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There are of course other functions in HFEA which are important, particularly the control of IVF. When the body was originally set up, the practice of IVF was exceptional and a complete novelty, but a lot of water has gone under the bridge since then and it has become much more of a standard clinical procedure. It is true that developments have taken place there, but they have taken place also in other branches of medicine. It is not only embryology or IVF that have moved forward; fortunately, a great number of developments have taken place in the practice and application of medicine and surgery. It strikes me as extremely logical to have a body that would have overall responsibility for that.
If that be right, there is a good deal to be said for the view that the time has come to review the position in regard to the two health bodies that we are discussing and see whether a more integrated approach to research on the one hand and clinical practice on the other could be furthered by having bodies responsible for the whole of the first and the whole of the second. I agree that a good deal of detail needs to be filled in, but I remind myself that we are not deciding today whether this should happen. We are talking about a power for a Minister to decide what to do in the light
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Lord Winston: My Lords, my noble friend Lord Warner has declared support for the Minister sitting on the Front Bench; I suspect that I might in the next few minutes give him even greater support.
We have to understand that research in these areas has now gone way beyond embryology. There was a time when people were very concerned about the status of the embryo, when embryo research was relatively novel. I should like to correct a remark made by the noble Lord, Lord Walton, who very kindly referred to work on pre-implantation diagnosis. That work produced pregnancies before the establishment of the Human Fertilisation and Embryology Authority, and people like me were greatly exercised to establish regulation. In spite of what has been said in this Chamber, we were very much in favour of regulation. Since there was no government regulation, we started a voluntary licensing authority which became a model in time-obviously, a very imperfect model-for the body set up under the splendid Bill introduced by the noble and learned Lord, Lord Mackay of Clashfern.
Stem cell biology covers every aspect of human disease, from cancer to brain research, from human consciousness to the replacement of organs and transplantation, and a whole range of other areas. It is really-forgive the pun-inconceivable that this could be dealt with by the Human Fertilisation and Embryology Authority properly under its present form or any future form. I would argue that with the advent of epigenetics, the recognition that now the environment in which cells are placed in culture and elsewhere is such a universal issue in medicine there has to be a much more global look at this kind of research. I feel that there is a strong case for suggesting that we have to accept that research ethics are universal and that they tend to have the same sorts of problems, whether it is patient consent, the end or beginning of life, or a whole range of other issues. In fact, the end and beginning of life have some very similar moral issues which need to be debated by ethics committees. The noble and learned Lord was right to point out that trying to look at these issues in a new form would be absolutely apposite. I for one am certainly not in favour of a free-for-all. I am not quite certain who in the medical profession is. I do not think that that is true.
The regulation of clinical treatment has been in many examples woefully inadequate. The noble and learned Baroness, Lady Butler-Sloss, pointed out that while she was sitting on the Bench she had the most terrible case of a woman who had the wrong embryo transferred. That was done, of course, under the auspices of the Human Fertilisation and Embryology Authority. No regulatory authority, no matter how perfect or
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I do not think that there is any evidence from what has happened that the HFEA has done a particularly good job or a particularly bad job. In some areas it has not been very powerful. For example, many things are forbidden under regulation in this country. Patients actively seek fertility tourism in other countries where they can get, for example, donor eggs and perhaps come back pregnant. Very often clinics in this country, although it may be against regulations, refer these patients outside. Of course the HFEA, not unreasonably, is powerless to deal with that sort of problem.
It is also true that the fees charged to patients are often extremely exploitative. I have no doubt that we will come back to this when we come to the pending health Bill, because this is a much bigger issue in terms of how we finance the health service. At the moment, IVF, whether it is done in the private sector or in my view in the National Health Service, is charged on the basis not of what it costs but rather of what the market will bear. That is a very big issue which we will need to discuss, because I suspect that that may apply to a lot of medical practice. It is an issue to which I am sure this House will want to return. Costing the procedure is very important.
Someone mentioned follow-up: one sad thing about the opportunity in 1990 was that we did not-even though we had records of IVF pregnancies, and IVF successes and failures-make any attempt to follow up babies after this procedure for the long term. There have been many reasons why that was difficult, such as data protection. But this lost opportunity means that some of the procedures often in routine use may have unforeseen consequences in children when they are adults. We now know from David Barker's work, for example, that babies who are born underweight and premature are much more likely at the age of 50 or 60, as the Minister knows, to suffer from heart disease, stroke, hypertension and possibly osteoporosis as well as diabetes and one or two other diseases as well. Of course, we may see more diseases which are likely to be epigenetic due to those early influences.
