reasons and, once the reasons are given in the Explanatory Memorandum and otherwise, one has in the Bill the point that my noble friend is making—the Minister will have to state the reasons for the order and then under Clause 16 he or she will have to comply with the principle of proportionality. It therefore seems to me that, subject to drafting points, the substance of what my noble friend Lord Phillips is seeking is already catered for. The principle of proportionality is fully embodied in the Bill because it requires the Minister to state the reasons. When the Minister legislates by order, he or she must do so in a way that is proportionate to achieving the legitimate aims in the reasons. I hope that that is more or less intelligible. I think that I know what I am saying, but others may not. Anyhow, that is the best I can do.
The case made by my noble friend Lord Hunt in respect of the super-affirmative procedure is extremely strong. There is a fundamental point of principle here: do we take ourselves, the House of Lords, seriously as a legislature? If we do, I do not believe it right that we should delegate the degree of power that we are delegating to the Executive without retaining more of the power of control simply to debate and amend the proposals that come forward in respect of the merger, abolition or reconstitution of public bodies. The critical factor at stake is that all these bodies were established by statute. They are all important bodies—you just need to read the schedules to see the importance of the bodies listed—and they were all subject to lengthy debate in Parliament when they were established. All that my noble friend Lord Hunt is seeking to do, with the full authority of the relevant committee of the House, is to give the House a somewhat larger power to amend orders and to require proper debate and a proper account by the Government to Parliament where they are not minded to take account of that debate and any amendments that are proposed. It seems to me that, if we are not prepared to stand up for the rights and responsibilities of this House to that extent, we are quite wrongly denuding ourselves of our proper responsibility as a legislature.
I can only agree with what my noble friend Lord Adonis has just said with regards to Amendment 71. However, I rise in the regrettable absence of the noble Lord, Lord Newton of Braintree, to speak to Amendment 69D. This refers to the functions of those bodies that are to be abolished in Schedule 1 and would require the Government to give a clear indication of which functions are to be retained and by whom they are to be carried out.
I draw attention to this and have become active on this Bill because of an interest of mine as the former chair of Consumer Focus. Consumer Focus is still in Schedule 1, but, as I have previously argued, that is probably the wrong place, in that the Government have indicated that they want to transfer its functions rather than to abolish them. While Consumer Focus remains as a body to be abolished, it is right that the legislation should require the Government to specify to whom its functions should be transferred. The Government’s current indication is that they wish to transfer the majority of its functions to Citizens Advice and some of its functions to a body relating to Northern Ireland law, the Consumer Council for Northern Ireland. Citizens Advice is a charity incorporated under English law and separately under Scottish law. It is not at all clear that the Government will actually transfer all those functions to Citizens Advice or, pre-empting an amendment that the Minister will move in the last group, whether Citizens Advice would necessarily agree to take on those responsibilities; as an independent charity, it has a right to refuse to do so.
Developments in Scotland and Wales may well also result in somewhat different arrangements being set up after the forthcoming elections. Indeed, arguments relating to the regulated industries are different from the general run of consumer issues. Given all that uncertainty at this stage when we are passing the primary legislation, it is surely incumbent on Ministers or future Ministers to give a clear indication to Parliament of where the current functions set down in primary legislation are going to go or whether they are going to lapse. The amendment in the name of the noble Lord, Lord Newton, would achieve that objective and therefore I see no reason why the Government should not accept it, if not tonight then at some later stage.
In the mean time, I endorse the general view expressed by my noble friends Lord Adonis and Lord Dubs and by the noble Baroness, Lady Thomas, that at some point we are going to have to look at the way in which we deal with the secondary legislation under this Bill, because the normal form of so doing will not be adequate for many of these changes.
My Lords, I am not convinced that the additional procedures set out in Amendment 71 are necessary. I should stress that since I am a member of the Delegated Powers Committee, and a board member of an organisation that is referred to in the Bill, I am speaking in a personal capacity.
Because of the way in which the powers of the Government have been limited as the Bill has passed through the House and the Government have introduced amendments, the proposal that is now set out in the Bill for an enhanced affirmative procedure does what is required. It gives committees the opportunity to state issues and make the House and the Government aware of those issues, and gives the Government the opportunity, which they do not have normally, to amend the order to take account of those concerns. That is an appropriate and proper amendment.
However, I am nervous about transferring more power to any committee for it, of itself, to seek to amend these orders. Moving power from the Floor of the House to those committees would take the role of committees further than it should be taken. As I see it, the role of the committees works well when they are advising the House and they are raising issues. Generally, they deal with such contentious areas—
Would the noble Lord be prepared to give that power to the House as a whole, because at the moment there is no other means of amending a statutory instrument? If he is not prepared to give that power to the House as a whole or to a committee, he is not prepared to accept that the House has any power to amend a statutory instrument, which is the central point of principle at stake in this amendment.
I thank the noble Lord for his intervention. I was going on to say that, if there were to be a change in procedures, the change would out-favour the one recommended by the noble Lord, Lord Dubs, to enable that debate to take place on the Floor of the House. However, I am reluctant to see a committee venture into areas that became highly controversial and that moved outside the narrow debate around the appropriateness of the regime and its constitutionality, and end up, in effect, having votes in committees that should be votes on the Floor of the House. It would be a wrong step to try to move committees into taking that view.
