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Yet it is a principle of the common law that like cases should be treated alike and unlike cases should be treated differently, but that basic constitutional principle has not been followed in relation to Schedule 7 or the Bill as a whole. For example, the Judicial Appointments Commission, the Children's Commissioner, the Legal Services Commission, Her Majesty's Inspector of Prisons, the Independent Police Complaints Commission and the Equality and Human Rights Commission are included in the schedule, even though all of them perform technical functions, their activities require political impartiality and they need to act independently to establish facts.
It is interesting to recall that those not in the schedule-thank heaven-include Her Majesty's courts and the Parliamentary Commissioner for Administration. Presumably someone in the Cabinet Office recognised that it would be even more outrageous to include those but, as a matter of principle, one wonders why the Parliamentary Ombudsman is not there whereas the Local Government Ombudsman is. As many have said already, their inclusion in Schedule 7 would weaken their independence and the willingness of qualified people of independence and integrity to serve on them as they would be vulnerable to ministerial interference if they acted in a way causing displeasure to Ministers or civil servants. For the reasons given by the noble and learned Lord, Lord Woolf, the Bill as it stands weakens the rule of law and the independence, indirectly, of the judiciary.
The Equality and Human Rights Commission has been singled out for different forms of ministerial interference in a big way. The power to modify constitutional arrangements under Clause 3, to modify funding arrangements under Clause 4 and to modify or transfer functions under Clause 5 may all be applied to that commission. I have a particular interest in those provisions because I helped Roy Jenkins to create equality agencies in the 1970s and worked closely with the previous Government to include in the Equality Act 2006 safeguards to prevent unnecessary ministerial interference with the commission's independence. The Equality Act 2010 gave the new commission a more extensive remit and greater enforcement powers than its predecessors. In order to be able to challenge the actions of Government, as well as those of the private sector, that commission needs to be independent and the UN Paris Principles require that. The 2006 Act puts the Minister under an obligation to have regard to the desirability of ensuring that it is under as few constraints as reasonably possible in determining its activities, timetables and priorities.
The Joint Committee on Human Rights, on which I serve, has commented on this and I will not detain your Lordships by repeating what it has said about it. However, there is a widespread view that the commission has been poorly led and managed and that Ministers and civil servants in the previous Government are responsible for having permitted that. What are needed
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Instead, what the Bill does is to include powers to enable Ministers, if they wished, to hobble the commission and to jeopardise its independence. That would be a retrograde step-I am sure it will be disclaimed-but it would if done be deplored here and abroad. The Minister has stated in his view that the provisions in the Bill are compatible with the European Convention on Human Rights and the Explanatory Notes state:
"The Government does not consider that the Bill directly engages any convention rights".
That is literally true. However, the Bill does undoubtedly indirectly engage convention rights, as I am sure the Minister will accept. The public bodies within the Bill's reach include many such as the EHRC whose functions secure and promote the UK's obligations under the convention and the other international human rights covenants and conventions by which the UK is bound. Those bodies are listed quite indiscriminately in Schedule 7 as bodies and offices which may be transferred to other schedules, including some performing judicial or quasi-judicial functions and upholding the rule of law in ways that are, and can be seen to be, independent and impartial. The Joint Committee on Human Rights has asked the Government for a full human rights memorandum and I have raised this with the Government. We need it by 23 November when we will meet, and I am sure, give some kind of report.
Finally, it is essential for the necessary safeguards to be included in the Bill at the earliest opportunity and avoiding any unnecessary delay. That should enable the Bill to complete its passage through this House with all deliberate speed. I would favour a reference to a Select Committee if, and only if, its terms of reference were strictly confined to process and safeguards, and strictly time-limited to report not later than, as my noble friend has indicated in his Motion, 28 February 2011. I say not later than and I would hope earlier than that, and only if the Minister were unable at the conclusion of the debate to give the necessary assurances as to how he would achieve the same objective at the first meeting of the Committee of the Whole House by tabling a series of amendments that would do that job if necessary and do it more quickly. We should try to avoid what is necessarily happening in this debate, which is that special interest groups and special concerns would be raised one by one in Committee endlessly, day after day, because the Bill itself did not contain the necessary safeguards or machinery to be able to refer this forward.
When I saw Ministers, I reminded myself and therefore mentioned to them two things that I learnt from Roy Jenkins-that very wise Minister-when I worked with him. The first was when I asked him, "What advice can you give me about how to do my job?". He said, "Anthony, I would like you to argue to solutions and not to conclusions". I believe that is what we should be
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5.45 pm
Lord Kennedy of Southwark: My Lords, I thank the noble Lord, Lord Taylor of Holbeach, for the introduction of this Bill. I also declare to the House that I am a member of a public body. I am a member of the Electoral Commission but that particular body does not feature anywhere in this Bill.
I must add that I am not very happy about the Bill. Noble Lords will be aware that I am a relatively new Member of this House. However, that does not stop me having considerable concerns as to how the Bill is constructed; how it seeks to make major changes to bodies or abolish bodies that were set up following detailed individual pieces of legislation passed by Parliament and avoid the rigours of parliamentary scrutiny in doing so; and how it proposes to hand considerable power to Ministers to abolish or make wide-ranging changes to bodies through the statutory instruments process.
This is not good government. This is the Conservative Government seeking to force through a skeleton Bill that gives Ministers wide-ranging powers: powers to abolish; powers to merge; powers to modify constitutional arrangements; powers to modify funding arrangements; powers to modify or transfer functions and powers to delegate. However, in the case of Schedule 7 we have no idea what the Government are planning because they are not telling us-all they are getting in Schedule 7 is power. All we have got in Schedule 7 is the heading: "Bodies and offices subject to power to add to other schedules". I would suggest a better heading to Schedule 7 would be: "Power to possibly do some of the above, we are just not saying yet and will only tell you when this Bill is law".
That is not good government. That is rushed government. That is ill-thought-out government. That is Government without the confidence to come to the Floor of this House and argue the case properly. What is so depressing is that this is just the sort of Bill that cries out for pre-legislative scrutiny. I will be interested in hearing the Minister's response as to why that has not happened. It certainly cannot be because of pressure of time in this House. There has been a marked lack of legislation in this House since the general election. I have no problem with the Government saying we need to look at public bodies. We need to ensure we are getting value for money. We need to make sure what they are doing is necessary. We need to change their arrangements, refocus them or if the function is no longer required, abolish them. What is wrong here is the way it is being done.
One of the things that strikes you when come into the House for the first time is the level of expertise and experience on all Benches and all sides of this House.
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I think we have lots of questions, lots of worries and very few answers. What is Schedule 7 about? I am very unhappy with the explanation I have had so far from the Minister and I fear that my noble friend Lady Royall might be right and the coalition want to have the sword of Damocles hanging over these bodies. If not, why cannot the coalition as a bare minimum get rid of Schedule 7 and state what it is considering doing with these bodies? If as the noble Lord said, in many cases there is no intention of doing anything to these bodies, then remove them from the list completely. I hope the Minister can respond to that point as well.
Where the Government are not saying what they propose do with specific bodies but want such wide-ranging powers you begin to wonder what is going on and what the agenda is. For example, the Low Pay Commission was established in 1998 as an independent body to advise the Government about the minimum wage following the passing of the National Minimum Wage Act 1998. Why is that on Schedule 7? I hope this is not some attempt by stealth to stop the minimum wage increasing, by abolishing, or changing the remit or having the function transferred into the hands of Ministers. The minimum wage has been a great success and has helped people go out and earn a living and earn a wage, and be confident that there is a minimum rate of pay and if their employer seeks to pay below that action can and will be taken. The Government need to be clear what they are proposing to do.
Another body in Schedule 7 is the Gangmasters Licensing Authority. It was established in 2005 and regulates those who supply labour in areas such as agriculture and food processing. I note the noble Lord is titled "Lord Taylor of Holbeach". If that is after Holbeach in Lincolnshire, I am sure he will be fully aware of gangmasters in Lincolnshire. If there was a proposal not to cut back on these bodies and maybe to merge these two bodies, that should appear in Schedule 2, not in Schedule 7. We could then have a sensible debate about the merits of that proposal.
Not knowing the intention of the Government while they ask the House to agree these proposals is the problem. I hope that the Minister will ensure that, as we consider the Bill, all his colleagues come to the Dispatch Box to explain the intentions of their departments. The House deserves no less from the Government.
Under Schedule 1, the only body that I wish to mention is the Security Industry Authority, which came into being following the passing of the Private Security Industry Act 2001. The Security Industry Authority licenses the private security industry, which covers security guarding, door supervision, close protection and cash in transit among other things. The authority has raised standards and driven out criminality. What a change there has been in clubs, where all the door staff are displaying their credentials. You can be assured that they are fit and proper persons. Who wants to go back to the time before the industry was regulated? I
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In conclusion, I look forward to the contributions of other noble Lords, as there is great concern not only on these Benches but on other Benches in this House. The Minister and his colleagues have a considerable task ahead of them.
5.51 pm
Baroness Whitaker: My Lords, I was the departmental minder-otherwise known as ministerial adviser-for two quangos, the secretary to a third and adviser on the creation of a fourth and on the disbanding of a fifth. During that time, it certainly occurred to me that all non-departmental public bodies should be required to redefine themselves every so often, so I have some sympathy with the Government's feelings.
The Government put forward, in Clause 8, two sets of principles that should govern changes to such public bodies: efficiency, effectiveness and economy-that familiar trio-and accountability, which is certainly no less important. En passant, the Minister also mentioned independence, which is not in the Bill. Independence should be one of the chief grounds for a function to be non-departmental, as the noble Baroness, Lady Meacher, said. Many public interests must not be subject to the party-political ebb and flow or to the opinion of the Minister of the day nor should they be captured by well funded lobbies, as was touched on by my noble friend Lady Blackstone and by the noble Lord, Lord Lester. Why have the Government not included independence in the criteria? Perhaps it goes without saying that another rationale for an arm's-length body is expertise, which is usually included in the rules for appointment to such bodies. Where do the Government cite expertise in their criteria?
I will focus on some bodies that contribute significantly to the citizen's quality of life and well-being. They inhabit a place where the market, as it now works, does not deliver, so there is a need for a public interest framework. I mean primarily: the Design Council, which has already been redefined outside the Bill; the Commission for Architecture and the Built Environment; and the Homes and Communities Agency. At present, the market does not deliver good design in those fields, not because good design is not effective but because design effectiveness produces externalities beyond the market arrangements of selling products. For example, a well designed housing estate produces benefits in enjoyment of amenity, health, educational attainment and reduction of crime-in short, well-being. Such benefits can be, and indeed have been, measured, but they require a longer-term and more extensive analysis than the market likes and they often accrue to a different budget from that of the purchaser. The Government's impact analysis for the Bill takes no account of such things. It states that the Bill has no impact on human rights, no direct impact on rural
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The Government have put forward different ways of redefining the three organisations that I mentioned. The proposal for the Design Council was potentially an acceptable solution. Its new charitable status means that it will retain independence. It remains free to draw on expertise. Its tasks will remain the essential ones. The proposal should indeed be acceptable, as the changes follow on from wide consultation and carry out the recommendations of the Temple review. However, not all the recommendations have been implemented. For instance, the Design Council needs funding for the transition and, without that, the Government's solution will miss the boat. Will the Minister assure the House that there will be full implementation of the Temple review? I know that the noble Lord, Lord Bichard, who is unfortunately unable to be here, shares my view both on that and on what I will say about the Commission for Architecture and the Built Environment.
The Commission for Architecture and the Built Environment is another body whose function is irreplaceable in our current context, in which planning authorities have very varied comprehension of good design, powerful developers build, sell and move on and citizens have little access to expert help. However, the Department for Culture, Media and Sport has decided not to renew CABE's funding-a very small £4 million-after the current financial year. What will the cessation of CABE cost, including the externalities to which I referred? I might add that the abolition of the regional tier of government will exacerbate the crisis in housing development, so something like CABE will be all the more necessary. If we lose that function, even outside its present form, our citizens risk having dreary and insecure places in which to live, work and learn. They deserve better from those whom they voted for.
The Homes and Communities Agency will still exist, although it sits under a sword of Damocles in Schedule 7 to the Bill. The agency is to be redefined with the purpose of becoming a more strategic body. To do that properly, the agency will need to retain its core duties, including the obligation,
Will the Minister confirm that that will remain an objective? How will he ensure that a reduced HCA has the resource to enable good design for ordinary people's homes, bearing in mind that such things must be done locally, in local circumstances?
Another inhabitant of Schedule 7 is the Architects Registration Board, which others have already mentioned. Surely the Government know that there must be a register. Registration is not only a European requirement but is necessary for the protection of customers. It would be wrong if anyone could set up and practise as an architect without credentials. I hope that the Government will tell us what their solution is.
Finally, the Bill does much more than provide implementation powers for redefining functions. As the Select Committee on the Constitution said, the Bill will take powers away from Parliament for
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5.58 pm
Lord Blackwell: My Lords, before speaking, I should draw attention to my interests as a non-executive board member of Ofcom and as a former board member of the Office of Fair Trading, although I will speak this evening only about the general principles of the Bill rather than about the specific proposals that will affect those organisations. I am also a member of the Delegated Powers and Regulatory Reform Committee, which will discuss the Bill tomorrow, but I stress that my remarks this evening are my personal views at this stage.