I have to say that, although it is claimed that the HFEA gives out information to patients, six years after I retired from clinical practice running a very large IVF service, I am bombarded daily with e-mails-I have had several today-from patients who want information about IVF and do not feel that they are getting the information they should from the statutory authority. That remains a problem.
The clinical regulation of non-evidence-based practices has been poor. For example, there is no evidence that the preimplantation and genetic screening of embryos designed "to improve pregnancy rate" works. Yet several clinics charge large fees for doing this under regulation even though there is not a base for justifying its use. That also applies to costly immune therapy, which is highly controversial. Again, this is used in women who sometimes fail to get pregnant, under licence from the HFEA. This is an example of how in fact regulation is really quite limited in clinical practice.
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9.45 pm
I am really surprised that nobody in the Chamber has mentioned one important issue that is not easily settled by any form of regulation. I do not know what we do about it. In practice, the biggest problem with in vitro fertilisation is the serious consequences of multiple embryo transfer and the risk of multiple births. The problem is that if you transfer two embryos to the uterus you may in many cases have a twin pregnancy. In a few cases you may even have a triplet pregnancy because, after transfer, one of the embryos may split so you have two identical twins and one single-you have triplets. What we know and is broadly recognised and fully accepted is that any form of multiple birth is a dangerous event in pregnancy. Something like one in 23 multiple-birth babies dies and about one in 12 is handicapped. Premature birth, which is the result of this treatment under those circumstances, is a major cost to the health service. It occupies special baby units and is often a disaster to the families, who were of course insisting on having as many embryos transferred as possible.
The difficulty here is partly ethical. It is interesting that, for the patient herself, those fertilised eggs are her babies and she may, not unreasonably, insist on having two of them back even though she has been advised to have a single-embryo transfer. That problem needs to be thought about. At the moment, as we have dealt with this it has not been well addressed. It is an extremely difficult issue. So I hope that my noble friend Lady Thornton does not push this measure to a Division as I would find it difficult to support the amendment under its present form.
Lord Patel: Briefly, I find myself in support of what was said by the noble and learned Lord, Lord Mackay of Clashfern, and also by my friend in the professional sense, the noble Lord, Lord Winston. I was involved as an officer when the Royal College of Obstetricians and Gynaecologists, together with the Medical Research Council, set up the voluntary licensing authority because it was felt that there was a need to reassure the public that the new science of in vitro fertilisation was not going to lead, as the newspapers then had it, to creating monsters in a Petri dish. Fortunately, two years after that, the noble and learned Lord, Lord Mackay of Clashfern, led the Bill that became the Act that established the Human Fertilisation and Embryology Authority. For the reason already rehearsed, it was necessary to make sure that the public could be reassured. More importantly, it was set up to make sure that clinical practice followed strict rules about what should be good practice and about people engaged in in vitro fertilisation and fertility.
I was not a specialist in in vitro fertilisation, but as an obstetrician I saw the results of the initial practices of multiple pregnancies, to which the noble Lord, Lord Winston, just referred. Every obstetrician in the land was crying out that there should be some kind of advice or regulation from the HFEA that would control the number of embryos that were inserted. The evidence existed that putting more and more embryos in might result in more pregnancies but also in multiple births that resulted in handicapped babies.
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We have two issues here. First was the responsibility of the HFEA in making sure that clinical practices were improved to improve the outcome for both the parents and the babies. Second is the regulation related to research practices, especially in embryo research. I have no doubt whatever that the research regulation aspect of the HFEA needs to be maintained.
I go further in saying that there is a great need to bring some co-ordination in the whole area of the medical research regulatory framework; it is very fragmented. In my previous role as a National Patient Safety Agency chairman, while I was responsible for running the National Research Ethics Service for England and Wales, I found that there were issues relating to ethics for some of the medical research that, because it was fragmented, we had to address, as it was not being addressed by any of the existing regulatory authorities. The report from the Academy of Medical Sciences gives us an opportunity, which I hope the Government will grasp soon, to produce a national medical research regulatory authority that brings in all the regulation that is required. As the noble Lord, Lord Warner, said, the report did not say that it should include the HFEA and the Human Tissue Authority. In his consultation, he also said that they were not addressing the issue of the HFEA and the HTA because they were awaiting the results of the debate that we are now having, and the Bill that we will have relating to National Health Service reform and social care.