Given the way in which orders are dealt with, there is an argument for considering the suggestions made by the noble Lord, Lord Dubs. A more significant issue is whether we ought to have and exercise the power genuinely to vote on these orders. Frankly, if we do not, it is all a bit of a charade anyway. Therefore, I support those who have suggested that it is worth, in the wider scope of things, looking at reforms to procedures to allow amendments to be made and voted on on the Floor of the House and reconciled with the other House. However, that is not achieved by the Opposition’s amendment to move to a super-affirmative procedure, which would create undesirable complications. The way in which the Government have proposed to deal with it is the best compromise within the existing structure of orders.
My Lords, on Amendment 69 and “must” instead of “may”, it is a normal convention on the whole that Ministers, if they have the power to do something, are left with that, but it is not a major point one way or the other. However, as for the enhanced procedure and the super-affirmative procedure, that is primarily a matter for Parliament to consider generally, not just in relation to the Bill. The way in which I have seen this Bill develop suggests to me that everyone in the House is agreed that there should be a procedure for a review of public bodies from time to time. The noble Lord, Lord Hunt, has made that very clear in moving this amendment.
We have gone a long way to developing that kind of procedure for the future, because the Bill has in it the power to continue with amendments to the schedules. It now provides for certain entities in the schedules to drop out after a time—a type of sunset clause for the schedules. Therefore, you can always bring one in. If and when another review is required—who knows, it might not be until another Government come along—the procedure that has been laid down here would work perfectly well simply by introducing a public general statute to amend the schedules. It might be among the shortest statutes ever proposed, which of itself would be a good thing.
Here we have a situation whereby, before the procedures start, you have to get the body in question into a public general statute such as the one that we are considering now. Parliament has already used its power to allow that; what the procedure should be thereafter is a matter to work out in practice as the Bill goes forward. I am not in favour of enacting the super-affirmative procedure where Parliament has already decreed the particular subject matter of the Bill. I prefer that that is left. As the noble Baroness, Lady Thomas of Winchester, suggested, this whole subject needs to be considered in due course, but not as part of the present Bill. After all, we have done a fair amount on the Bill already and there is a limit to what is practically possible.
My Lords, the noble Lord, Lord Adonis, expressed the view that there should be an opportunity for parliamentary review when the Minister has decided that the situation is one in which he wants to make an order. Imagine the situation; there has already been consultation with whoever are the proper people to be consulted and, in the light of that, the Minister has concluded that it would be appropriate to make an order. What we are contemplating now, under Amendment 69, is the fact that under the Bill the Minister has time to consider whether he will tell Parliament what he wishes to do, complying with the obligation of setting out an explanation of what he is up to and what the evidence tells him, or whether he will just not tell the Houses what his intentions are, if this is going to be embarrassing or if he does not have the time. That is a discretion that ought not to be conferred. If the consultation has led the Minister to a particular conclusion and he is about to make an order, it is entirely appropriate that we, as Parliament, retain the power to look at his reasons and form our own view about the matter.
My Lords, I think it was Hegel who got us all into the categorical imperative of “must”. I have certainly tried to organise my life on the basis of using the word as infrequently as possible, but I defer to more expert opinions as to whether it should be “must” rather than “may”. I would like to emphasise the point, which was made much more elegantly than I can by my noble and learned friend Lord Mackay of Clashfern, that we are considering this Bill. I, too, have very strong views about the way in which orders and statutory instruments are laid and the way in which the House considers them.
In thinking about that, my mind goes back to home information packs and the big casino in Manchester. It is not unknown that this House decides that it is not going to live with what at that time was an ordinary affirmative order rather than a super-affirmative order, but Amendment 71 is in danger of over-elaboration. If both Houses of Parliament take Clause 11 as it is in the Bill at present, they have the opportunity for full and adequate scrutiny and, by the recommendations of committees, to put Ministers in the position where they will have to bring forward an amendment.
On the question of amendments, the point is well illustrated by the Bill. Not many amendments are moved by Members of this House that, even if they are approved, remain as they were on the day of approval. They need to go back to the parliamentary draftsmen. The committees of this House do not have parliamentary draftsmen. As an amending and revising Chamber, we do our best work when we persuade the Government that they should take an amendment away and make it into something that will really work as legislation.
Very briefly on the matter of over-elaboration, the amendment of the noble Lord, Lord Hunt of Kings Heath, would make us go back to the consultation and the representations made in that consultation three times—not just the first time because the Minister must lay it out a second time and then, as in the proposed subsection, a third time. That is overly repetitious, because unless it is also specified that something should be put out to a new consultation, the process will be overly elaborate.
I should like to make one other point. If a draft order is referred to committees of both Houses and those committees have the power to put forward amendments but those amendments are in disagreement, it will take a very considerable time to sort out that kind of disagreement between the two Houses. Given that many of the things that will be done when this Bill is enacted are in fact pretty straightforward, simple and not very controversial, to over-elaborate the process is a mistake.
