8 Public Bodies Reform Bill [Lords]
129. The Public Bodies Reform Bill [Lords] is
the legislation necessary to give ministers the legal power to
implement the outcome of the public bodies review. The Bill itself
will not bring about any changes to public bodies; instead it
will give Ministers the power to use secondary legislation to
make changes to public bodies.
130. The Bill is structured around seven Schedules.
The majority of public bodies that were in the scope of the initial
review are listed in one of these Schedules. Which Schedule a
body is in determines what kind of change the minister can use
secondary legislation to bring about. Bodies listed in Schedule
1 can be abolished; those in Schedule 2 can be merged; Schedule
3 allows for amendments of constitutional arrangements; Schedule
4 covers funding arrangements; Schedule 5 permits the transfer
or modification of function; Schedule 6 authorises the delegation
of bodies and offices; while bodies contained in Schedule 7 may
be moved to any other Schedule at a later date.
Progress in the Lords
131. Even before its second reading the Bill
was the subject of two highly critical reports by both the House
of Lords Constitution and Delegated Power and Regulatory Reform
Committees. The Constitution Committee described the Bill as:
Strik[ing] at the very heart of our constitutional
system, being a type of 'framework' or 'enabling' legislation
that drains the lifeblood of legislative amendment and debate
across a very broad range of public arrangements. In particular,
it hits directly at the role of the House of Lords as a revising
chamber.[160]
Lord Norton, a member of the Constitution Committee
summarised these concerns saying that the "substantive
problem" with the Bill was " the Henry VIII provision—in
other words, giving the Secretary of State power to amend primary
legislation through secondary legislation by order."[161]
The Committee believed giving the Government these powers undermined
"the ordinary constitutional position in the United Kingdom
that primary legislation is amended or repealed only by Parliament."[162]
They point out that many public bodies were established after
lengthy Parliamentary debate and that they "fail to see
why such parliamentary debate and deliberation should be denied
to proposals to abolish or to redesign such bodies."[163]
The Delegated Powers and Regulatory Reform Committee came to a
similar conclusion:
the powers contained in clauses 1 to 5 and 11[164]
as they are currently drafted are not appropriate delegations
of legislative power. They would grant to Ministers unacceptable
discretion to rewrite the statute book, with inadequate parliamentary
scrutiny of, and control over, the process.[165]
132. The Constitution Committee's solution to
this problem was to have Orders under this act subject to the
"super affirmative" procedure rather than the affirmative
procedure as is currently proposed. Under the "conventional"
affirmative procedure an Order is normally debated in a Committee
for up to an hour and a half; and is unamendable. A Government
defeat in Committee has no real effect. Following Committee stage,
the House votes on the Order without debate or the ability to
amend it.
133. The "super affirmative" procedure
essentially allows for pre-legislative scrutiny of an Order. This
is achieved by publishing the Order in draft and sent to both
Houses for comment. The Government may then revise the Order to
reflect any concerns which may have been raised before laying
before both Houses for approval under the "conventional"
affirmative procedure.
134. The Delegated Powers and Regulatory Reform
Committee warned that:
The insertion of a super-affirmative procedure cannot
bring a misconceived delegated power within the bounds of acceptability.[166]
It therefore made a number of other suggestions for
improving the Bill including:
i. more detail on the face of the Bill about
how the powers are to be exercised;
ii. further general limitations might be placed
on the extent of Ministerial powers under the Bill;
iii. certain bodies could be removed from the
Bill altogether; and
iv. Introducing a sunset clause for either the
Bill as a whole, or for Schedule 7, time-limiting the powers made
available to Ministers.
During the Committee stage in the Lords the Minister
agreed to consider 'sun-setting' part, or all, of the Bill.[167]
The Bill would therefore only serve to implement the current review
and new legislation would be required for future reviews.
135. It seems clear to us that
the Bill as originally drafted contains insufficient safeguards
to prevent the misuse of powers by ministers. It is essential
that the exercise of powers under this Bill is subject to rigorous
Parliamentary scrutiny. We will be carefully following the Bill's
progress in the House of Lords. We are currently minded that the
Bill should contain a general sunset clause; it should only serve
the current review and fresh primary legislation should be required
for future reviews. We will issue a further Report on this Bill
itself after it has completed all its Lords stages, and reserve
our judgement as to whether additional safeguards will be needed.
160 House of Lords Constitution Committee, Public
Bodies Reform Bill [HL], Sixth Report of the Session
2009-10, HL Paper 51, para 13 Back
161
Oral Evidence taken before the Public Administration Select Committee
on 7 December Q 171 Back
162
House of Lords Constitution Committee, Public Bodies Reform
Bill [HL], Sixth Report of the Session 2009-10, HL Paper 51,
para 4 Back
163
Ibid, para 13 Back
164
These are the clauses that give power to make changes to bodies
listed in Schedules 1-5 and 7 respectively. Back
165
House of Lords Delegated Powers and Regulatory Reform Committee,
Public Bodies Reform Bill [HL], Fifth Report of the Session
2010-11, HL Paper 57, para 1 Back
166
Ibid, para 42 Back
167
HL Deb, 23 Nov 2010, col 1046 Back
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