I accept that we need a research regulatory authority. Now the issue is whether we need, particularly with the HFEA, to regulate clinical practice related to in vitro fertilisation. If NICE is going to have the new role of setting standards in all areas of clinical practice that will deliver better outcomes, and if we have a regulatory authority-the CQC, which may need to improve its performance and may need resources to be able to do so-we have to ask why we would have a regulation confined to one area, sensitive though it might be. Given the performance of the authority hitherto, we have to ask whether we are going to throw out something so precious; I accept that some of the aspects that the HFEA has been awarded are very precious. I accept that we were the first country in the world to bring about regulation for in vitro fertilisation, which others followed, because it was then necessary. It laid down the template of how clinical practice in a sensitive area such as in vitro fertilisation should be handled. However, as the noble and learned Lord, Lord Mackay of Clashfern, said, we have moved on. I think we might be at a stage where we need a more overarching regulation that promotes good clinical practices and therefore good clinical outcomes.
Baroness Deech: My Lords, on a factual point, may I correct the impression-it may have been a mistake- that the previous speakers have given that any number of embryos can be implanted in a patient? The HFEA brought down the number of embryos from three to two and is working towards one. That was in the face of relentless resistance from patients, who wanted the best chance of becoming pregnant, and indeed many-but not all-of the clinicians and embryologists, who said, "We know what's best for our patients". The impression
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Lord Winston: Forgive me for correcting that impression. Many units limited the number of embryos well before the HFEA did. At Hammersmith Hospital, we limited the number of embryos two years before the HFEA did. We were not alone; a number of units did that because we were very concerned. The idea that medical practitioners do not feel responsible for the pregnancy that is induced is, I think, a dangerous precedent. It is just not true. Of course there is a problem when patients put you under pressure, and it is a very difficult ethical issue that needs to be resolved.
Lord Patel: My Lords, I think I have lost my thread, but I have said what I wanted to say.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe): My Lords, I begin by expressing my thanks to all noble Lords for the opportunity to debate these amendments. As the noble Baroness, Lady Thornton, pointed out at the beginning of her remarks, following the Government's concession in withdrawing Schedule 7 in its entirety, these amendments would have the effect of putting the Human Tissue Authority and Human Fertilisation and Embryology Authority out of scope of the Bill.
Our starting point in approaching these issues is a clear objective to streamline the process of regulation and, consequently, reduce costs and the administrative burden on establishments while continuing to offer the necessary protection for the public. The Bill presents us with an opportunity to achieve that. Our aim is to streamline healthcare and medical research regulation and so reduce bureaucracy. That approach is supported by leading assisted reproduction clinicians and their professional bodies and by the Academy of Medical Sciences.
The scope for streamlining is clear. We estimate that around 80 per cent of the centres currently licensed by the HFEA are also either regulated by the Care Quality Commission or are in premises that the commission regulates. Some 60 per cent of the centres licensed by the HTA are similarly covered by the CQC. It therefore seems unsustainable to continue to have these regulatory systems running in parallel. The question posed by my noble friend Lord Newton of Braintree as to whether the CQC wants to take on this work can best be answered by reference to the regulatory activity that it already performs. In any event, as regards the pace at which we take this, we intend to develop arrangements for the transfer of functions in consultation with the CQC over the next few years, and no transfer of functions will take place until that process is complete. However, the Government recognise that there are number of noble Lords with concerns about the proposal to transfer the functions of these two bodies, and not for a minute would I wish to minimise the nature of those concerns.
Let me be clear-both the HFEA and the HTA are models of regulatory authority that were right for the times in which they were created and which have done an admirable job in meeting the demands placed on them. However, as my noble and learned friend Lord
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The powers in Clause 5 would allow us to achieve that without disturbing the underlying legislation, which captures the ethical safeguards that Parliament has so carefully set in place. Any future proposals to abolish these two bodies will be provided for in future primary legislation. I am happy to reiterate my assurance that there is no intention to revisit the provisions in either the Human Tissue Act or the Human Fertilisation and Embryology Act that provide the important ethical safeguards necessary to maintain public confidence in these sensitive areas. I would say to my noble friend Lord Willis and to the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Deech, that means that future arrangements to regulate tissue and embryos must adhere strictly to the provisions of the two relevant Acts.