I rise briefly to say that I agree with my noble and learned friend Lord Mackay of Clashfern. The issue raised by Amendment 71 is of great importance and ought to be considered in the wider space of the practices of the House as a whole. It does seem anomalous that we cannot amend secondary, subordinate legislation, and therefore it would be attractive if proposals could be referred to committees for consideration because it could be a time-saving approach. It would allow committees to consider in detail matters that cannot effectively be considered in a debate on a statutory instrument that lasts one and a half hours. However, we have some of that process in the House already.
The wide-ranging effects of Amendment 71 would delegate too much power to committees. I take the view that a case still has to be made that committees should have binding authority to prevent legislation being considered on the Floor of the House. That, as I understand it, is what this amendment could result in. It is also not entirely clear if the committee considering whether or not a draft order should be approved under proposed subsection (9) would be an existing committee that took it upon itself to do so. I think that more than one committee has that power, or a power to consider draft orders. It might be the intention of the noble Lord who has moved the amendment that this should be for a special ad hoc committee and not for the Select Committee on Delegated Powers and Regulatory Reform. That is not made clear. However, if an ad hoc committee had to be set up, that would be another stage in the process of deciding whether the measure was of sufficient importance to require that to be done.
This is not a matter to be decided on Report, however important it may be—I am quite clear that it is immensely important. It should be referred for wider consultation in the House, perhaps by the Procedure Committee. This is also a matter that should be considered in conjunction with another place because both Houses have an interest in it. It might make more sense to do that in a Joint Committee.
My Lords, this has been an important debate and probably gets to the nub of how this particular Bill can be handled by Parliament and how the secondary legislation which it empowers can be properly scrutinised. I thank all noble Lords who have taken part in it.
In particular, I hope I can reassure noble Lords that the bespoke scrutiny process that the Bill provides for is the proper one for Parliament, giving Parliament proper input into the shape of the secondary legislation. As noble Lords will know, it has been specifically designed for the Bill and included in government amendments. I am grateful for the support of my noble and learned friend Lord Mackay of Clashfern, who has been prepared to give advice on the Bill and the particular constitutional challenge that it has presented, and for the support of my noble friends Lord Blackwell and Lord Eccles for the way in which they have recognised that the process that now exists in the Bill provides for a proper scrutiny process.
I start with Amendment 69, which was first debated in Committee on 9 March. I do not apologise for in effect repeating my remarks from that debate as this amendment is quite technical in nature. It would make it explicit that a Minister wishing to make an order following a period of consultation “must” lay before Parliament a draft order and explanatory document. While Clause 11 states that a Minister “may” lay a draft order and explanatory document, it would in practice not be possible to make an order without following this procedure. Our current drafting reflects the fact that, following a period of consultation, the Minister is not obliged to proceed with the proposal. To my mind, this appears right and proper. I think my noble friend Lord Lester of Herne Hill indicated that this was his interpretation of the current wording.
On Amendment 69AA, tabled—
My Lords, I am grateful to the Minister and sorry to interrupt. I was trying to grasp why one needed a discretion, and the Minister has indicated that one needs one because not every order will be required to go through this procedure. That is why it says “may” and not “must”. If that is the position, then I understand it.
My Lords, I am sorry, too, but would like this to be clarified. At the moment, the clause says:
“If after consultation under section 10 the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
The Minister has already decided, in the light of consultation, that he is going to proceed with the order. That is not now in doubt because he,
“considers it appropriate to proceed”.
Surely it should then say that the Minister “must” lay that before Parliament. I do not understand why it is not “must”.
I make my point quite simply: if he does not lay an order, he will not get it approved. It is as simple as that; that is the nub of the issue. In order to get the change he requires, he has to lay an order and “may” is the correct word to use, in parliamentary terms, as the noble Lord will know.
I am in more of a muddle now than I thought I was. Clause 11(1) proceeds on the basis that,
“the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6”.
That is the premise. If that is the premise, surely the Minister will have to lay a draft order and an explanatory document. If that is the position and there is no scope for discretion at that stage—because he or she has already made the determination that it is appropriate to proceed—I do not understand why it does not say “shall” or “must”. It says “must” elsewhere and it seems to me that it is a situation where it is a “must” and not a “may”. Maybe I have got it wrong.
My Lords, the point that is covered by “may” rather than “must” is that, in the light of the consultation, even if the Minister wants to make an order, he may well think it is right to do something else first; for example, have further consultations and make modified proposals before he proceeds with the order. That is why, in this context, the word “may” is often used when many of us might have thought it was going to happen anyway. That is the reason and I believe it is a good reason.
My Lords, I hate to disagree with a noble and learned friend and former Lord Chancellor, but I have to disagree with the noble and learned Lord, Lord Mackay. It is quite clear that this is posited on the basis that, having had the consultation, having considered all things, the Minister then considers it appropriate to proceed with the making of an order. That is perfectly clear. He is then en route to making an order. It then goes on to say,
“the Minister may lay before Parliament”,
but surely, once the Minister is committed to making an order, he must lay it before Parliament.
I am sorry to respond, because this is Report and it is the last thing I want to do, but it seems to me that the point is that it says, “make an order”, it does not mean to say that it is an order in anything like the form that is thought of so far. The consultation might well open up new possibilities altogether. The Minister wants to make an order, he wants to proceed, he may do it this way or he may do something else in the way of further consultation and then go ahead with an order different in substance from what he had proposed in the original consultation. That is the reason for it.