Having said that, let me say to the Minister that I am a strong supporter of the Bill, both on the substance of its proposals and on the form in which those have been produced, albeit with the appropriate safeguards that I hope that the Minister will be able to offer to the House in his concluding remarks. I am a strong supporter, because the reality is that there has been an unacceptable and unaffordable progressive rise in the costs and burdens of these kinds of bodies and their impact on the economy. It is easy to set up new bodies as a knee-jerk reaction to the latest concern and, once established, it is very difficult to get rid of them. What is more, the very worthy people who take up roles in these bodies with all the best intent will always find additional things that they can do whereby they can add-they believe-to the social welfare of their fellow citizens. On the margin, they are probably right but, when you add that up collectively, the collective burden becomes unaffordable. We are not talking only of the direct costs-the £38.4 billion that my noble friend mentioned-but of the indirect costs, because every individual sitting in a regulator creates work for four or five people in the private sector who respond to their e-mails, telephone calls and consultation. This becomes, with all the best intentions, a huge burden on the wealth-creating part of the economy.
These bodies should be properly subject to a zero-based challenge on a regular basis; they should be challenged to justify why they are there and whether what they are doing continues to be relevant. The reason we need this Bill is because we have not done that effectively. We have a backlog because no Government have had the courage to address the problem and I applaud this Government for picking up that challenge. Past attempts at deregulation have often failed because Governments have attempted to do them in small steps, step by step, and have run into the barriers of vested interests and long consultation periods, which means that they inevitably run into sand. So we need a bold approach if we are going to deal with this problem. The Government need to get on with it. In the process, some decisions may be imperfect, but I hope that we can minimise those during the passage of the Bill. Delay or indecision would be even more damaging.
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I turn briefly to the form of the Bill, which I back in terms of implementing decisions in orders subject to a number of safeguards. When one thinks of the alternative, many man-years of Bill time went into creating these institutions. If we were to introduce primary legislation for every institution to make the amendments considered in this Bill, we would tie up Parliament for a decade. It is just not feasible. This is an exceptional circumstance and we need exceptional measures. Of course, Henry VIII powers should be used sparingly, and I am the first to be hawkish when looking at their abuse when they are inappropriate. However, this is an exceptional scale of reform, and delay and uncertainty are unacceptable, not only because of the cost but because, in many cases, the Government have announced what they intend to do. The longer we drag out that period of uncertainty for the institutions involved and those working for them, the harder we make it for them to continue to do an effective job.
I propose an additional principle that we might adopt when looking at the Henry VIII convention-a presumption in favour of deregulation. In other words, I suggest that we might look more tolerantly at the use of Henry VIII powers when they are used to remove or reduce regulations than when they are used to increase or add new functions or powers. This Bill is about reducing bodies, functions and regulations. On that basis, with appropriate debate in this House through its passage, I believe that delegated powers are acceptable as a practical way in which to achieve the ends. One caveat is that it is unclear from a strict reading of Clause 5, which talks about modifying functions-although I know that the intention of the Bill is deregulatory-whether that explicitly excludes the power to increase functions or create new functions. It would help me if the Minister could confirm that the Bill will be used only to reduce functions or transfer functions that already exist under primary legislation. If the Bill needs amending to clarify that, it might be helpful to do so.
The other point that has been raised repeatedly is on Schedule 7, which implements Clause 11. I share concerns that if economic regulators are in that schedule or bodies exercising judicial functions, uncertainty over those functions is unhelpful for those being regulated and exercising those judicial functions. My noble friend in his opening remarks implied that the powers under Schedule 7 would not be used in those circumstances, but it would help the House if he could confirm that the intent of the schedule would not be applied to the functions that have an economic regulatory function or a judicial function. Again, it might be helpful if the Bill was amended to clarify that.
I turn to the form of debate and the proposed amendment. Most of what is proposed with these bodies has already been set out by the Government in one place or another in the past few weeks. I cannot think of a better place in which to debate those various bodies and the proposals for them than the Floor of this House. If the Bill is passed as amended, individual affirmative Motions would then be brought back on every individual proposal, and I agree with those who have suggested that there may be opportunities to strengthen that affirmative process where it was
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To conclude, this is a bold Bill but I believe that it is an essential and necessary one. If we believe in the importance of removing the costs and bureaucracy that have grown up through excessive regulation, Parliament should not lose its resolve in giving the Government the powers that they need to get on with the job.
6.07 pm
Baroness Hayter of Kentish Town: My Lords, reticent as I am to depart from the conclusions of the Constitution Select Committee of your Lordships' House, which first considered this Bill akin to Henry VIII powers, I respectfully suggest that at least the dissolution of the monasteries brought much needed finance to the Crown's coffers, whereas this Bill fails lamentably to achieve even that. In all other respects, I concur with their conclusions.
I have three points-first, on the lack of public and parliamentary scrutiny; secondly, on the potential move of functions from independent to political control, with the exclusion of any lay, consumer or user voice in decision-making; and, thirdly, to point to some examples of the dangers in the Bill, primarily in Schedule 7.
First, this Bill gives legislative powers to Ministers, including powers to merge or abolish bodies, without the rigours of parliamentary scrutiny let alone public debate. It gives Secretaries of State powers to change organisations simply by secondary legislation. Parliament plays a vital role in safeguarding rights and freedoms, and it is parliamentary scrutiny that allows Bills to be amended and gives interested parties, the public and the press time to consider the implications of proposed laws.
Many bodies in the Bill were the product of extensive parliamentary debate, as has been said, yet such parliamentary deliberation would be denied to proposals to abolish or to redesign such bodies. Clause 11 is a particularly pernicious clause, giving Ministers powers to add any of the 150 Schedule 7 bodies to the schedules permitting their abolition, merger or modification, simply by statutory instrument, as outlined by several noble Lords. The Bill effectively renders these bodies liable to abolition or restructuring at the behest of the Executive. The Bill fails to allow Parliament to consider the suitability of the Schedule 7 groups to be moved into a list of organisations which are then subject to such wide powers. As the Constitution Committee emphasised, many of those bodies, as has been said earlier, were created by primary legislation and therefore by the will of Parliament. It is entirely inappropriate for such bodies to be scrapped or fundamentally reformed at the imperative of a Minister without due regard to parliamentary process.
Secondly, the Government have made it clear that they expect Ministers to take responsibility for what is done in the name of us all, and not leave it to unelected
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The Government's presumption is that any state activity should be undertaken by democratically accountable bodies, with a quango existing only if it meets one of the three tests already alluded to-including whether its activities require political impartiality. The Minister used "impartiality" in opening this debate. Yet the very purpose of most quangos is to take issues out of politics; thus, they do not come under direct ministerial control but operate at arm's length from Ministers. That, surely, is their very strength.
As your Lordships know, many of the affected bodies have a mandate to provide not just impartial but independent oversight of vital areas of public sector activity. The wide-ranging powers in the Bill may lead to the abolition of organisations and offices which play a vital role in holding public bodies or central government to account, as suggested by the noble Baroness, Lady Meacher, and other speakers. The Bill makes no provision for safeguarding the continued independence of such bodies, as emphasised by my noble friend Lady Whitaker. There is a big difference between independence and impartiality: it is the independence to be able to say, without fear or favour, what decision you have reached.
Thirdly, therefore, I turn briefly to some examples of the bodies over which the axe will not fall but, perhaps even worse, potentially hover for years. There is the Homes and Communities Agency. As the noble Baroness, Lady Eaton, of the Local Government Association said elsewhere, the acid test will be whether Ministers allow decisions to be taken at the front line by locally elected people who know their neighbourhoods or simply replace unaccountable quangos with unelected civil servants in Whitehall. There is Ofsted, a non-ministerial government department reporting directly to Parliament. That constitutional basis protects the role of the chief inspector, whom neither the board nor the Secretary of State can remove, thus ensuring that her reports and actions are protected from accusations of undue influence. Ofsted's remit includes advising the Secretary of State, such advice being provided without fear or favour exactly because of the organisation's constitutional position. Given that Ofsted's actions can have serious consequences, its protection from allegations of undue influence is vital. Ofsted inspection has a key role for schools operating with greater autonomy, where independent inspection becomes central to enabling services to be accountable.
I turn to NEST, which is a pension scheme established under the Pensions Act 2008. Its trustee board-I declare a recent interest, as until last month I was a member of it-has a fiduciary duty to its pension members, whose money it holds on trust, not to the Government, save in regard to any loan from government.
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The noble and learned Lord, Lord Woolf, mentioned the Legal Services Board; here I declare another interest as chair of the Legal Services Consumer Panel, which that board funds. The Legal Services Board is, of course, funded not by the Government but by lawyers. The board's creation in the Legal Services Act 2007 was the product of extensive parliamentary debate. Your Lordships will recall the importance given to the independence of the Legal Services Board-independent from government-in the passage of the Bill. That was particularly emphasised in the Joint Committee examining the Bill that was chaired by the noble Lord, Lord Hunt of Wirral. The independence of the regulator overseeing barristers and other lawyers is key to their reputation, both here and abroad, for independence before the courts, to the rule of law and to its separation from government. Yet with a couple of statutory instruments this robust, independent board could be swept away.
There are many worrying powers in the Bill that fly in the face of normal lawmaking. "Think again, Government", is the best advice I can proffer.
6.17 pm
Lord Harries of Pentregarth: My Lords, I believe that there is widespread support in this House for the Government's desire to cut public spending. There is also much support for a hard look at all public bodies, with a view to abolishing or merging them where justified. What worries many of us, and certainly concerns me, is the indiscriminate way in which all public bodies are being considered in the one long, fierce slash of this Bill. A list has been drawn up by the Government of what is to be done: this one to be abolished, that one to be merged and so on. All right-one has to start somewhere and that is a starting point, but it is only a starting point for the serious work that must surely then begin, which is the sober, rigorous examination of each proposal on its merits.
First, what is needed is, at some point, some careful costing. The aim of the Bill is to save money, but will it in fact do that? Reorganisations are notoriously expensive. To take the HFEA, the body that I have been most familiar with in recent years, under the proposals in the Bill there will not even begin to be any savings until the next Parliament, even if there are any then, which is highly doubtful. This highlights the need to examine alternative ways of saving money. The HFEA is in the process of moving to lighter-touch regulation. It has its own firm proposals to make savings in both running costs and staff. I believe that, if we are to do our job as a House, it is essential that there is serious examination of the cost implications of each proposal together, where applicable, with the alternative proposals for saving money, not just in the short term but for the long term. I do not see how we can be said to have done our job without such a financial cost-benefit analysis.
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Secondly, we need someone other than the government officials who drew up the original proposals to test the criteria that have been used against every individual public body affected by the proposals. These proposals are, again, a good starting point, but someone wants to ask about each public body, "Does it perform a technical function? Do its activities require political impartiality? Does it need to act independently to establish facts?". It is necessary to have a serious and impartial look at each public body in the light of those questions. The answer to them cannot simply be left to the people, however worthy, who put forth the original proposals for abolition and merger.
Again, I can speak only from first-hand experience of the HFEA, which came about, as most of your Lordships know, as a result of the report that the noble Baroness, Lady Warnock, published in 1984. After days of parliamentary debate, it was established as part of the legal framework of the Human Fertilisation and Embryology Act 1990. Then, again, after days of debate its existence was reaffirmed as part of the legal framework for work in this area that was provided for by the 2002-03 legislation. That is without including the Select Committee, days of debate on embryo research and other aspects of the work. If Parliament has thought this area so critical that it was worth weeks of its time to set up a regulatory body with very tight regulation in place, it hardly seems responsible to dismember that body with one quick snip and without serious consideration of the implications of so doing. As the Select Committee on the Constitution put it in paragraph 14 of its report, many of the bodies are,
- "the product of extensive parliamentary debate and deliberation. We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies".
The HFEA is not alone in being concerned with ethical issues. In my view, every area of life has an ethical dimension. However, the ethical dimension of the work of the HFEA, concerned as it is to preserve the special moral status of the early embryo, is of particular sensitivity and of acute concern not just to Roman Catholics but to the wider public. As we know, the issues that it has had to consider in recent years have been highly controversial and there is every reason to think that there will be new issues in the future that are no less controversial. Almost every committee meeting of the HFEA has to have a lawyer permanently in attendance to ensure that the Act is being strictly adhered to, while a number of the decisions made in recent years have been challenged up to the highest court in the land.