Noble Lords have raised particular concerns about the need to preserve the expertise these bodies have built up in the ethically sensitive subjects they deal with and the need to preserve the confidence of both professionals and the public in the way that these regulatory functions are carried out. The Government recognise the genuine nature of these concerns and we are determined that changes will not be at the expense of regulatory rigour or expertise.
I say to my noble friend Lord Willis that expertise will not be lost. It is envisaged that expertise will follow functions; for instance, through staff transfers and expert reference groups. Noble Lords have questioned the capacity of the CQC to assume these responsibilities. It will be given the capacity and the resources to carry out any widened functions. The CQC already has a proven track record of taking on the oversight of a specialist area. It took on the Mental Health Act Commission functions and I believe has successfully maintained oversight and focus on that area.
The noble Baroness, Lady Thornton, expressed concern that our whole approach in this area seemed unnecessarily complex. The powers that we are debating today will enable us to transfer some of the functions of the HFEA and HTA to other bodies but they do not enable us to do everything that we have set out in the ALB review. In order to abolish the HFEA and HTA or to transfer their research-related functions to any new research agency we will require powers under future primary legislation.
It may help if I try to provide a rough outline as to how and when we expect things to happen. We intend publically to consult on proposals to transfer all of the HFEA and HTA functions to other bodies in the late summer of 2011. Then during 2012-13 we would prepare draft orders for formal consultation under the provisions of this Bill dealing with the transfer of functions other than research functions. If appropriate we would then be able to lay the orders before Parliament.
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Without the inclusion of these bodies in Schedule 5 to the Public Bodies Bill we would have to provide for the transfer of their functions entirely within future primary legislation and this would significantly increase the risk that the underlying ethical provisions of the Human Fertilisation and Embryology Act and the Human Tissue Act could be reopened for debate and would afford less time for consideration and comment than the progressive approach which I have just outlined. I seek to impress upon noble Lords that that is a very powerful reason for wishing to grant the Government the powers we are seeking as regards these two bodies.
The noble Lord, Lord Warner, indicated that, in his view, the report by the Academy of Medical Sciences does not give sufficient backing to the idea that embryo research should be covered by the new research regulator. I would simply point him, if I may, towards paragraph 9.5.1 of the report which explicitly refers to the new body, if it is set up, having responsibility,
- "for 'specialist' approvals and licences within the HRA around data, tissue and embryos, gene therapy and exposure to radiation".
I think, as I read that, it was very much in the minds of the authors of the report that the research functions of the HFEA should be brought within the scope of a health research regulatory agency.
The noble and learned Baroness, Lady Butler-Sloss, expressed her worries about the information functions of the HFEA and the absence of a clear plan by the Government for what should happen to those functions. She is right, we have not fully made up our minds about where those functions should best sit, but that is one of the main reasons why we wish to consult on this. We need to ask the public and interested parties where these functions should sit, and there will be an impact assessment with the consultation.
My noble friend Lord Willis asked about the possibility of setting up a single research agency without primary legislation. He is technically right; we could do that. I should emphasise that we have not decided whether to accept the AMS recommendation to establish a single research agency-we think that there are merits in the proposal and we will be making an announcement shortly-but if we were to propose setting up such an agency we could do so initially by creating a special health authority. However, we could not legally transfer the research-related functions of either the HTA or the HFEA to that body. We could not make a transfer of functions to a special health authority without amending the 2006 Act.
The case was simply put by my noble and learned friend Lord Mackay of Clashfern. Essentially, we are asking the Committee to agree to grant the Government permission to consult on these matters. I hope that the noble Baroness will not seek to press her amendment today but instead will consider that a good purpose will be served by reflecting on the comments that I have made in response. In view of our concessions-
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Lord Warner: I am sorry to interrupt the Minister. I have been listening intently to what he has said. I am extremely confused about the order in which things are going to be done. As I understood what he was saying, we are going to get a series of orders that transfer functions through a process of consultation, which I welcome, but we may or may not know at that point what the Government are going to do about setting up a health research agency, either by statute or otherwise. As I understood him, we could be in the position of being asked to agree those orders before we know what the final endgame is. It would be helpful if, before the next stage of the Bill, the Minister could set this out more clearly for us in writing so that we can understand the sequence. I found it rather difficult to understand.