As it is Report and we are not supposed to be arguing in this way on these matters, I hope the House will accept what I said. This is the advice that I have received and, indeed, the House has received from a number of noble and learned Lords—well, one noble and learned Lord and other noble Lords who might also be learned, but not in the parliamentary sense.
I move on—I will be on safer ground, perhaps—to look at Amendment 69AA, tabled in the name of my noble friend Lord Phillips of Sudbury. It would require an explanation of why a Minister considers the order to be compatible with Clause 16(3), which refers to the need for an order to be proportionate to the reasons for it. We have not included such a provision within the Bill on the grounds that the explanatory document accompanying an order will set out the reasons for that order as a requirement of Clause 11. It will then be for Parliament to decide whether to approve an order and, if necessary, for the courts to assess subsequently whether an order is proportionate in relation to the reasons given.
As we know, my noble friend Lord Newton is not here, but I am pleased that the noble Lord, Lord Whitty, spoke to my noble friend’s amendment, because Amendment 69D would require a Minister, when bringing forward an order under Clause 1, to set out whether any of the functions of a body to be abolished would continue and if so, where they would be exercised in future. I consider this amendment to be unnecessary as such information would as a matter of course form part of the consultation on the proposal required under Clause 10 and the reasons for the order required by Clause 11(2)(a), so we are back to the process of consultation and the explanatory document providing for that.
In connection with Consumer Focus, I remind the noble Lord that Clause 1 allows for the transfer of functions. We will be consulting on our proposals specifically in respect of Consumer Focus, as I have explained, later this year.
The effect of Amendment 96 in the name of the noble Lord, Lord Dubs, would be to clarify the date at which an order made under the Bill, if amended by Parliament, would come into force. I remind the noble Lord that there is currently no facility in the Bill for orders to be amended by Parliament, and I do not propose that such a facility should exist. However, I remind him that, under the enhanced affirmative procedure contained in the Bill, a Minister is at liberty to lay a revised order following the 60-day period. The Minister can take account of representations from Parliament and elsewhere in considering the form of the order as it proceeds.
The wording of Amendment 96 appears to be drawn from the Civil Contingencies Act—that was well spotted by someone, but not me—which was designed to create a framework for dealing with emergency regulations that necessarily circumvent the usual channels of parliamentary scrutiny. In such a specific circumstance, the argument for the amendability of orders is of a different order, but I do not believe that the Public Bodies Bill is of a comparable nature.
I turn to the question of the mechanism by which Parliament will scrutinise these orders, and specifically to whether the very unusual form of super-affirmative procedure proposed by Amendment 71 in the name of the noble Lords, Lord Hunt and Lord Rosser, and the noble Baroness, Lady Royall, is an appropriate mechanism for the Bill. When we last debated this matter in Committee, the noble Lord, Lord Hunt, noted that I had been “forthright” in rejecting this proposal. I would not take issue with that assessment; I have told him privately of the red line that I see on this issue.
I am sure that by now the noble Lord is fully aware of the reasons why the Government will not accept this amendment. Accordingly, I ask the noble Lord to reflect on how far the Bill has come since we first debated this issue during the first Committee session. Since that time, a combination of the expert scrutiny of the committees of this House and a genuine willingness on the part of the Government to engage have led to a series of changes that have significantly restricted the scope of the powers that the Bill gives to Ministers. Government amendments on consultation and procedure have been accepted and now form part of the Bill, ensuring a robust and thorough scrutiny process. Clause 16 now firmly and objectively protects the necessary independence of some public functions—precisely those functions that had caused this House such concern during the early debates on the Bill. Schedule 7 and Clause 11, as was, have of course been removed, dramatically reducing at a stroke the scope of the Bill. The entries in the Bill’s schedules will now be sunset after five years, ensuring that bodies do not remain subject to the Bill’s powers in perpetuity. Lastly, and I take this to be most crucial, this House has thoroughly debated, in primary legislation, whether it is appropriate for each of the bodies in the schedules to be subject to the powers in the clauses to which those schedules apply. In some cases, this House has exercised its right to remove bodies from the schedules.
In this context, it is clear that the scope of the powers granted under this Bill will simply not be of the same order as those attached to legislation which has often been cited in comparison, such as the Legislative and Regulatory Reform Act 2006. I need not remind noble Lords that that Act gives Ministers a general power to amend primary legislation without any equivalent to the debates on the entries in the schedules we have had during the passage of this Bill. If Amendment 71 was accepted, a Select Committee of either House could veto or amend any order laid under this Bill, regardless of the fact that each House will have necessarily given its consent, through primary legislation, to confer a power on a Minister to make such an order in relation to the body or bodies involved. The Government cannot accept that, given this prior scrutiny and expression of the will of Parliament in primary legislation, a single Select Committee should thereafter be able to frustrate the order-making process in this way.
Under our own proposals, the draft order will have already been subject to appropriate consultation as set out in Clause 10, and the current procedure in Clause 11 gives both Parliament and its committees a full opportunity, if they desire it, to scrutinise the order and to make recommendations in relation to it before the order is approved. Following this scrutiny, it will be open to a Minister to amend the order or to withdraw it completely if appropriate. I remind noble Lords that by allowing for an extended scrutiny period, and providing the opportunity for committees of the House to make representations, our enhanced affirmative procedure captures much of the essence of a super-affirmative process set out in paragraph 42 of the Delegated Powers Committee’s 5th report.