It is the integrated work of the HFEA that enables it to do the work that has been entrusted to it by Parliament. The clinics, the researchers and the vast and complex database are held together under the law to ensure that the will of Parliament is carried out. If the HFEA is dismembered, regulation will become fragmented and much weakened and the likelihood of slip-ups and accidents is likely to increase. There is no reason why there should not be a closer alignment with the Care Quality Commission-the HFEA has in fact developed its own proposals for that-but the circumstances of infertility licensing are so specific
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I apologise for speaking only about the HFEA in relation to a Bill that concerns so many other bodies with which your Lordships are concerned. However, the general principle that I have applied to the HFEA should be brought to them all, one by one, with careful and detailed consideration. That cannot be done simply by the House in Committee; it needs a Select Committee. As it stands, the Bill is so sweeping in its scope that it is difficult to see how it can have the confidence of the public. However, I believe that careful examination by a Select Committee would mean that people were confident about its final proposals. The Minister is concerned about undue delay, but the amendment tabled by the noble Lord, Lord Maclennan of Rogart, to the amendment sets a clear limit on that delay and, in my opinion, should be supported.
A number of your Lordships have raised the question of how such a Select Committee should go about its task. It has been widely recognised that there is already an overlapping consensus about a good number, perhaps the majority, of public bodies. The Select Committee could quickly note these and then move on to give detailed consideration to those where there is real concern about the proposals in the Bill. While I know that the Committee stage in this House will be invaluable, that process would be greatly helped by work done first by a Select Committee meeting under a strict timetable.
6.24 pm
Lord Warner: My Lords, I declare an interest as the architect and first chairman of the Youth Justice Board, which is one of the bodies listed for the chop in Schedule 1 to the Bill. I should also confess to my past as a quango culler, originally as a civil servant after the 1979 election and, more latterly, as a Health Minister in 2003-04, when I conducted my own pruning exercise on Department of Health arm's-length bodies. I have a bit of previous in this area but, even in my most hubristic ministerial moments, I never thought that I could get away with as sharp a piece of legislative practice as this Bill, with its inconsistencies, lack of impact assessments and granting of sweeping powers to Ministers to dismember what Parliament has authorised.
The Labour Government recognised that the periodical pruning of arm's-length bodies was needed, both in my arm's-length body review and indeed in the Smarter Government document published in December 2009. My own exercise reduced the number of Department of Health arm's-length bodies from about 40 to 20 over three to four years and the annual cost of running them by over £1 billion. We were not afraid to be radical, but the changes were made with appropriate parliamentary scrutiny of all the legislation involved, including the proper use of primary legislation, and there was little by way of expensive compulsory redundancy, which, in the Government's haste, may turn out to be a rather expensive aspect of some of their changes.
At the end of last year, the previous Government committed to merging or abolishing another 120 arm's-length bodies across government, which would deliver
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Many arm's-length bodies have an important role to play in the government of a complex society such as our own, even if they are too often unfairly demonised. They are particularly necessary when we wish to secure special technical knowledge and skills, the objective gathering of data or the securing of political impartiality. This was largely recognised by Francis Maude in his Written Statement on 14 October and, indeed, again by the Minister today, but when you look at the way in which this collection of bodies has been assembled in the Bill, it is not terribly clear that these criteria have been applied to them. The Government do not seem to have clearly lived by their own rules.
As I recall, the Government started this exercise with the perfectly respectable aim of saving money, but they seem to have found that a bit more difficult to do than they expected. We now seem to have moved to a different set of justifications-of, I suggest, a slightly more dubious nature-about taking functions back inside government departments and improving transparency and accountability. As someone who worked as a civil servant for a quarter of a century in government departments, I advise them to think of some better arguments than that. We still do not know what the costs and savings are of the Government's proposals and we need to get a better handle on that issue if it is at the core of some of the proposals.
Having been rather unkind to the Government so far, I compliment them on their approach in the Department of Health, where in July Andrew Lansley produced a pretty coherent review of health arm's-length bodies. I suggest that other departments would have done well to emulate that. I do not necessarily agree with all the changes that he proposes in that document; I will particularly want to challenge and probe further areas such as the Human Tissue Authority and the Human Fertilisation and Embryology Authority, to which the noble and right reverend Lord referred. However, at least I can understand the Government's thinking on the health arm's-length bodies. That coherence of thinking seems to be lacking in many of the other departments and I am left with an uneasy suspicion that often they were asked to produce a quota by the Cabinet Office. Even in the Department of Health proposals there is the risky proposition of tampering with the world-leading Human Fertilisation and Embryology Authority, which was set up after enormous parliamentary scrutiny. We are also going to tinker again with the Human Tissue Authority, which was a matter of great sensitivity, as I know to my cost because I had to take it through your Lordships' House.
A casual handing over of power to Ministers in areas as sensitive as these is neither good nor efficient government. This House's own Constitution Committee has set out why this Bill is such a constitutionally unsound way of doing what the Government quite
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However, that does not mean giving Ministers carte blanche to reform, merge or abolish nearly 500 bodies without more parliamentary involvement than this Bill provides for. It also seems extremely odd to have another 150 bodies listed under Schedule 7 and kept in a state of unending uncertainty as to precisely what may happen to them. This seems to me, as a long-standing public sector manager, hardly a recipe for encouraging good performance by a stable and secure staff. The noble and learned Lord, Lord Woolf, and others have done a pretty good demolition job on Schedule 7, without needing much more from me.
Finally, I refer quickly to the issue of bodies that we know the Government have it in mind to change but which do not appear in the Bill. I will take just the high-profile example of the Audit Commission, which appears on page 5 of the Cabinet Office's list for abolition, dated 14 October. I was surprised when the Bill was published, given the criticisms of the Audit Commission by Eric Pickles, that it did not appear. This would have given us a chance to ask the Minister to share with the House his boss's no doubt carefully considered ideas on how he was going to have the commission's functions discharged even more cheaply than through the commission's own proposed reductions in expenditure and how he was going to ensure cost-effective audit of local government. I was looking forward to hearing about these things. I am happy to table an amendment in Committee to add the commission to Schedule 1 so that we can hear from the Benches opposite how they will deal with some of these other bodies that they have in their sights.
It is clear from speeches so far that the Government have a lot of explaining to do on this Bill. Many of us will want to give them ample opportunity to do so with amendments in Committee and at later stages. If the Government want to use the approaches in the Bill, they need to reduce what the noble and learned Lord, Lord Mayhew, has described as the industrial scale of the enterprise and make sure that Ministers' powers are subjected to proper parliamentary scrutiny.
6.34 pm
Lord Howe of Aberavon: My Lords, it is curious for me to reflect on one body, listed in Schedule 5, which I played some part in creating some 37 years ago-that is, the Office of Fair Trading, of which the noble Lord, Lord Borrie, became the second chairman. He is no longer in his place. The extent of the attention paid to the creation of that body at that time, when we were
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More seriously, I understand the broad purpose of the Bill, and I understand and respect my noble friend the Minister's approach to it. He has already indicated that he is prepared to listen to what we say today in his handling of the Bill. It is of the utmost importance that that should be so. He must understand the anxiety of this House, which is serious and well founded, partly because of our experience under the previous Administration. There were some remarkable examples of ill considered legislation; I suppose the classic one was the destruction of the office of Lord Chancellor. The committees of this House, which have worked in proper study, as the Constitution Committee has done in this case, are made up of people to whom attention should be paid. I am sure the Minister will be careful to do so.
For example, after several years of that treatment, the noble Lord, Lord Butler of Brockwell, called a debate in Grand Committee in 2008 on how a good Government should deal with bodies' recommendations and the attention they should pay to preparing legislation. The summing up in that debate should be respected by the Government. It is striking that the most compact summary of the advice from that debate is offered to the Government in the representations made by the body that is listed first in Schedule 1-the Administrative Justice and Tribunals Council. It says, quite sharply, "Right first time". It has emphasised the importance of improving government decision-making in the first instance, thereby avoiding costly appeals and other procedures. It is important to note that some of the wisest advice given to the Government comes from one of their first candidates for ruthless examination. That is a serious point. I do not believe that advice has been followed, despite the efforts being made by my noble friend.
What is striking is the foundation of assumptions by the appearance of the different bodies in these several schedules. Four hundred and eighty one organisations are on trial and 192 of them are already condemned to death. That is a remarkable choice to make. I make no comparisons with any other country. All the others face trial and are at least under threat of being convicted of something just short of murder or manslaughter. It is a remarkable state of affairs. That is why I see the force of the recommendations of the Constitution Committee. As it is now designed, the Bill strikes at the very heart of our constitutional system.
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I see that some bodies are already protesting about their prospects as they find themselves facing trial in the months ahead. The coroners' representative body, for example, protests understandably at the jettisoning of key elements of the Coroners and Justice Act 2009 by abolishing the office of chief coroner. It seems very hasty to put an organisation that was created in the past two years in that position. That is not the only example of what might be seen as such unduly hasty management of the decision-taking. One therefore asks quite how the general policy is shaped for taking these decisions. The objective in some cases is said to be to take away power from the quangos in question and hand it back to the Executive for managerial supervision. I think this is driven by the feeling that if it is under the control of an elected body, it is thereby better protected. An elected body sounds benign in that context, but a less benign description of an elected body is the Executive, which has to take account of the legislature and the judiciary. That is why one is again anxious about the decisions being taken and whether the precise steps of conviction but not execution are being properly taken. That is why I join the procession of former law officers-people can hardly remember me as a humble Solicitor-General, who last wore his wigs in 1972-my roommate, the noble and learned Lord, Lord Mayhew, and the noble and learned Baroness, Lady Scotland, and applaud enthusiastically the former Lord Chief Justice, the noble and learned Lord, Lord Woolf. His presence here, incidentally, illustrates the value we get from such senior judicial figures. Whatever we may find ourselves doing in relation to this House, the input of such people is enormously important. The noble and learned Lord's representations should be taken fully into account by the Government.
That is the substance of my evidence save one forthcoming point on which I wish to close. The emphasis of what I say is that, yes, the Bill can be justified as a vehicle which we need to have on the ground moving forward, but it needs to have considerable treatment of a conscientious kind, taking account of the constitutional and substantive matters discussed in this House. I know that my noble friend will take serious account of that. The Bill is legitimate but needs a lot of improvement.
I give a warning of a different kind as I did at a different stage play a different role in relation to an operation of this kind when in 1979 I was Chancellor of the Exchequer and scraping around trying to save money. One of the decisions I took in that regard was to provide for the abolition of the Metrication Board. That board had been unwise enough to include in its latest report that it was near the completion of its task. I declare an interest here in that I am-and have been for a long time-the patron of the UK Metric Association. One starts from the premise that the Magna Carta, to which we should pay respect in this context, requires specifically that there should be only one set of measurements throughout the kingdom, whether of weight, distance or anything else, so that is a foundation which we ought to respect. When the House of Commons considered the question in 1862, the Select Committee unanimously recommended the completion of the metrication process. In 1904, this House passed a Bill proposing to achieve that and in
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I am really pointing out that my noble friend might do terrible things. He might be destroying something as important and potentially valuable as the Metrication Board, so he should take care. Had we not destroyed it, we would not have fallen behind every English-speaking nation in the world, barring perhaps the United States although it is half metric. The Pentagon, NASA and most of the automobile industry are fully metric. NASA has lost one mission to Mars at the cost of $125 million because one imperial measurement was inserted into a machine at the wrong time. We are suffering hazards of that kind because of my folly in 1979. I confess that continuously in the hope that people will agree with me that we ought to put it right.
However, I hope that my noble friend will take this matter seriously. This is an important Bill but it requires to be examined in the light of the criticisms that have been made. It is a legitimate Bill but it is very important that that legitimacy should be firmly established. I leave open the question whether the Bill should be examined by a Select Committee or a Committee of the Whole House but it requires care and attention.
6.45 pm
Lord Beecham: My Lords, it seems to me that the Government are approaching the Bill in the spirit of Alice in Wonderland. I do not mean to imply that they are emulating the mad hatter's tea party, although it is possible to discern occasional current Tea Party tendencies on the government Benches. I am reminded of the trial scene in Alice, where the cards cried, "Sentence first-verdict afterwards". No doubt if the Minister had been at Lewis Carroll's elbow, we would have had the trial last of all because that is really the way in which the Government have proceeded. They have decided on abolition first. They are looking at the cost of abolition and the estimates of savings afterwards and they will consider functions last of all.
I have the greatest respect and, indeed, affection for the noble Baroness, Lady Hanham-she is not in her place today-partly because she comes from the north-east, having been born and bred in South Shields, and partly because she was a very good colleague in the Association of Metropolitan Authorities and the Local Government Association. However, I have had a surreal exchange with the noble Baroness on some of the issues raised in the Bill in the form of Written Questions and what purported to be answers to those Questions. I asked particularly about the costs of abolition of the Audit Commission and of government offices, which are not quangos but part of government. Nevertheless,
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- "what estimates of the costs of abolishing the Audit Commission were supplied by its chief executive ... when they were received",
and whether the Government intended to publish those costs. The reply referred again to the ongoing work of estimating the costs. It acknowledged that the chief executive of the commission had in August, and again in October,
- "provided my department with information on certain of the commission's potential liabilities".-[Official Report, 2/11/10; cols. WA 378-79.]
Curiously, the Answer did not identify the figures that had been supplied, despite the fact that the Question explicitly sought that information.