Earl Howe: I must apologise to the Committee if I was not sufficiently clear and I will be happy to write to those who have participated in this debate to make the position clearer. I was seeking to say that we do not wish to take a disjointed, piecemeal approach. There is a natural flow of process that, if Parliament agrees, can lead us to a position where we are able in one move, so to speak, to transfer the various functions more or less simultaneously-although I would not wish to undertake that the whole thing would be done on the same day-so as to arrive at that point.
In our view it is desirable to consult during the late summer of this year. We will then set about the process of designing statutory instruments based on that consultation and go out to consultation on them. All being well, we will then introduce a second-Session health Bill that will have within it the provisions to establish a single research regulator, assuming that that is what we decide to do. Therefore, the whole process should work in a seamless way. However, I shall be very happy to write to noble Lords setting that out.
I return to the point at which I left off, which is to express the hope that the noble Baroness will not press her amendment this evening. I hope that she will accept our assurance that we have a clear intention to consult on the proposed transfers of functions and that she will be willing to withdraw the amendment.
Baroness Thornton: My Lords, I thank everybody who has contributed to this debate. I knew that it would be an interesting debate and a long one. I have been told by my noble friend that I have to be brief, as the Committee still has a lot of things to get through and the rest of us can go home when we have finished this. As I say, I thank all those who have taken part in this debate. The remarks of the noble and learned Baroness, Lady Butler-Sloss, were forensic and, as usual, very helpful. The noble Lord, Lord Walton of Detchant, spoke with great wisdom and knowledge about both the HFEA and the HTA. The noble Lord, Lord Newton, spoke wisely about the CQC. Having been one of the architects of the CQC in the previous Government, I wish to put on record that I very much admire the work that it does. However, it is being asked to do a great deal more, which worries me.
I am pleased that the noble Baroness, Lady Deech, continues to support us as we work towards resolving this matter. The noble and learned Lord, Lord Mackay
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I accept that if we need to move to a more overarching medical research body, we need to go through a proper process. I am not convinced that the powers granted to the Government in this Bill are the way to do that or that what looks like a rather complex and very piecemeal process is the right way forward. However, I am grateful to the Minister for explaining this in great detail.
I am worried. A floating ethical framework sprang into my mind because I could not see where the ethical framework of what is being proposed will sit. If we cannot see where it will sit, what hope is there for the public? It seems to me that that is where the Government need to start. It is not a question of having a mechanical process and saying, "We will put this bit here and that bit somewhere else and have a regulation that will make sure that the research goes somewhere else", because if we cannot understand where the ethics sit we are in very serious trouble.
The Minister has given us a great deal to think about and I am grateful to him for his detailed answer. I will read the record and I look forward to receiving his letter. We will need to think about what he had to say and discuss it further before Report. I will not press the amendment now, so I beg leave to withdraw it.
Amendments 93 and 94 not moved.
10.15 pm
Amendments 96 to 97A not moved.
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Lord Hunt of Kings Heath: My Lords, I will move the amendment in the name of my noble friend Lord Whitty. Passenger Focus plays an important role in protecting the interests of Britain's rail passengers, England's bus passengers outside London, coach passengers on scheduled domestic services and tram passengers. It is important that this function is not undermined and it is not appropriate that Passenger Focus is included in the Bill. I am very happy that the noble Lord, Lord Taylor, is joining me in support of this important amendment. I beg to move.
Lord Whitty: My Lords, my noble friend did not realise that I had arrived from the airport to move the amendment. I, too, am grateful to the Minister and I congratulate him. This is the first time that a Minister in this Government has added their name to an amendment of mine on any piece of legislation. What I am about to say should not undermine my gratitude. However, I have to ask two questions.