Perhaps it is appropriate now to thank my noble friend Lady Thomas of Winchester and her committee for its series of reports which presented us with a considerable challenge with this Bill. Meeting that challenge has greatly improved the Bill and we owe a great debt of gratitude to her committee for the way in which it has scrutinised this legislation—it has greatly helped the evolution of this Bill. She made interesting comments on the way in which committees of this House might work in scrutinising the statutory instruments that might come up under this Bill. My noble friend Lord Maclennan of Rogart was correct. This is something that the Procedure Committee has to consider—it is not a matter for this Bill.
The Delegated Powers Committee’s 5th report on the Bill suggested that a provision for Parliament to amend secondary legislation would be extremely difficult to implement, particularly given the absence of a mechanism for resolving differences between the two Houses. However, my fundamental objection to Amendment 71 is that the Government, reflecting a manifesto commitment of both coalition partners and the coalition agreement, have taken the decision to reform public bodies. This is not a decision with which the noble Lord, Lord Hunt of Kings Heath, disagrees. He has been supportive of the process throughout. The Government brought forward a Bill in relation to these proposals which has received intense scrutiny in this House. The Government have, furthermore, worked with noble Lords to limit the scope of the Bill in a number of significant ways and devised a procedure that will allow for proper scrutiny of the detailed orders that follow. To impose a veto on these orders by a single Select Committee of either House and a capacity for Parliament to amend orders under this Bill is excessive, bearing in mind that Parliament will have given its explicit consent both to the Bill as a whole and to the inclusion of each separate body in the schedules through primary legislative process before any such orders could be laid.
I hope the noble Lord, Lord Adonis, will see that this is what makes this Bill somewhat different from the Regulatory and Legislative Reform Bill. We are dealing with specific proposals laid before Parliament in primary legislation. I am not opposed to proper parliamentary scrutiny of government policy; my approach to this Bill and the Government’s proposed enhanced procedures demonstrate that. However, I am opposed to a procedure that would not increase the quality of such scrutiny, but would endanger our ability to deliver the more efficient and effective system of public bodies that the public rightly expect. That was promised in the coalition agreement and has the support of noble Lords from all sides of the House and, indeed, from the Benches opposite. I therefore ask the noble Lord to reflect on the consequence of his position in the light of my remarks and to withdraw his amendment.
My Lords, I am sure that we are all very grateful to the noble Lord, Lord Taylor, for his extensive response to this debate. I will make three short points. The noble Baroness, Lady Thomas, is right to raise the wider question of how secondary legislation is dealt with in your Lordships’ House. The Royal Commission on Lords Reform looked at this extensively. One of the outcomes was the development of the Merits Committee but I am sure we need to go further. I hope that when draft legislation on House of Lords reform finally reaches us, we will see that there has been some discussion of that matter. I do not believe you could elect a second Chamber, or make proposals to do so, without looking at the implications for secondary legislation.
On the question of “may” and “must”, I have looked again at the wording of Clause 11. This order falls to be made only after the Minister considers it appropriate to proceed with the making of an order. On that basis, the word should be “must”. On the question of Amendment 71 and the super-affirmative procedure, I accept that the noble Lord, Lord Taylor, has tabled several welcome amendments to improve the Bill and allay many concerns. I just say to him that, none the less, this Bill gives Ministers considerable powers to amend primary legislation through what can be dramatic changes to a number of the public bodies listed in the Bill. On that basis, it is right that Parliament should assert to itself the ability for strong and robust scrutiny. My super-affirmative proposition allows that to happen. I very much hope the House will support me in that regard. I wish to test the opinion of the House.
69A: Clause 11, page 6, line 8, leave out from “order” to end of line 9
Amendment 69A agreed.
Amendments 69B and 69C
69B: Clause 11, page 6, line 10, after “that” insert—
“(i) the order serves the purpose in section 8(1), and”
69C: Clause 11, page 6, line 11, at end insert—
“( ) if the order contains provision made by virtue of more than one entry in Schedules 1 to 5, explain why the Minister considers it appropriate for it to do so, and”
Amendments 69B and 69C agreed.
Amendments 69D and 70 not moved.
71: Clause 11, page 6, line 31, leave out subsections (7) to (10) and insert—
“(7) If, after the expiry of the 60-day period, the Minister wishes to make an order in the terms of the draft, the Minister must lay before Parliament a statement—
(a) stating whether any representations were made under subsection (6)(a); and(b) if any representations were so made, giving details of them. (8) Subject to subsection (10), the Minister may after the laying of such a statement make an order in the terms of the draft if it is approved by a resolution of each House of Parliament.