Similarly, in relation to government offices, there was again an indication that,
had been reached in the spending review process. The Answer continued that there were,
in which I have a particular interest. More relevantly perhaps, it stated:
"Departments have been considering which functions need to continue ... but no department has made a decision on continuing functions".-[Official Report, 2/11/10; col. WA 386.]
No one in this House disagrees that reform is necessary, but this is a curious way of reforming bodies of that kind.
I have in my time had some issues with the Audit Commission. I recall a chairman of the Audit Commission ringing me up and complaining in very strident terms about the attitude of the Local Government Association on one occasion. Nevertheless, it seems to me that the commission has a significant role. It is not included in the Bill, of course, but we expect to see it included in the decentralisation Bill which will presumably come to this House fairly soon; it is a manifestation of the Secretary of State's particular animus against the Audit Commission that perhaps he wants to be sure to claim paternity of its abolition in his own Bill. However, there is actually a serious question about the role that has to be carried out; it is not a question of just auditing councils' books and costs. The Audit Commission has a wider role; it performs an invaluable service in looking at services across a range of functions, including health. It is particularly relevant at a time when Total Place, or community budgeting as it is now being called, is coming into being-that there should be a body independent of the service providers not only looking at individual areas of what is happening across the range of services, but doing so in such a way that you can draw comparisons from one area to another and evaluate how policy is being developed and implemented across the country. That is unlikely to happen and it certainly does not seem to have been identified as an issue thus far.
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Among the wide range of other bodies that have been identified, some of which have been touched on, I want to refer particularly to the regional development agencies. In the 1980s, as leader of Newcastle City Council, I worked with other local authorities, local and national politicians from all three main parties, and both sides of industry-private sector and trade unions-and we formed the Northern Development Company, which was the forerunner of what became the statutory regional development agency. It made a significant but limited contribution, because it had little in the way of resources. Now the RDAs are to be abolished-all of them-despite the fact that, certainly in the north-east and I think in other areas, there is a strong view from the private sector, as much as anyone else, that these bodies should be continued. Incidentally, in the north-east there is already a significant impact on tourism, which was the subject of a Question and helpful answers from the Minister this afternoon. However, the agency will go and it is already clear that there is a significant impact. What we will be left with in the region is a local enterprise partnership, which will have no resources and be powerless and penniless, as my noble friend Lord Liddle, pointed out. There will be more than one such body in the region, probably competing with one another; that is hardly conducive to the kind of regeneration that one would like to see, but which is unlikely to be achieved with the rather pitiful allocation of £1.4 billion over the next few years.
There are therefore serious questions about the implications of what is being done, not least in terms of the two key principles which many of your Lordships have referred to-accountability and independence. It does not seem to follow, even if functions are transferred to charities or other organisations of that kind, that accountability is necessarily thereby enhanced. That certainly does not follow if those functions are left with departments and civil servants. Of course, if the proposals of the Secretary of State go through, a vast body will be created to administer a very significant part of the National Health Service nationally-a super-quango, if ever there were one.
Some charities may be tempted by the prospect of obtaining resources alongside new functions. Like many of your Lordships, I have received a briefing from the national Citizens Advice. I join a previous speaker in expressing some doubt as to whether that organisation, which does enormously valuable work on the ground locally-I was once involved in forming a CAB and at other times acted as an adviser-is the right one to take on the serious and major issues of consumer protection and advice across the whole piece. That matter will no doubt be developed.
There is clearly a case for periodically and thoroughly reviewing the role of organisations of this kind. We do not need to join the late Screaming Lord Sutch, who inquired, "Why is there only one Monopolies Commission?". We do not have to encourage the continuation of unnecessary bodies, but there is the constitutional point which many noble Lords have raised with considerable eloquence and force. That relates to the use of Henry VIII powers. I was never sure whether the relevant analogy was his recourse to decapitation instead of marriage guidance, or whether,
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6.55 pm
Baroness Stern: My Lords, I, too, share the concerns expressed around your Lordships' House about the principles of the Bill. They have been very well expressed by many noble Lords, so I intend to concentrate on what can broadly be called the human rights and rule of law area. I am most grateful to the noble and learned Lord, Lord Woolf, for his extremely compelling exposition of the implications of Schedule 7 in particular for the independence of the judiciary.
I want to make a few remarks about bodies such as the prisons inspectorate and the independent monitoring boards. I must declare some interests as the president of the Association of Members of Independent Monitoring Boards and a trustee of the International Centre for Prison Studies. We have in this country over the past 20 years developed a range of independent bodies that ensure that those who have power over others exercise it lawfully and proportionately. This is an important element of the institutional arrangements of any civilised society. Our arrangements for this form of control and accountability are admired around the world. Delegations come here all the time to see them and learn from them.
Therefore, to see listed in Schedule 7 Her Majesty's Chief Inspector of Prisons, the independent monitoring boards of prisons, the Independent Police Complaints Commission and the visiting committees appointed for removal centres under Section 152 of the Immigration and Asylum Act 1999 causes enormous concern. It seems as if so many protections for so many vulnerable people and so much effort to ensure that the law is kept and ethical principles are observed can be swept away simply by a body being moved from Schedule 7 -the pending tray, as the noble Lord, Lord Borrie, described it-to Schedule 1, the action tray, with scant safeguards to slow down that progression. This streamlined procedure is in stark contrast to the many years of painstaking work, deliberation and commitment that went into the creation of these bodes.
The independent monitoring boards, which are composed of volunteers-cost, therefore, cannot be a huge consideration-attached to each prison, and now each immigration removal centre, go back to Tudor times, when magistrates of the county Quarter Sessions had a hand in the administration and regulation of local prisons and appointed visiting committees for specific responsibilities. Since then, they have developed and been subject to many changes, which have gone through Parliament in primary legislation. The Minister, in his helpful opening remarks, claimed that the Bill
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I return for a moment to the Chief Inspector of Prisons. The position emerged from a huge amount of deliberation and consultation and is now a requirement for the United Kingdom to be able to meet its obligations under the optional protocol to the convention against torture. Many noble Lords will remember an attempt by the previous Government in the Police and Justice Bill to merge the prisons inspectorate into a super-inspectorate and to put it under ministerial control. Many will remember the stand taken in this House against the proposal and the work done by the noble Lord, Lord Ramsbotham. The proposal was defeated by 211 votes to 98. Members of both current governing parties in the coalition were among the 211, as were a number of noble Lords from the current opposition Benches. Clearly, any Government can take their decisions as they wish, and change is necessary and often for the good, but the decisions should be made democratically by Parliament in a proper way, with proper consideration and debate.
The bodies that I have mentioned appear in Schedule 7. I note the Minister's assurance that their presence there does not mean that any action will be taken. However, if that is so, why are they there? I would be grateful if the Minister would explain exactly what being in Schedule 7 means. I am sure that from now on the bodies in Schedule 7 will feel a sense of dread hanging over them. This is a threat to their independence and their standing as proper oversight mechanisms for the actions of those who work for the Government, exercising onerous responsibilities in our name.
Finally, I will say a word about the chief coroner, who is already, as the noble and learned Lord, Lord Howe of Aberavon, suggested, in the execution chamber. The Minister described all these bodies as quangos that the public do not like because they are unaccountable. However, I am not entirely sure that the public, and especially any member of the public who has been connected with a death and an inquest, will feel that way about the chief coroner. With the abolition of the post of chief coroner, we will lose another element of oversight in the vital area of the right to life and the rights of families of victims of deaths where the state is involved. It should be no surprise that Inquest and the British Legion are very concerned about the abolition of the post of chief coroner. The post was introduced to ensure accountability and judicial oversight-to deal, for instance, with situations where the delay in holding an inquest is much too long, which causes enormous distress to the families of the deceased. It deals with appeals by bereaved families against coroners' decisions and ensures that the recommendations made by coroners about changing practices to avoid further deaths are taken up.
The Government have made many encouraging statements about their commitment to justice, human rights and the rule of law. These have been warmly welcomed. Sadly, at the moment, the Bill does not exemplify that approach. I am very encouraged by the Minister's assurance that the concerns expressed here will be listened to and I hope that we shall see substantial changes to the Bill.
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7.04 pm
Lord Knight of Weymouth: My Lords, like my noble friend Lady Royall, I think that this is a bad Bill. We could describe it as the Donald Rumsfeld Bill, as it deals with known knowns, known unknowns and, in Schedule 7, unknown unknowns. This was best put in the RSPB's excellent briefing, which states:
"In summary, the Public Bodies Bill is an enabling Bill framed along the lines of, 'We're going to change lots of things, some of which we know now, some of which we will work out soon and some of which we can't tell you anything about because we haven't thought of them at all yet, but please give us the power to do all of this'".
Suffice to say that the RSPB-a big society with more members than all the political parties in this country put together-is very unhappy with the Bill. It is worried about the environmental consequences of the disposal of public land, it worries that environmental considerations will be secondary when these powers are used, and it is very concerned about the consequences for biodiversity of the measures against the Forestry Commission. It is among many organisations that have contacted noble Lords, urging opposition to the Bill.
Like so many noble Lords, I disagree with the Minister's assertion that this brings in a transparent legislative framework. Rather, this skeleton Bill is an insult to parliamentary scrutiny-and I am afraid that the insult is doubled by Ministers claiming to act in the name of increasing accountability. It also feels so unnecessary. As has been said, few people disagree with rationalising the number and scope of arm's-length bodies. The first Bill that I took through Parliament as a Minister became the Natural Environment and Rural Communities Act, which among other things culled a large number of arm's-length bodies-the agricultural levy boards-and also merged English Nature, the Rural Development Service and the Countryside Agency into Natural England and the Commission for Rural Communities. Section 8 of that Act also includes powers to transfer functions and powers between any of the arm's-length bodies, including the Forestry Commission, within the Defra family-but with consent.
Therefore, I have my own track record in this area, and the possibility of cross-party consensus is there, if only the Government stopped rushing everything to get headlines and photo opportunities for their personal photographers. The previous Government published proposals for considerable rationalisation in their Smarter Government White Paper last December, and in the Treasury paper last March entitled Reforming Arm's Length Bodies. My argument is not with the principle, but, as the noble Lord, Lord Maclennan, said, with the application. Yes, I disagree with some of the detail relating to individual bodies such as the RDAs. We can also learn from the excellent report from the Institute for Government on how we as Ministers manage arm's-length bodies better. However, we need the Select Committee that I will tonight vote to establish to agree an acceptable process, because the principle of scrutiny must be respected.
As a Minister in the other place, I took five Bills through Parliament that included changes in primary legislation to 16 of these bodies, and the setting up of seven of them. This meant spending hours being scrutinised on the scope and functions of the bodies, which
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The principle of independence must also be respected. Schedule 7-the zombie list, the list of the living dead-includes Ofsted, Her Majesty's Chief Inspector of Education, Children's Services and Skills, Ofqual and the School Teachers' Review Body, along with many other bodies with which I am less familiar. These bodies, by definition, must be independent of government. The publication of Ofsted's annual report, for example, was always a very difficult day for me as a schools Minister because of Ofsted's authority born of its independence. My noble friend Lady Andrews made some powerful points about Schedule 7 bodies. How will they retain their independence when a Minister can abolish them by order thanks to the Bill?
Then there is the haste. Why have the bodies concerned barely been consulted? The national park authorities have contacted me to make important points about their special status and to tell me how little prior notice they had before this measure was announced. In his response to the noble Lord, Lord Foulkes, earlier, the Minister claimed that the devolved Administrations had been properly consulted. I gather that the Welsh Assembly Government were given one week's notice of the abolition of the Agricultural Wages Board and that the nature of the consultation was simply to ask what they were going to do now that the decision had been made to destroy the protection of low-wage workers in England.
Not all the bodies that are being abolished are on this list. Becta, for example, which is not on any of the lists, was given 24 hours' notice of its demise and, true to the recent catalogue of shambolic decisions by the Government, the Secretary of State for Education was keener on headlines than on probity. Becta is a charity. The Secretary of State has the power to cease funding it but he has no power to close it altogether. As it was, he put the charity's chief executive and board in a dreadful position, with their staff waking up to hear about their redundancies on the news.
Earlier, I mentioned the abolition of the Agricultural Wages Board-a body that has continued successfully without any strike action in this country since 1923. In Schedule 7 is listed a similar body on which Mr Gove has already made a decision. The Minister claims that
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We do not have to do this. If Schedule 7 were deleted, if another Bill, such as a localism Bill, were used to deal with bodies such as the RDAs, and if other powers, such as those over the Defra family in the Natural Environment and Rural Communities Act, were used, we might begin to have a Bill worth proper scrutiny. Until then, we should give it to a Select Committee to try to lick it into shape.
7.12 pm
Lord Marlesford: My Lords, this Bill is clearly flawed. It may even be deeply flawed. However, we have heard much about the flaws and I want to focus on the purpose of the Bill, which I believe to be urgent and important. It is nothing less than to improve a great swathe of state activity by making it more relevant, less intrusive and more cost-effective. The Bill reflects the 2010 manifestos of both coalition parties.
