Smaller Government: Shrinking the Quango State - Public Administration Committee Contents

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powers undermined "the ordinary constitutional position in the United Kingdom that primary legislation is amended or repealed only by Parliament."[162] They point out that many public bodies were established after lengthy Parliamentary debate and that they "fail to see why such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

previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2011
Prepared 7 January 2011