(9) A committee of either House charged with reporting on the draft order may, at any time after the laying of a statement under subsection (7) and before the draft order is approved by that House under subsection (8), recommend under this subsection that—
(a) the draft order should be approved in its current form;(b) the draft order should be amended;(c) no further proceedings be taken in relation to the draft order; or(d) it is more appropriate for the proposals raised in the draft order to be progressed through a bill rather than a statutory instrument, having regard to—(i) the public interest in the functions or decisions of the body;(ii) the need for a body to act independently of government or ministerial direction;(iii) whether the body considers issues of national importance.(10) Where a recommendation is made by a committee of either House under subsection (9)(b) in relation to a draft order, the House may not proceed unless the recommendation is in the same session—
(a) rejected by a resolution of that House; or(b) the House has approved the order as revised by the committee.(11) Where a recommendation is made by a committee of either House under subsection (9)(c) or (d) in relation to a draft order, no proceedings may be taken in that House under subsection (8) unless the recommendation is in the same session rejected by a resolution of that House.
(12) If, after the expiry of the 60-day period, the Minister wishes to make an order in the terms of the revised draft with material changes, the Minister must lay before Parliament—
(a) a revised draft order; and(b) a statement providing details of—(i) any representations made under subsection (6)(a); and(ii) the revisions proposed.(13) The Minister may, after laying a revised order and statement under subsection (12), make an order in the terms of the revised draft if it is approved by a resolution of each House of Parliament.
(14) However, a committee of either House charged with reporting on the revised draft may, at any time after the revised draft order is laid under subsection (12) and before it is approved under subsection (13), recommend under this subsection that no further proceedings be taken in relation to the revised draft order.
(15) Where a recommendation is made by a committee of either House under subsection (14) in relation to a revised draft order, no proceedings may be taken in relation to the revised draft order in that House unless the recommendation is, in the same session, rejected by resolution of that House.
(16) For the purposes of subsections (8) and (13), an order is made in the terms of a draft order if it contains no material changes to the provisions of the draft order.”
Amendments 72 and 72A not moved.
Clause 12 : Powers relating to environmental bodies
Amendments 73 to 79
73: Clause 12, page 7, line 5, leave out paragraphs (b) and (c) and insert—
“(b) the Welsh devolved functions of the Environment Agency,(c) the Welsh devolved functions of the Forestry Commissioners, or(d) the functions of a Welsh Flood and Coastal Committee.”
74: Clause 12, page 7, line 11, leave out “public functions in relation to Wales” and insert “Welsh devolved functions”
75: Clause 12, page 7, line 12, leave out from “any” to second “to” in line 13 and insert “Welsh devolved function of the Environment Agency or the Forestry Commissioners”
76: Clause 12, page 7, line 17, leave out “public functions in relation to Wales” and insert “Welsh devolved functions”
77: Clause 12, page 7, line 17, at end insert—
“(3A) The Welsh Ministers may by order transfer any function of a Welsh Flood and Coastal Committee to—
(a) a new body,(b) the Welsh Ministers, or(c) any other person exercising Welsh devolved functions.”
78: Clause 12, page 7, line 31, leave out subsections (7) to (11)
79: Clause 12, page 8, line 23, at end insert—
“( ) In this section “Welsh Flood and Coastal Committee” means a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010 for a region wholly or mainly in Wales.
( ) The Welsh Ministers must consult the Secretary of State before making an order under subsection (1) or (3A) relating to a Welsh Flood and Coastal Committee for a region not wholly in Wales.”
Amendments 73 to 79 agreed.
80: After Clause 12, insert the following new Clause—
“Powers relating to other bodies
(1) The Welsh Ministers may by order abolish any of the following—
(a) an agricultural dwelling-house advisory committee for an area in, or consisting of, Wales;(b) an agricultural wages committee for an area in, or consisting of, Wales;(c) the Environment Protection Advisory Committee established pursuant to section 12(6) of the Environment Act 1995 (Wales);(d) the regional and local fisheries advisory committee established pursuant to section 13(5) of that Act (Wales);(e) a regional advisory committee maintained under section 37(1)(b) of the Forestry Act 1967 for a conservancy in, or consisting of, Wales.(2) An order under subsection (1) may include provision transferring functions from the body being abolished to—
(a) the Welsh Ministers, or(b) any other person exercising Welsh devolved functions.(3) The Welsh Ministers may by order modify the funding arrangements of inspectors appointed by the Welsh Ministers under section 86 of the Water Industry Act 1991 (assessors for the enforcement of water quality).
(4) In subsection (3),the reference to modifying funding arrangements has effect as if the reference in section 4(2)(a) to a Minister were to the Welsh Ministers.
(5) The Welsh Ministers may by order do any of the following in relation to an internal drainage board for an area wholly or mainly in Wales—
(a) modify its constitutional arrangements;(b) modify its functions;(c) transfer any of its functions to—(i) the Welsh Ministers;(ii) any other person exercising Welsh devolved functions;(iii) a company limited by guarantee;(iv) a community interest company;(v) a body of trustees or other unincorporated body of persons.”(6) The Welsh Ministers must consult the Secretary of State before making an order under subsection (5) relating to an internal drainage board not wholly in Wales.”
Amendment 80 agreed.