First, I declare my own interests. Declaring interests can reveal the experiences which tempt one, perhaps even qualify one, to comment in debate. I was for 12 years a countryside commissioner and for eight years a rural development commissioner. Those two quangos-the Countryside Commission and the Rural Development Commission-were long ago absorbed into Natural England. I was subsequently, for five years, the chairman of the Council for the Protection of Rural England, which is not a quango but a pressure group, and unashamedly so. For the past 10 years, I have been president of the Suffolk Preservation Society, which is a county branch of the CPRE.
The basic purpose of quangos, and indeed other bodies with delegated powers, is to advise government on public policy and improve their administration. There are four elements to it. The first is to hive off to separate management some government functions, as authorised by Parliament. This is to ensure that scarce Civil Service talent, normally recruited for policy advice rather than management of resources, is not diverted to managing special and often very technical functions. The second is to support and inform the political judgment of overburdened departmental Ministers by bringing in part-time appointees as the governing bodies of the quangos with sensitivity to the political perspective of the elected Government. The third is to identify and, where possible, anticipate particular problems within the remit of the quango and to advise Ministers on how to deal with them. The fourth is to be the recipient of, and to evaluate, the views of pressure groups in their field and to advise Ministers how they should react to the demands of those pressure groups. That is a crucial role for the governing bodies of quangos.
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I say at once that a number of quangos are doing a very fine job. However, the problem is that some have grown to have a culture, ethos and agenda of their own, often quite different from the aims and policies of the Government of the day. They have become empire-building special-interest groups, and members of the governing body have sometimes "gone native", no longer exercising proper control over their staff or the use of resources.
In making its case, a pressure group overstates that case-in as covert a manner as may be expedient. It does this to get the appropriate action and resources to implement its objectives. It is not there to have a balanced view on what should be done. Its legitimate role is to get the biggest share of the cake that it can and to negate other interests, private or public, if they get in its way. Therefore, it is obvious that if a quango gets too close to a pressure group or, worse still, behaves as a pressure group either in administration, expenditure decisions or, most of all, in advice to Ministers, it can become counterproductive and lose all sense of proportion. The imposition of disproportionate compliance costs on either other government agencies or the private sector is an example.
A weak Minister-and all Governments have them-will have little hope of bringing a deviant quango under control. Resources will be misused and policies distorted. Quangos can be harder than government departments for Parliament to control because their governing bodies are not directly answerable to Parliament. Thus, quangos can add to the democratic deficit.
This Bill is one of the measures that the Government are taking to deal with the budget deficit, so let me stress a point which should be obvious to all, although I have found it to be generally unrecognised by the quangos themselves. However, once it is made it is not denied. It is that the cost to any business, whether corporate or private, of compliance with the mandate of quangos is a business cost and therefore tax-deductible. That means of course that a proportion of that cost-up to 28 per cent if it is corporation tax or up to 50 per cent if it relates to a sole trader such as a farmer-comes directly from the Exchequer. Compliance costs therefore reduce the tax collected by HMRC and make the balancing of the budget that much harder. Therefore the Government of the day have a shared interest with both business and the public in ensuring that regulation, and thus the cost of compliance, is minimal and, above all, proportionate.
It has become increasingly apparent that some quangos, and some of the specialised departments of both central and local government, have been behaving, especially in their regulatory role, in a disproportionate, intrusive and sometimes insensitive manner. At times this seems to reflect the systemic arrogance of bureaucrats; sometimes it is simply the jobsworth attitude of rather second-rate individuals who have been nestling in the protective cocoons of their organisations. More recently, some of them have behaved as though their function, or at least their opportunity, is job creation. With the credit crunch, job preservation at all costs has become their priority. These are some of the things that explain some of the opposition to measures in this Bill.
I shall illustrate my case with one quango which has, in my view, behaved with scant regard for the
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The amalgamation of quangos may not be a solution. Those on the governing body, especially if they are to apply their wisdom and experience, have limited time available. They have busy outside lives. If they are to be fully effective the scope of the quango must not be so wide that they cannot follow, monitor and control the quango. Smaller more focused quangos, perhaps sharing administrative overheads with others, may be more cost effective. Thus a reduction in the number of quangos is not necessarily a good test of this Bill.
I am sure that we have to improve this Bill, but I believe that the intentions behind it are sound and action is well overdue. I support the intention of this Bill and I support the need to improve it, but I shall not support proposals to delay it.
7.21 pm
Lord Clark of Windermere: My Lords, the noble Lord, Lord Marlesford, has quite rightly reminded us that the proposal to cull quangos was in the manifestos of both coalition partners. Therefore, I accept the purpose of the Bill. However, like so many other noble Lords who have spoken today, I am concerned about the means by which the Government propose to do this. I accept immediately that this is not an easy solution but, on the other hand, I do not apologise for reiterating how damning and how devastating the report of the Constitution Committee is. We all know that one can find reasons and explanations for actions such as introducing a Henry VIII clause. That may seem good at the time but a principle is involved, and that principle is almost sacrosanct.
I find it ironic that when the Minister in charge of the Bill in the other House, Mr Francis Maude, introduced it, and justified the need for the Bill, he argued that it was needed to increase political accountability and more accountability to the legislatures. I think we would all go along with that. However, it is ironic that the means by which it proposes to do this is probably
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- "the ordinary constitutional position in the United Kingdom is that primary legislation is amended or repealed only by Parliament".
"Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided".
In no way will that happen in this case.
It might be worth reminding the outside world what is being proposed. I accept that this is not just the whim of the Minister. Orders will be laid before both Houses of Parliament but they will be only an hour-and-a-half duration and there will be no means of amending them. We all know that, but I am not sure the wider world knows that. I am not sure that is democratic, when originally hours and days may have been spent in both Houses coming to the decision. That is why there is so much concern in this House, although we appreciate the good will and intent of the Minister-I appreciate that straightaway.
I want to turn my attention to something which I know a little about. That concerns Clauses 17 and 18 which relate to the Forestry Commission. Until just under a year ago I chaired that body for eight years and I thoroughly enjoyed doing so. I am a great supporter of the Forestry Commission. If I felt that the forests and woodlands in this country could be maintained to the same standard as they are maintained at the moment by a different form of ownership, I would look at it. I feel that challenge is not met in this Bill. However, I think that the Forestry Commission is different from 99 per cent of the other arm's-length bodies in that it is a government department. It is a non-ministerial government department and every single employee of the Forestry Commission is a civil servant, which goes directly against the definition by the Cabinet Office of the non-departmental public bodies, quangos. I am a little confused about why there are two clauses specifically concerning the Forestry Commission. That jars a little. Only the Forestry Commission has so much of the Bill devoted to it.
As I say, all the employees of the Forestry Commission are civil servants, which means that the Forestry Commission is at a disadvantage compared with 99 per cent of the other bodies in that it is neutral and it cannot discuss anything with Members of Parliament or Members of this House. Would the Minister consider looking at the possibility of allowing the Forestry Commission's senior officials to provide factual information to Members of this House and Members of another place? If we are to make considered judgments on this matter on the two clauses specific to the Forestry Commission, it might be helpful to get factual information-not opinion-from the Forestry Commission's senior civil servants. I hope that the Minister will look into that and be able to give us an assurance in due course.
One of the difficulties we are wrestling with-it may be why the two clauses are there in the Bill-is the rather complicated structure of the Forestry Commission, which was created as a GB body in 1919. In 1998, in essence, forestry was, apart from plant health and
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That concerns me, because Clause 18 talks about the powers of the commissioners and the Minister having the authority to change the power of the commissioners. Will that be only English commissioners, or will he have the authority-is it the Government's intent-to change the powers of the Scottish and Welsh commissioners? If we are trying to retain a GB body, it would concern me if different commissioners had different powers.
I have another couple of questions that I would like to ask the Minister. The Wildlife and Countryside Act 1985 specifically requires the Forestry Commission to balance its economic powers-to produce timber, et cetera-with environmental concerns. Am I right in thinking that the Minister could make an order under Clause 17 or 18 which would remove that ministerial, or governmental, requirement to have a balance? Following on from that, the Forestry Commission has granted access on foot under the Countryside and Rights of Way Act on almost all its freehold land. Is that now at risk? I know that the Minister has said that there will be no threat to the access agreement currently in force, but will the Government give us an absolute assurance that the CROW Act provisions giving access on foot in perpetuity will be carried out, despite the fact that it may mean that they will not get quite as much money for the sale of any land? Also, the Forestry Commission has a very generous interpretation of access for bicycles and horses. Can the Minister give us any assurance on that issue?
There are many other issues to which one could allude-the Crichel Down principle when it comes to selling off, or the attraction to rich people of no inheritance tax on forest land. I end with this point. The net cost of the Forestry Commission estate was £10 million-30 pence per person in this country. I do not think that we could get that value for money from any other organisation.
7.32 pm
Baroness Scott of Needham Market: My Lords, perhaps I should start in the spirit of the confessional, because I am a reformed quangocrat. It was a habit that started innocently enough with the occasional meeting of a small regulator. Then I went on to the Commission for Integrated Transport and, hopelessly hooked, went on to the hard stuff and became a member of the board of the Audit Commission. I have to say that everyone I worked with in those bodies-the staff and non-executives alike-was extremely committed to their tasks and genuinely cared about serving the
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However, we must all admit that we have been too quick in the past-and I fear we will be in future-to reach for the quango as a policy response to every problem that comes before us. I heard an expression in another context which covers it, which is, "If you have a hammer, all problems look like nails". I fear that that is where we are with quangos-we just create them. It is time to have a serious debate about how we deliver certain public functions. Should they be done by civil servants with ministerial oversight or do we genuinely need outside expertise? Can voluntary organisations do the job at least as well, if not better, particularly where there is a large campaigning element? Are the public better served in some areas by independent oversight, or is accountability more important? What we do about the use of patronage in making the appointments? How do we deal with the growing costs of the burgeoning number of arm's-length bodies, all of which require offices, headed notepaper and all the other corporate paraphernalia? How do we deter those bodies from a slow extension of the task for which they were originally set up? We have all seen the tendency for mission creep. Who oversees the overseers, audits the auditors and regulates the regulators?
We need a fundamental review, and one that moves beyond a numbers game. I know that the Government are very focused on the need to reduce costs, and that is understandable, but many of these organisations do not spend very much money. Although there may be very good reasons for looking at them, it will not save much money. The National Audit Office has estimated that 80 per cent of NDPB expenditure is located in just 15 organisations, so you might want to start there. But then, 75 per cent of their costs are grants, which are just passed on to others, so they will not be saved by the act of either abolition or merger-you would need a change of policy direction.
There is no doubt in my mind that departments need to look at the beam in their own eye. Many of them micromanage the bodies which report to them and create unnecessary administrative burdens. In other cases, departments just lose interest in their bodies. Then you get poor communication and organisations completely out of touch with what the department and the Government are seeking to achieve. In other cases, those arm's-length bodies end up as a kind of sandwich between competing interests. I know that when I was on the board of the Audit Commission, at one point we were engaged in a process of reducing the regulatory burden, in line with the wishes of our sponsoring department, while civil servants and Ministers in other departments were constantly coming to say that they wanted this performance management scheme, or some other regulatory burden, added. We need to look at that.
The great range of organisations contained in the Bill, from the Wool Marketing Board to Channel 4 and from the Theatres Trust to the Equality and Human Rights Commission, is a demonstration of the complexity of arrangements that have developed over the past 30 or 40 years. In the case of some of them, for example, Channel 4, it is questionable whether
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Many of these organisations were formed only after intense parliamentary scrutiny of primary legislation and, in many cases, were better for it. The fear here is that change imposed by Ministers after minimal consultation will result in imperfect statutory instruments coming before Parliament and Members-particularly in this House, with all their expertise-will see all the flaws but be pretty impotent to do anything about it, given that the orders will be unamendable, that there will be a 90-minute guillotine, that they will be grouped together and that, finally, we have only the nuclear option of voting the whole thing down.
It is already apparent from the range of organisations that has been in touch with me and other noble Lords that, whatever the Government's intention, the creation of Schedule 7 has resulted in a sort of death row for quangos. They know that the short timescale required to impose change by statutory instrument will create a climate of uncertainty which will affect their operational management and recruitment and make long-term decision-making virtually impossible. It will also have a very negative effect on the relationship between the departments and the organisations. Where those organisations have a primary function of holding the Government to account, it will compromise that very function in the eyes of the public by having such an impermanent relationship. Some of the consequences are absurd. The Office of the Commissioner for Public Appointments, set up to ensure a fair and unpartisan appointments procedure, could itself be changed as a result of the Bill.
It is funny how people tend to think about constitutions as dry things that do not affect the stuff of everyday life, because here we have a constitutional issue which demonstrates how the constitution is inextricably linked with good governance. I am dismayed that, over the years, Whitehall fails to learn this. I quite enjoyed the outrage from noble Lords on the Labour Benches, and I gently remind them that the Constitution Committee notes:
"The House will recall various occasions in recent years on which Parliament has sought to resist executive proposals for Henry VIII powers".
In its briefing, Liberty comments:
"This Bill follows a trend popular with the last Government of avoiding the necessary rigours of parliamentary scrutiny".
Let us not pretend that this is a problem which has just emerged since May. This has been many years in the gestation and is a classic Parliament versus Executive problem.
These bodies-quangos, arm's-length public bodies, whatever we call them-have become a fundamental part of British public life. Reform is certainly necessary, but as the excellent Institute for Government report is so aptly titled, we should Read Before Burning. Its
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I welcome the Minister's words at the start of this debate that the Government will be prepared to look at improving the Bill. I urge them to take a look at the super-affirmative procedures which will improve consultation and improve the ability of this House particularly to scrutinise. We need to remove the provisions for omnibus orders to come to this House, and we need to allow this House to use the expertise that it undoubtedly has.
7.40 pm
Baroness Henig: My Lords, I declare an interest as chair of the Security Industry Authority and president of the Association of Police Authorities. I share the great concern of colleagues at the constitutional implications of this Bill, but my main concern this evening is to speak on behalf of those who work with and in the private security sector throughout the UK, but especially in Scotland and Northern Ireland, and to convey their disbelief, their dismay and their anger at the Government's uninformed and high-handed attempts to deregulate the industry by abolishing the Security Industry Authority.
The 350,000 or so individuals who work in the private security sector have to undergo criminality checks and basic training before gaining a licence which costs them £80 per year. So it is those who work in the industry as security guards, in close protection or as door supervisors, or their employers, who pay for the regulation of private security, not the Government. The SIA is completely self-financing and the Government will save nothing by its abolition. You might therefore have thought that before deciding to deregulate the industry, a Government avowedly concerned about transparency and accountability might have consulted the people who actually pay for regulation, or those industry bodies which strongly pressed for it in the 1990s. But not a bit of it-the Cabinet Office decided to press ahead with the abolition of the private security industry regulator with no consultation whatever, totally disregarding the fact that companies working in the industry had invested upwards of £300 million in regulation and in what they call the "SIA brand" and that they reasonably wanted a return on their investment. Even more seriously, those sitting in the Cabinet Office paid no heed to any of the dangers which deregulation would pose to the public.
In the past five years, the Security Industry Authority has worked with the police, local government and other partners to identify 175 companies and nearly 300 individuals with links to organised crime groups. The associated criminality was at the most extreme end of the spectrum of harm to the public-dealing in class A drugs, organised immigration crime, gang violence, domestic terrorism and laundering the proceeds of crime. Since 2004, 47,000 individuals have been removed from working in the industry because they were identified as not fit and proper to do so, and of
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When front-line policing is going to be cut, and when the threat from both domestic and international terrorism is so strong, you would have thought it was hardly the time to announce the deregulation of private security and run the risk of encouraging criminals and untrained people to return to the sector. This runs completely counter to such schemes as the highly successful Projects Griffin and Argos, which bring together private security guards with the police, who use them as their eyes and ears to detect any suspicious goings on in the streets and in the buildings where they work, schemes which have been widely adopted both in the UK and further afield. These schemes rest on the foundation that those who work in private security have been properly vetted and have received basic training, a situation which the proposed deregulation of the industry is about to put in jeopardy.
It was in Scotland in October that the news first leaked out that the Government were intending to abolish the regulatory body for private security. The Scottish Government were appalled; the chief constable of Strathclyde condemned the proposal as a "disaster". Licensing started in Scotland in 2007, and since then Strathclyde and other forces in Scotland have worked closely with the SIA to disrupt crime gangs by attacking their legitimate fronts, such as security businesses. Without a doubt, regulation was making a significant contribution to tackling serious and organised crime, particularly in the Glasgow area, and there was no way that the Scottish Government would agree to drop it. In fact quite the contrary: Scottish Justice Minister Kenny MacAskill made it clear he wanted more regulation, covering more sectors; and following a visit he made to Northern Ireland, the Northern Ireland Administration gave strong backing to this view, making it clear that regulation had worked extremely effectively there in the year since it was introduced and that, like the Scots, they would insist on retaining it under their devolved powers.
I was very surprised to hear the Minister say earlier that there had been no differences of view between the Government and Scotland on this Bill. I would like to ask him perhaps to reconsider the accuracy of what he said earlier and to make it clear to the House in his summing-up that very strong divisions of opinion exist between the Government in London, the Scottish Administration and the Northern Ireland Administration in relation to the SIA and its role.
It was indeed the Glasgow Herald which pointed up the total inconsistency in what was happening. It said that not only was the effectiveness of the SIA being measured by its ability to curtail and disrupt criminal activity, but that licensing had inculcated a new culture among stewards on licensed premises, whose training in reducing aggression and violence had contributed to crime reduction in city centres. It then observed that
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Perhaps the Minister could answer a question that I have been asking for some time: where is the consistency in this Bill? Why is the regulator for private security singled out for abolition, but not other regulators such as the Gangmasters Licensing Authority or the Gambling Commission? Did all government departments answer the three questions differently? What is the common factor which binds together all the bodies in Schedule 1? To me, they appear like a completely random collection, almost as if they had been drawn out by lottery balls on a Wednesday evening.
The leak in the Daily Telegraph, while it completely demoralised staff working in all the listed organisations, did at least give the leading associations and individuals in the private security industry the opportunity to start organising and telling the Government what they thought. The British Security Industry Association, the International Professional Security Association, the Security Institute and the UK chapter of ASIS International, plus all the leading industry online sites and publications, expressed their opposition to deregulation loudly and unequivocally. A new industry umbrella organisation, the Security Alliance, took shape and resolved that regulation should stay for the protection of the public and to continue to drive up standards in the industry; that compliance and enforcement of licensing was very important, and could be undermined by what the Government were proposing to do; and that those working in the industry should be allowed to continue working with the regulator, as they had since the summer, to work out ways of moving to smarter, lighter-touch regulation.
The irony of all this is that had the Cabinet Office done any research at all, it would have learnt that the private security industry and its regulator had agreed on a blueprint for the next few years to move to greater industry involvement in the regulatory regime, particularly for companies achieving high standards in annual independent inspections, so that regulation could focus more strongly on the not so good, not so highly performing companies. The Home Office had already been approached to introduce business licensing alongside the licensing of individuals to make it easier to set minimum standards which could then be progressively raised, and to ensure compliance. Eventually, even Ministers in the Cabinet Office, I am happy to say, heard the message and heeded it. They agreed that, while the SIA should no longer be a non-departmental public body, there should be a phased transition to a new regulatory regime. This was endorsed last week in a letter to me from the Home Secretary, and I am happy to accede to her wish to ensure that,
- "any transition to a new regulatory regime is phased in smoothly and takes into account the needs of the industry as well as the priorities of the Government including the devolved Administrations",
However, I am aware that none of that is in the Bill. Can the Minister explain to me, please, and to all
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One or two issues still worry those working in the industry, and major buyers of private security, such as Tesco, the big City banks and companies with big sites to protect, do not want the transition period to be rushed. They want to ensure that any new regime, even if it includes self-regulation, builds firmly on the existing one, is not a poor substitute for it and, in particular, continues to have government-backed enforcement powers. The Scottish Government, who are already planning for the Commonwealth Games in 2014, will undoubtedly be in strong agreement with these concerns, as will Northern Ireland.
So the regulator will try its best to set out a timetable and to construct a transition to a new regime which satisfies the Government on the one hand and the industry, buyers, Scotland and Northern Ireland on the other. It will not be easy, and our task has been made inordinately more difficult by the way the Cabinet Office has operated in the past few weeks, with a total lack of transparency, consistency, logic or evidence-based policy-making. We will go ahead and try to make the best of what is happening, and all our partners are very supportive, but it hardly inspires confidence in the Government's avowed mission to eradicate waste and inefficiency or to apply with any consistency the objectives listed in Clause 8(1). The Bill is hugely contentious, and I hope I have shown some of its shortcomings in the detailed analysis that I have just put forward. It needs to be considered extremely carefully before we proceed any further, which is why I shall certainly be supporting my noble friend's amendment later this evening.
7.50 pm
Lord Crickhowell: My Lords, the noble Baroness has given us a preview of the speech that she will no doubt make again in Committee. The problem that I have had to confront is that, while I completely agree with the aims of the Government in preparing this much-needed legislation, I am a member of the Constitution Committee, which produced the report that was laid before the House on 4 November. Bearing in mind the importance of that report, I suppose that it is as a punishment that the two members of the committee who have put down their names to speak tonight have been placed at 32 and 41 on the speakers list. That may have been a mistake, as Ministers knew that I for one would be bringing forward proposals, which they said that they would welcome, designed to address the very criticisms of the Bill contained in our report and which the House might have found helpful to be informed about early in the debate rather than during the dinner hour.
The Whips understandably believe that the members of a party or parties that form a Government have a duty to support them, but we have other duties as well. In this case, they are to ensure that constitutional conventions are not abused, to defend the right of Parliament to scrutinise and, if necessary, to amend the legislation brought before it and to see that the ability of this House to carry out its most important job-the proper scrutiny of legislation-is not undermined.
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In the impact assessment that they have published, Ministers tell us that they considered proceeding by means of separate pieces of legislation but decided that that would have made it difficult to deliver the Government's policy intention and would have been,
It is not at all surprising that Ministers decided to bring forward a single Bill so that they could,
The drawbacks to that approach have been clearly identified by the Constitution Committee. With 910 public bodies in the scope of the review and 481 selected for some kind of change, I think that the Government, the House and, especially, Members on these Benches should try to work together to find ways of solving the very real problem that exists without wrecking the Bill, the aims of which are very widely supported.
At a meeting last week with Ministers and the Bill team, I was concerned by their repeated references to what they described as safeguards. The trouble is that the affirmative resolution procedure is not a safeguard, for the reasons so eloquently described by my noble and learned friend Lord Mayhew of Twysden and others, and other so-called safeguards are equally insubstantial. The words,
and "if the Minister considers"-I quote from Clause 8 -do not provide any kind of reassurance.
So how do we resolve the difficulty? I have made a number of suggestions to Ministers, and my right honourable friend Francis Maude, the Cabinet Secretary, seemed sympathetic to all of them. First, there are several bodies listed in Schedule 5, such as the Human Fertilisation and Embryology Authority and the Human Tissue Authority, on which the Government are awaiting reports and have not yet decided how to proceed. The reform of some of those bodies raises sensitive issues. I believe that the Government would be well advised to take them out of this Bill and, when they have decided how to proceed, to produce separate Bills or include them in other legislation that the departments are almost certain to bring forward.
Secondly, there are some bodies included in the Bill with quasi-judicial or judicial functions where the changes raise legal and human rights issues, which were eloquently referred to by the noble and learned Lord, Lord Woolf, and by my noble friend Lord Lester of Herne Hill. I think that Ministers would be very wise not just to consider carefully and accept what the noble and learned Lord and the noble Lord said but to accept the recommendations that they made.
Thirdly-and this proposal does not by any means apply in every case or even in a very large number of cases-I say to my noble friend Lord Taylor of Holbeach that if he wants his Bill, as I do, he would be very wise to offer the super-affirmative resolution procedure used in the Legislative and Regulatory Reform Act 2006, which requires Ministers to take into account any representations, any resolution of either House and any recommendations of a parliamentary committee in respect of a draft order, laid for 60 days, particularly where, perhaps quite recently, there has been lengthy
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Fourthly, a large number of public bodies, as we have heard, are included in Schedule 7. A Minister may by order transfer any of these bodies to one of the other schedules so that they may be abolished, merged or have their constitutional or financial arrangements modified. I realise that Ministers intend to hold regular reviews and that from time to time it will be clear that a public body has fulfilled its functions and is no longer required, but it is important, as a number of noble Lords have pointed out, that all public bodies that continue to function can do so with confidence and can use their independent judgment in carrying out their duties and in giving their advice to Ministers. If a public body faces the prospect that, by means of one order debated for an hour and a half, it can be transferred to a different schedule and by a second order merged or abolished, its confidence and its independence are likely to be undermined.
Many bodies on that list are important: the Environment Agency, the Health and Safety Executive, the Chief Inspector of Prisons, national park authorities, Ofcom and the OFT are there, just to pick a handful almost at random. Surely, at the very least, before moving a body from Schedule 7 Ministers should have to publish a paper explaining their intentions and allow an adequate period for consultation before any order is prepared. In some of these cases, Parliament may feel that the super-affirmative resolution procedure should be used. Some bodies, as the noble and learned Lord, Lord Woolf, has suggested, should be removed from the schedule entirely-some might argue that it should not be just a few.
The opposition amendment asks us to refer the Bill to a Select Committee. It does not require an instruction from the House for the Constitution Committee to consider the Bill. We have already done so. We stated that we will closely monitor the progress of the Bill and may report again to the House. What we could not do is carry out a detailed examination case by case of the large number of bodies covered by the Bill.
To send the Bill to a committee to carry out a full pre-legislative scrutiny would be to disguise an attempt to throw out the Bill at Second Reading without breaching the convention that this House does not reject Bills at Second Reading. I have served on two pre-legislative scrutiny committees. They are suitable mechanisms for dealing with Bills covering a limited number of changes in law, practice or principle. In this case, if the committee was drawn into scrutinising 481 separate cases, it is clear that it would be swamped by the weight of evidence, written and oral, and the Bill would effectively be killed.