Clause 13 : Powers relating to environmental bodies: consequential provision etc
Amendments 81 and 82
81: Clause 13, page 8, line 25, after “12” insert “or (Powers relating to other bodies)”
82: Clause 13, page 8, line 27, leave out subsections (2) to (4) and insert—
“(2) Where an order under either of those sections transfers functions, the power in subsection (1) includes power to make consequential or supplementary provision—
(a) to modify the constitutional or funding arrangements of the transferor or transferee (subject to subsection (4)),(b) to modify functions of the transferor or transferee, or(c) to confer powers of direction on the Welsh Ministers in relation to functions transferred.(3) Where an order under either of those sections modifies functions of a body or office-holder, the power in subsection (1) includes power to make consequential or supplementary provision to modify the constitutional or funding arrangements of the body or office (subject to subsection (4)).
(4) Subsections (2) and (3) do not confer power on the Welsh Ministers to modify the constitutional or funding arrangements of—
(a) the Environment Agency, (b) the Forestry Commissioners, or(c) any other cross-border operator.(5) In subsections (2) to (4) references to modifying funding arrangements have effect as if the reference in section 4(2)(a) to a Minister were to the Welsh Ministers.
(6) The Secretary of State may by order modify the constitutional or funding arrangements of a person referred to in subsection (4)(a) to (c) in consequence of an order made by the Welsh Ministers under section 12 or (Powers relating to other bodies).
(7) The reference in subsection (6) to modifying the funding arrangements of a person includes modifying the extent to which the person is funded by Welsh Ministers, but the Secretary of State may only modify the extent to which a person is funded by the Welsh Ministers with their consent.”
Amendments 81 and 82 agreed.
Amendment 83 not moved.
Clause 14 : Delegation etc
Amendments 84 to 86
84: Clause 14, page 9, line 2, leave out subsections (1) to (3) and insert—
“(1) A person to whom this section applies may make arrangements with another such person for—
(a) a Welsh devolved function relating to the environment exercised by one to be exercised by the other;(b) co-operation in relation to the exercise of their respective Welsh devolved functions relating to the environment;(c) the provision of administrative, professional or technical services by one to the other for purposes relating to the exercise of functions in or as regards Wales.(2) This section applies to—
(a) the Environment Agency;(b) the Forestry Commissioners;(c) any other person exercising Welsh devolved functions relating to the environment.”
85: Clause 14, page 9, line 15, at end insert “(including provision about the extent to which a fee may be charged in respect of anything done under the arrangements)”
86: Clause 14, page 9, line 16, leave out “an order under subsection (4)” and insert “arrangements under this section involving, or an order under subsection (4) which affects—
(a) the Environment Agency,(b) the Forestry Commissioners, or(c) any other cross-border operator.”
Amendments 84 to 86 agreed.
86A: After Clause 14, insert the following new Clause—
“Purpose and conditions for orders made by Welsh Ministers
(1) The Welsh Ministers may make an order under section 12 or (Powers relating to other bodies) only if they consider that the order serves the purpose of improving the exercise of public functions having regard to—
(a) efficiency,(b) effectiveness,(c) economy, and(d) securing appropriate accountability to Welsh Ministers.(2) The Welsh Ministers may make an order under either of those sections only if they consider that—
(a) the order does not remove any necessary protection, and(b) the order does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.”
Amendment 86A agreed.
87: After Clause 14, insert the following new Clause—
“Consent of UK Ministers
(1) The Secretary of State’s consent is required for an order under section 12 or (Powers relating to other bodies) which transfers a function to, or confers a function on—
(a) the Environment Agency,(b) the Forestry Commissioners, or(c) any other cross-border operator.(2) The Secretary of State’s consent is required for an order under section 12 or (Powers relating to other bodies) made by virtue of section 13 which in any other way modifies the functions, other than Welsh devolved functions, of a person referred to in subsection (1).
(3) A Minister’s consent is required for an order under section 12 or (Powers relating to other bodies) which transfers a function to, or modifies the functions of, the Minister.”
Amendment 87A, as an amendment to Amendment 87, not moved.
Amendment 87 agreed.
Amendments 88 and 89B
88: After Clause 14, insert the following new Clause—
“Consultation by Welsh Ministers
(1) Where the Welsh Ministers propose to make an order under sections 12 to 14 they must consult—
(a) any body or person exercising public functions to which the proposal relates,(b) such other persons as appear to them to be representative of interests substantially affected by the proposal, and(c) such other persons as they consider appropriate. (2) If, as a result of consultation under subsection (1), it appears to the Welsh Ministers appropriate to change the whole or part of the proposal, they must carry out such further consultation with respect to the changes as seems appropriate.
(3) It is immaterial for the purposes of this section whether consultation is carried out before or after the commencement of this section.”
89B: After Clause 14, insert the following new Clause—
“Procedure for orders by Welsh Ministers etc
(1) If after consultation under section (Consultation by Welsh Ministers) the Welsh Ministers consider it appropriate to proceed with the making of an order under sections 12 to 14, the Welsh Ministers may lay before the National Assembly for Wales—
(a) a draft order, and(b) an explanatory document.(2) The explanatory document must—
(a) introduce and give reasons for the order ,(b) explain, in the case of an order under section 12 or (Powers relating to other bodies), why the Welsh Ministers consider that—(i) the order serves the purpose in (Purpose and conditions for orders made by Welsh Ministers)(1), and(ii) the conditions in section (Purpose and conditions for orders made by Welsh Ministers)(2)(a) and (b) are satisfied, and(c) contain a summary of representations received in the consultation.(3) The Welsh Ministers may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began.