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For the Opposition seriously to obstruct, let alone kill, this Bill would be very odd politics. Mr Byrne, the shadow Cabinet Office Minister, has argued that the Government are carrying out the work of their Labour predecessor, in that two-thirds of the 192 bodies that are to be closed are those that he announced in March, that the tests proposed largely confirmed his approach and that he welcomes the principles of a sunset clause for quangos and triennial reviews.
My noble friend Lord Maclennan of Rogart offers a more tempting option, but I am extremely doubtful that even with a limited brief a committee could complete a useful job by the end of February that could not be better done by the House. I much prefer the proposal of my noble friend Lord Lester of Herne Hill. I hope, like him, that the Minister will, in the wind-up, give a clear undertaking that the Government will, at the start of the Committee stage, bring forward amendments to improve the process-it is on the process that most of the criticisms have concentrated-and include the adequate safeguards that have been suggested by noble Lords who have immense knowledge and experience in their own fields. I think that that is what the whole House demands.
My noble friend Lord Lester of Herne Hill referred to a comment made by the late Roy Jenkins about not digging trenches. I served for many years on the legislation committee under Lord Whitelaw. I have to say that I do not think that this Bill would have had a cat's chance in hell of proceeding if Lord Whitelaw had been around. He would at this stage have made some pretty rough remarks to my noble friend on the Front Bench about not digging holes unless you can get out of them. I suggest to my noble friend that he quickly gets out of the mud before it becomes too deep. If he can do so, and if he can give us some reasonable undertakings-his right honourable friend Francis Maude has told me that he is sympathetic to much of what I have been saying-I will have no hesitation in voting for the Bill and against both amendments.
8.05 pm
Baroness Pitkeathley: My Lords, I make it clear that, although I have been a member of and have chaired a considerable number of public bodies in my time, I am speaking without prejudice in this debate. Perhaps I may offer in evidence the fact that I currently chair two public bodies, neither of which is the subject of this Bill. One is to be wound up in March 2011, while the other is to be renamed, reformed, funded differently and given extended powers.
My role as chair in both cases is the same. I will work in a professional, consultative and considered way to deliver the outcome that the Government are aiming for as effectively and efficiently as I can-in one case, to wind the organisation up and, in the other, to deliver what will in essence be a new organisation. I hope that this illustrates that I am not in any way opposed in principle to the reform of public bodies. As further evidence, in my time I have participated in the merger of two public bodies and have closed another down. It is entirely right that review and reform should happen on a regular basis and for rational reasons.
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As the Institute for Government reminds us in its report, Governments must seek to achieve a clear and sensible division between arm's-length bodies, their sponsor departments and the public. However, I remain to be convinced that there are any rational reasons for some of the proposals in this Bill. There is no vision, no narrative and very little logic to suggest that this Bill represents forward movement or planned progression. On the contrary, the phrase that most readily springs to mind as I contemplate it is, "The urgent drives out the important".
There is a desire to be seen leading the cull of quangos, which is promised by most incoming Governments, to simplify what by its very nature is the messy middle, as the Institute for Government terms it, between Whitehall and citizens. Also, of course, there is an urgency at this time to cut costs, if that was the aim, although we have heard from several noble Lords that this simply will not be achieved. For me, two important factors, which I thought were central to the coalition Government's agenda and to how they intended to proceed, have been driven out by this rush to be seen to be culling public bodies.
The first is localisation. Is it not essential to the concept of the big society that power should be decentralised and devolved to the most local level possible and be free of political interference? How does that accord with taking so much power back into Whitehall through the abolition of arm's-length bodies and with taking so much power back into government itself? Quangos were almost always set up with the aim of being clear about divisions of responsibility and making clear to voters where accountability lay.
The other principle that seems to have been abandoned is that of ensuring that the voice of the consumer, the user or the patient is strong in the development and implementation of government policy. I quote from the Cabinet Office paper, Building a Stronger Civil Society. One of the core components of the big society agenda is said to be,
Almost all quangos in the list have lay representation on their boards-indeed, many have lay majorities-and were set up precisely to provide that strong consumer voice to which the Government say that they are committed. The lay representation provides not only a counter to professional interests but also strong grass-roots opinions about how policies work for those who are subject to them, as opposed to how a policy wonk in Whitehall or a parliamentary draftsman might expect them to work. Moreover, when people in charge of institutions and departments of state change so frequently, the lay representatives are often the longest-serving members of any body and provide the institutional memory. That memory is important, because those who do not observe history are doomed to repeat it.
I hope that the Minister will be explicit in his reply about how my two concerns are to be addressed: first, the commitment to localism versus the centralisation of power implicit in the Bill; and, secondly, the Government's commitment to the consumer versus the threat to lay representation.
Like other noble Lords, I have two more serious concerns-the manner of introducing this legislation and the nature of the legislation itself. Even if the
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I must also mention, as others have, the draconian nature of parts of the Bill. It is no less than abuse of power and I know that noble Lords on all sides of the House will do their utmost to amend its more outrageous parts as the Bill passes through your Lordships' House.
8.12 pm
Lord Elystan-Morgan: My Lords, I appreciate that I am the 34th speaker and that much of what I might have said in relation to the issues has been said with great force and eloquence by other speakers, so I shall confine myself to a few matters in relation to the generality of the Bill.
The starting point, of course, is the condemnation at the highest possible level that has been levelled at the Bill by the Select Committee. It is not a slap on the wrist; it is not a case of saying, "We doubt whether your judgment is correct in this matter". The Select Committee is saying-although not using this exact term-that the Henry VIII clause, which is used as the heart, core and kernel of the Bill, is a monster. One therefore asks whether you can redeem a monster. Can you so curb the functions of a monster that it would be safe for Parliament to proceed?
The Select Committee put it in this way:
"When assessing a proposal in a Bill that fresh Henry VIII powers be conferred, we have argued that the issues are 'whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards'".
It is saying that, when you are dealing with 481 out of more than 900 quangos, you are doing something that is antithetical to the very purpose of legislation. It is as fundamental as that and I do not think that I am doing an injustice to the Select Committee in saying so. I therefore again ask the question: is it redeemable?
Every speaker in the debate so far has assumed, in one way or another, that it is either redeemable in Committee or on Report, if it proceeds in the ordinary way, or redeemable having gone through the procedure of a Select Committee and returning to the House in about five or six months' time. However, I ask the fundamental question: if the Select Committee is correct, and it seems to me that it is-it is a body of the highest possible distinction, with great experience, great understanding and great wisdom-how can this Bill
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Only the noble Baroness, Lady Scott of Needham Market, has referred to the question of how many bodies will be contained in each order that is made. The Select Committee put it in this way:
"Furthermore, the Bill as drafted appears to allow for the rolling up in a single ministerial order of changes to a number of diverse public bodies. Such bodies may even operate in unrelated policy domains. We are concerned that 'omnibus orders', covering a disparate range of institutions, pose yet more difficulties in terms of effective parliamentary scrutiny".
Will the Minister who is to reply give an unreserved undertaking that it will be only one order for one body? That question can be dealt with by a monosyllabic answer in one way or another. It is of the utmost importance. As every Member of the House will know, moving orders en bloc can be done only with the unanimous consent of the House. This is not, of course, a matter that would transgress paragraph 10.13 of the Companion, but it would transgress the principle that you deal with one issue in one order. If you have an order that deals, for example, with 10 bodies, you are dealing with 10 issues. Therefore, such an undertaking is crucial.
There is also the question raised by the noble and learned Lord, Lord Woolf, of the inclusion of a number of bodies-I would have regarded them not as quangos at all but as independent judicial bodies-that have an invaluable and utterly priceless part to play in the administration of justice. The idea that they should have been included in the legion of the damned, as Kipling might have called those bodies listed in Schedule 7, is horrifying. It shows total insensitivity on the part of the Government that they should even consider that the independence of these bodies, which is so central to the very concept of the administration of justice, should ever be questioned.
I turn now to the specific matter of the inclusion of Sianel Pedwar Cymru-S4C, the Welsh language channel-in Schedules 4 and 7. It is my contention that this body is wholly unique. It is unique because it was set up with a commission. That commission was that it should do everything within its power-indeed, its existence is based on this-to preserve the life and future of the Welsh language. It is unique also in relation to the scene that existed 28 years ago when it was set up, when there had for many years in Wales been a long, bitter campaign of civil disobedience and lawlessness against those opposed to a Welsh channel. William Whitelaw, a man of immense understanding, diplomacy and integrity, ultimately came to a compact with the Welsh people and said, "You will have your channel". A legislative framework was set up that guaranteed funds for the channel that would be adequate for it to carry out its commission. Indeed, its independence was guaranteed by statute.
The viability of that channel is now challenged and jeopardised by the fact that that financial guarantee disappears. The independence is jeopardised by the fact that it is contemplated that it should be merged with the BBC as a very junior, meagre partner. Its
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I do not believe that I overstate for a moment the anxieties that are felt in Wales concerning that loss of independence. Indeed, if one looks at the statements made in the last few days by Channel 4 as to its grave anxiety with regard to its own independence, one can well understand why the Welsh body is so afeared of what might happen in this situation. The continued viability and independence of S4C is crucial to the very existence of the Welsh language. The Welsh language is spoken by some 580,000 persons, including three or four of us in this House. It is one of the oldest living languages in Europe-it stems back to its Indo-European origins about 1,500 years ago. It was a living language 1,000 years ago, when French was only a patois of Latin. In those circumstances, I ask the House to consider that it is part of its trust in relation to the Welsh language to regard the situation of S4C as being wholly unique. Parliament has the sovereignty to amend all the legislative structures but, in so doing, it would be reneging on the solemn compact that was made between a very honourable gentleman and the people of Wales 28 years ago.
8.22 pm
Lord Judd: My Lords, if there were no other reason for the Government to think again, the observations of the Select Committee on the Constitution and the observation of the noble and learned Lord, Lord Woolf, in our deliberations today are reason enough. Henry VIII clauses do not make good democracy and the independence of the judiciary is the cornerstone of our system of law and justice.
Of course we need to keep the number of quangos and public bodies and their effectiveness, cost-effectiveness and purpose under review. If they are no longer relevant, if they have fulfilled their purpose, they should be wound up. However, there are real and widespread concerns at the sweeping, precipitate and ill-considered nature of the Government's proposals. For a Government committed to empowering the people, there has been a quite extraordinary lack of consultation.
There are puzzling contradictions in the Government's overall position. The Government keep emphasising that they want to improve the quality of democracy and to reduce the size of what they like to call the state. They say that they want to bring power and decision-making closer to the people. How such concentration of wide-ranging powers in the hands of Ministers will help to achieve those objectives is to me-and, I think, to most people-a total mystery.
Another disturbing contradiction is how, if it is to be argued that Ministers and the Government will be made more democratically accountable to Parliament, that can be reconciled with the proposals that will come before the House next week that seek to reduce the number of MPs and introduce what, in many cases, will be larger, less-community-based constituencies, in which MPs will inevitably become less accessible. In many ways, MPs are already overloaded. How will those new sinister proposals help them better to fulfil their responsibilities of scrutiny and holding the Executive to account?
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I tremble at the danger that years of experience and dedicated service that have provided profoundly significant contributions to the quality of our society, ranging from our system of law to our heritage and environment, will be all too rapidly trashed and thrown away as centralised bureaucracy or crude profit making take over. The Forestry Commission provides an outstanding example of such service. At this point, I unreservedly pay a warm tribute to my noble friend Lord Clark of Windermere for the outstanding contribution that he made as chairman of the Forestry Commission. Those of us who know him as a friend in the county of Cumbria appreciate that few people understand the countryside better than he does.
The Forestry Commission has learnt from 90 years of experience and has become a model example, with highly motivated staff at all levels. The commission is dedicated to the nation's needs-not least to combating climate change-to biodiversity and to the quality of our scenic heritage as well as to the spiritual uplift and public enjoyment that forests can provide for the nation. The commission's imaginative work on public accessibility to woodland and to adventurous experiences has been outstanding. Why put a question mark over all that? Have the Government looked at what has happened in New Zealand, Papua New Guinea, Indonesia, Nepal or indeed-closer to home-Sweden?
I have the honour to be president of the Friends of the Lake District and vice-president of the Campaign for National Parks, and I know that the Bill has considerable implications for the national parks. If I dwell for a moment on the national parks, I do so because the concerns that arise in that context have direct relevance to many other bodies that are covered by the Bill. It has been suggested that the national park authorities have been included in the Bill as a precaution, in case the imminent review of national park authority governance results in proposed changes that might require a revision of existing legislation. However, if that is true, it is surely a highly questionable way of developing legislation to include powers that may not be necessary or appropriate and that have not been subject to consultation with the affected bodies.
Clause 3 will give the Minister the power to make provision by order to
which includes national park authorities and the Broads Authority. The term "constitutional arrangements" refers to a wide range of arrangements relating to the structure, governance and functions of such bodies. The provision appears to allow Ministers the power to change many aspects of the national park authorities' work, including their name, their accountability to Ministers, their powers to employ staff, the number of their members, the procedures for members' appointments and the appointment of a chair. For example, rather than being elected by the national park authority members, the chair could be required to undergo a pre-appointment hearing before taking up the post.
Clause 5 will give the Minister the power to make provision by order to,
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which includes the national park authorities and the Broads Authority. The clause will also give the Minister the power to,
An "eligible person" is defined as,
- "a Minister, ... any other person exercising public functions, ... a company limited by guarantee, ... a community interest company, or ... a body of trustees".
National park authority functions include preparing and publishing a national park management plan. In their role as local planning authorities, national park authorities determine planning applications and prepare a suite of planning policies to cover each park. So this clause would appear to allow Ministers to transfer the national park authority's planning function to a third party, including the Ministers themselves.
Clause 6 gives a Minister the power to make provision by order to authorise the national park authority or Broads Authority to dedicate some or all of its functions to an eligible person. These are the only bodies listed in Schedule 6; while not explicitly relating to an authority's planning function, it is hard to imagine what else this could be about. National park authorities may choose to enter into agency agreements with other authorities on the delivery of their development control function. This ensures that the authority remains ultimately responsible for the delivery of the function and is able to monitor and when necessary amend arrangements so that they do not prejudice the delivery of park purposes. Full delegation would arguably not give the same ability meaningfully to monitor arrangements, as it would delegate responsibility for them to another body.
Clause 7 provides that an order under the above clauses may include consequential or supplementary provisions-for example, the funding arrangements of the transferring authority. Presumably that would mean that when a national park authority transferred some of its functions to an eligible person, the appropriate funding would be transferred along with it.
It is frankly unconvincing that national park authorities and the Broads Authority have been included in the Bill and that Ministers are apparently seeking to give themselves power to exercise control over almost every aspect of national park authority operation and governance. As I have said, that seems to conflict with the rationale being deployed elsewhere in government to devolve as much decision-making as possible down to the local level and not to constrain local flexibility and choice. It seems inevitable that increasing the scope of government involvement and scrutiny to the level proposed would undermine the national park authorities' independence. That appears in stark contrast to the position that the Conservative Government, to their credit, took when the Environment Bill passed through Parliament in the 1990s, when they demonstrated a strong commitment to establish independent authorities for the national parks.
The current model of national park authorities originates from an independent review in 1991, the Edwards review, whose priority was to establish bodies that could effectively tackle the challenges that face the parks, meeting the nation's aspirations for them while being accountable and sensitive to the legitimate
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Altogether, this is not a reassuring future for those charged with protecting and enhancing one of the most precious assets of our civilised UK. My noble friend is right to insist on his amendment. Much of what I have said about the parks applies very directly to other parties.
8.34 pm
Lord Morris of Aberavon: My Lords, Parliament has always been rightly jealous of granting Henry VIII's powers to Ministers and, where sought, it has ensured that there are safeguards. The Legislative and Regulatory Reform Bill was considerably amended in 2006 to ensure such safeguards and I support the suggestion, made time after time, that the Government should seriously consider the super-affirmative resolution procedure and the consultative proceedings therein enshrined.
The Select Committee on the Constitution-on which I used to serve-has, in a very short time, produced trenchant criticisms of the whole architecture of the Bill. Its conclusions are couched in some of the strongest terms that I have read. This House owes the committee a great deal for its industry. It seems to me that the desire of the Government to reform, in all, 481 bodies and their rationale of which bodies are in or out is not always easy to follow. The Government have thrown the whole kitchen sink at the bodies mentioned in the schedules, steamrollering through parliamentary processes without adequate consultation and expedited consideration. My noble friend Lord Richard spelled out the extraordinary speed that taking the considerations must have had.
It occurs to me that this is a reversal of the,
- "openness and transparency in public services that this Government seek to achieve".-[Official Report, Commons, 14/10/10; col. 27WS.].
That was the rationale of Mr Francis Maude, the Minister responsible in the House of Commons. The Select Committee refers to the Government,
- "pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation".
Since we are governed in the main by conventions, there is nothing illegal in what the Government are doing. Yet is it proper or right to do it in this way? Many of these public bodies are set up by statute or by royal charter-I have set up quite a few myself-but all after prolonged parliamentary debate in both Houses.
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My criticisms apply to the procedures proposed by the Government and are not diminished in any way because of any sympathy that I may have for the need to reform the quango system and for making decision-making more accountable to Ministers and Parliament. Quangos have their purpose. They can operate freed of the more bureaucratic processes of the Civil Service, but once they have achieved their objectives there is a need to scrutinise their effectiveness and, on occasion, their very existence. I do not oppose in general the Government's objective on this point. The danger of quangos is that, once set up, they have an organic life of their own. Some become oversalaried and overmanned.
We will hear a lot of special pleading in these debates. I doubt if I will take part in them, but I listened with great care to the powerful speech dealing with the judicial or quasi-judicial bodies-those dealing with the judicial system-by the noble and learned Lord, Lord Woolf. I would certainly be tempted to support him on those occasions. If I may be so bold as to advise the Minister, I suggest that, before we start the Committee stage, some of those bodies that the noble and learned Lord mentioned should be taken out of the Bill. That will make the proceedings much easier for the Government. His was a powerful speech and one that we should listen to. What is wanted, and here I am encouraged by some of the Government's thoughts, is a proper and considered root-and-branch appraisal of each quango and its functions, particularly how much control there is by central government over its staffing and what appraisal there is by the Government of the salaries of its officers.
How have things got so out of hand with the salaries now paid to the heads of quangos? The Prime Minister is probably paid at much too low a level, but it is a useful yardstick for what is an appropriate payment for others in the public service. Where there is a proposal to pay more, and there is sometimes a case for that, there should be a clear justification for that kind of salary in the public sector. Where have the words "with the consent of the Treasury" gone in legislation? Who now controls the level of the remuneration?
It was quite a shock to me, after only a few months as Attorney-General, to be asked for my views as to whether a very senior government lawyer should be paid a bonus. He was indeed a good man, but by what standards was I to judge his suitability for a bonus? In fact, I had never heard of the word "bonus" for the Civil Service before. Salaries for those in public work should be at the right rate for the job and there should be no question of a bonus.
I have a particular point regarding the published proposals to cut Ofcom's manpower by 25 per cent. I hope that the need for the proposed manning has been properly assessed, along with its effectiveness, in the time that it takes to deal with complaints and indeed the importance of its remit. During the Recess, I was concerned about a press report on the expenses claimed
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Should a regulatory body either offer or receive significant hospitality? When I used to sit as a Crown Court recorder, I would be very wary of accepting any hospitality in any shape or form. It would have been unsuitable and inappropriate-even more so when I was Welsh Secretary for six years, exercising important planning powers. I would certainly run a mile from accepting any significant hospitality, and I would hope that my Permanent Secretary would have protected me from such a mistake. Is there any reason why a regulatory body should be either receiving or paying out for hospitality?
There are a number of clauses referring to the National Assembly for Wales. In the absence of a proper briefing, the idea of enabling legislation bringing together the functions of the Countryside Commission, the Environment Agency and Forestry Commission Wales appears very appealing, since agriculture is already a devolved matter. My specific question for the Minister is: am I right in presuming that these proposals are at the request of the Welsh Assembly? In a recent comment in the Assembly on 12 October, the First Minister stated that he was not consulted on some of the proposals in the Bill affecting Wales. Was he consulted on the section dealing with the powers of Welsh Ministers? These are important matters for the Assembly. In the time available, all I need say about the powerful speech by my noble friend Lord Elystan-Morgan is that I support every word that he has said.
These examples of the lack of consultation and the hurry in the preparation of the Bill may well be significant and may apply more generally for many more organisations that are affected by the Bill. I therefore support my noble friend's amendment.
8.45 pm
Lord Roberts of Conwy: My Lords, I found myself on the horns of a dilemma as I read the Bill, and that was before I read the Constitution Committee's report. Much as I wish for a diminution of the state's role and approve of the wholesome objectives, spelt out in Clause 8, of,
the means by which they are to be achieved are not easily justified, even by the noble ends in view. That point has been made by several noble Lords in the course of our debate this evening.
Among the options that the Government considered, according to the impact assessment document referred to by my noble friend Lord Crickhowell was,
- "not bringing forward a Bill and making the necessary statutory changes to the bodies in separate pieces of legislation".
Although the approach represented there was obviously the proper way to proceed, the impact assessment states:
"It was decided that this would make it difficult to deliver the Government's policy intentions and be an unnecessary burden on
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Clearly time was of the essence for the Government, rather than parliamentary propriety. Indeed, the Government decided to bring forward a single Bill to enable the changes to be made through the less time-consuming process of secondary legislation-mainly, it seems, in the form of orders subject to affirmative procedure. Certainly, secondary legislation has all the advantages, in terms of speed, that the Government claim for it, but orders cannot be amended in either House, are subject to time-limited debates and it is not our practice, in this House, to vote on them. There are severe parliamentary drawbacks to this procedure.
Nevertheless, it is proposed that public bodies that have, for the most part, been established in the past by well considered statutes be abolished, merged or modified in their internal constitutional or funding arrangements by the speedy processes of secondary legislation. If only some allowance was made for the possibility of primary legislation being required for certain important changes involving lengthy, complex orders and difficult issues, this might have softened the Government's approach and won some more friends for the Bill. However, it seems to be ruled out. I ask my noble friend on the Front Bench for an assurance when he winds up that I am wrong about this and it is still possible for primary, rather than secondary, legislation to be used in this context. I still commend the thought of an amendment to allow primary legislation and I hope this will find favour with the Minister.
When one looks at individual bodies that one is familiar with, in my case there is the Welsh-language channel, S4C. I appreciate much of what the noble Lord, Lord Elystan-Morgan, said. I remind the House that my noble friend Lord Crickhowell played a prominent part in the establishment of S4C so many years ago. It is quite properly listed in Schedule 4 as a body subject to funding changes. Under the Broadcasting Act 1996, S4C's annual budget increase is linked to the retail prices index, and that link is to be severed. It has also been announced that S4C is to be part funded from the TV and radio licence fee from 2013. We tend to regard that as the BBC licence fee but that is technically incorrect.
The Welsh channel authority is also included in Schedule 7 as a body that may be shifted to another schedule, possibly relating to a change in its constitution. Again, the essence of that change, and what it is hoped to achieve, has been spelt out by the Secretary of State for Culture, Media and Sport. Of course, at the end of the day such changes as are made will be by secondary legislation, with all its parliamentary limitations, to a body established and developed by primary legislation over some years and after a great deal of discussion. Such extensive discussion may again be necessary, judging by the ferment in Wales at present, but that would be possible only with primary legislation.
It has been suggested by a number of noble friends that some orders might be subject to the super-affirmative resolution procedure, but having read the relevant paragraphs in the Companion totheStanding Orders andtheConstitution Committee'scomments, and having
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A wise man once told me that in considering legislation one should always think what the Opposition might do if they inherited the powers sought in the legislation. It occurred to me that, at their worst, some future set of noble Lords on the Front Bench opposite might include your Lordships' House in Schedule 7 as a possible candidate for modification, if not abolition. However, that is a very extreme scenario which would, I hope, be thwarted by wiser noble heads on the Back Benches.
Nevertheless, the precedent established here of a massive subjection of public bodies, largely established by primary legislation, to possible change by secondary legislation is not a happy one. I hope that some amendments can be passed in Committee on the Floor of the House to tie the possible changes to public bodies even more firmly and exclusively to the excellent objectives set out in Clause 8 and the principles and values that we cherish.
8.53 pm
Lord Soley: I am a member of the Delegated Powers and Regulatory Reform Committee, which will meet tomorrow to consider the Bill. However, I wish to make it clear that I am speaking for myself tonight. I think the Minister will have already realised that the structure of the Bill is not wildly popular on either side of the House, and that he may have some difficulty with it. Yet it is odd that there is widespread agreement on the need to reform and review from time to time the functions of quangos. That widespread agreement applies in this House and in the House of Commons. We know that we need quangos, but we also know that from time to time we need to review them and sometimes wind them up. Indeed, the previous Labour Government had a very impressive record on winding up quangos. This Government will be hard put to live up to that record, despite this overwhelming attempt to do so.
I do not wish to repeat all the arguments that many noble Lords have made so well, but it is clearly wrong to use powers of this nature. The first six clauses start with the words,
When you see those little words grouped together in an Act of Parliament, you need to say, "And what comes next?". All six clauses spell out Minister's powers to wind up, change, change the constitution, and change the staff and personnel of the many quangos listed in the Bill. As has been pointed out ably, including in the previous speech, he can do that despite the fact that these bodies were set up by primary legislation.
That brings us to the deadly issue of the Henry VIII powers, which we look at from time to time on the Delegated Legislation and Regulatory Reform Committee. If you have Henry VIII powers-and I am one of those who take the view that in recent times we have probably used them more than we should-we need to look at them very carefully. The Bill takes the situation
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