(4) Subject as follows, if after the expiry of the 40-day period the draft order laid under subsection (1) is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the draft order.
(5) The procedure in subsections (6) to (9) shall apply to the draft order instead of the procedure in subsection (4) if—
(a) the National Assembly for Wales so resolves within the 30-day period, or(b) a committee of the Assembly charged with reporting on the draft order so recommends within the 30-day period and the Assembly does not by resolution reject the recommendation within that period.(6) The Welsh Ministers must have regard to—
(a) any representations,(b) any resolution of the National Assembly for Wales, and(c) any recommendations of a committee of the Assembly charged with reporting on the draft order,made during the 60-day period with regard to the draft order.(7) If after the expiry of the 60-day period the draft order is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the draft order.
(8) If after the expiry of the 60-day period the Welsh Ministers wish to proceed with the draft order but with material changes, the Welsh Ministers may lay before the National Assembly for Wales—
(a) a revised draft order, and(b) a statement giving a summary of the changes proposed.(9) If the revised draft order is approved by a resolution of the National Assembly for Wales, the Welsh Ministers may make an order in the terms of the revised draft order.
(10) For the purposes of this section an order is made in the terms of a draft order or revised draft order if it contains no material changes to its provisions.
(11) An order may not be made by the Secretary of State under section 13(6) unless a draft of the instrument containing the order has been laid before, and approved by a resolution of, each House of Parliament.”
Amendments 88 and 89B agreed.
Clause 15 : Procedure for orders under sections 12 to 14
90: Clause 15, leave out Clause 15
Amendment 90 agreed.
Clause 16 : Restrictions on Ministerial powers
Amendments 90A to 90C
90A: Clause 16, page 9, line 26, leave out “the preceding provisions of this Act” and insert “sections 1 to 5”
90B: Clause 16, page 9, line 37, leave out “the preceding provisions of this Act” and insert “sections 1 to 5”
90C Transpose Clause 16 to before Clause 8
Amendment 90A to 90C agreed.
Clause 18: Restriction on transfer and delegation of functions
91: Clause 18, page 10, line 13, leave out subsection (1) and insert—
“(1) An order under the preceding provisions of this Act may not transfer any function to—
(a) a charity, or(b) a person not otherwise exercising public functions who is not a charity,unless the charity or person has consented.”
My Lords, it is a great pleasure to introduce this final group of amendments of what has been an excellent Report stage. In moving Amendment 91 I shall speak to the remaining amendments.
Noble Lords will know that considerable concern has been expressed in debate about the relationship between the Bill—and the proposals arising from it—and charities. I am pleased to be able to confirm that the amendments mean that the consent of charities to receive functions as a result of activities under the Bill will have to be sought under the legislation. The amendments are designed to effect that change and I hope that the House will be prepared to accept them.
Amendment 91 agreed.
Clause 20: Transfer schemes
Amendments 92 to 94
92: Clause 20, page 11, line 27, leave out “the transfer of a function under section 12” and insert “an order under section 12 or (Powers relating to other bodies)”
93: Clause 20, page 11, line 36, leave out from “transferred” to end of line 37 and insert “to the Welsh Ministers, a person exercising Welsh devolved functions or a body corporate”
94: Clause 20, page 11, line 37, at end insert—
“(3A) A transfer scheme may not transfer anything to a charity unless it has consented.”
Amendments 92 to 94 agreed.
Clause 21: Transfer schemes: procedure
95: Clause 21, page 12, line 37, at end insert “or a cross-border operator”
Amendment 95 agreed.
Clause 24: Orders: supplementary
Amendment 96 and 97 not moved.
Clause 25: Interpretation
Amendments 98 to 103
98: Clause 25, page 14, line 6, at end insert—
““charity” has the meaning given in section 1(1) of the Charities Act 2006;”
99: Clause 25, page 14, line 8, at end insert—
““cross-border operator” means a person exercising functions or carrying on activities in or with respect to Wales (or any part of it) and England (or any part of it), but does not include—
(a) an internal drainage board, or (b) a Regional Flood and Coastal Committee established under section 22(1)(c) of the Flood and Water Management Act 2010;”
100: Clause 25, page 14, line 25, at end insert—
““Wales” has the same meaning as in the Government of Wales Act 2006;
“Welsh devolved function” means—
(a) a function conferred under an Act or Measure of the National Assembly for Wales;(b) a function which is exercisable in or as regards Wales and could be conferred by an Act of the Assembly;(c) a function in relation to which a function (other than a function of being consulted) is exercisable by the Welsh Ministers, the First Minister or the Counsel General to the Welsh Assembly Government,and references to a person exercising a Welsh devolved function do not include a person exercising such a function by virtue of arrangements under section 14”
101: Clause 25, page 14, line 28, at end insert “or the National Assembly for Wales”
102: Clause 25, page 14, line 29, after “(2)” insert “in relation to an order laid before Parliament”
103: Clause 25, page 14, line 31, at end insert—
“( ) For the purposes of subsection (2) in relation to an order laid before the National Assembly for Wales, no account is to be taken of any time during which the Assembly is dissolved or is in recess for more than four days.”
Amendments 98 to 103 agreed.