First, where does this leave Passenger Focus, because it achieved the distinction of appearing under three different schedules to the Bill and it remains in Schedule 3, which we agreed at an earlier stage? The piece of paper given to us for our debate on Monday, had we reached the amendment then, indicated that a much reduced role is envisaged for Passenger Focus. The document states that it would concentrate on its,
that there was "scope for significant savings", and that the body would be working under a "significantly reduced budget". The reference to the core role is slightly sinister, because it implies that the organisation will focus on the complaints function and therefore act in processing and improving that function, but that it will not be allowed to be more critical of the train or bus companies and, more particularly, the department's overall transport policy as regards the rail or bus network. If that is the intention, it will neuter Passenger Focus considerably. I should like the noble Earl, Lord Attlee, who I assume will reply, to provide reassurance on that front.
My second question is on a wider front. The various existing consumer bodies are being dealt with differentially under this legislation. Some are to be abolished, some are to be merged, some are to have their functions transferred and some, given the abolition of Schedule 7, will be retained-presumably in their present form. Passenger Focus will be retained in a modified form. The Government's original intent, for which I had some regard, was to rationalise the whole structure of consumer representation. Instead of that, the danger is that they will leave a bigger hotchpotch than the aggregate of previous legislation on consumer matters and weaken the statutory base of a number of consumer bodies.
As the Committee knows, I have an interest as a past chair of Consumer Focus. On the one hand, it
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Lord Bradshaw: My Lords, I support what the noble Lord, Lord Whitty, said. There is certainly scope for economy. I did not agree with the previous Government's decision to transfer protection of bus and coach passengers to the Rail Passengers' Council. However, the work of the council is concentrated mainly on issues such as punctuality. It has produced extremely good reports on things that irritate users such as huge queues at booking offices and the way in which ticket machines baffle many users and often do not work. These issues are important to people and I cannot think who will regulate them for less money. Transferring the functions to the Office of Rail Regulation, which is full of lawyers, will raise the cost of doing this work.
I will say one further thing in defence of Passenger Focus. It has developed a system of statistical analysis by which it can take very little in the way of raw information and turn it into statistically robust results. I am all in favour of economy, but I am also in favour of having a body to look after the interests of passengers that is functional and that rests on a secure base. I and most passengers would regret anything that abolished this body.
Earl Attlee: My Lords, I was surprised when the noble Lord, Lord Whitty, did not move his amendment, so it is a great pleasure for me to respond to him. He and I have debated together over many years. He has accepted some of my amendments and taken others away. It is a great pleasure to continue our debate, albeit with our roles reversed.
The noble Lord's amendment seeks to remove Passenger Focus from Schedule 5 to the Bill. The appearance in the Bill of Passenger Focus does not reflect the view that the interests of passengers are unimportant. We are clear that passengers are the only reason why we run a public transport system. This was reflected in the public bodies review, which concluded that Passenger Focus should be retained but substantially reformed to focus on the core role of protecting passengers, thereby allowing a reduction in the cost to the taxpayer.
Noble Lords may see this as a first step towards cutting the budget of Passenger Focus to the point where it is no longer capable of being an effective voice for passengers. I reassure them that this is not the case. We fully accept the need for a powerful and effective passenger advocate. This is reinforced by EU
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The noble Lord, Lord Whitty, asked whether this was not simply an opportunity to weaken and abolish a body that has been critical of the Government in the past. The answer is no. We want to maintain an effective passenger advocate because that is the best way of ensuring that transport operators are held properly to account. This is an effective opportunity to ensure that that role is performed in a robust and cost-effective way.
The Government had originally listed Passenger Focus in Schedule 5 to enable possible changes to its functions. Further work and our discussions with Passenger Focus have clarified that we can significantly reduce the cost to the taxpayer without recourse to legislative change through Schedule 5. For example, efficiencies can be derived by reducing the scope of Passenger Focus's research and survey work. My noble friend Lord Taylor has added his name to Amendment 98 on that basis to support the removal of Passenger Focus from Schedule 5, which we hope will be welcomed by the Committee. However, the governance changes that we intend require its inclusion in Schedule 3, so we cannot support Amendment 75, which the noble Lord, Lord Whitty, was unable to move on Monday. Amendment 160A, which would remove Passenger Focus from Schedule 7, is effectively redundant in the light of the Government's decision to remove Schedule 7 from the Bill.
I hope that I have been able to reassure the Committee and the noble Lord that we are not planning to leave passengers without proper protection and I hope that the Committee will accept Amendment 98.
Lord Whitty: I am not sure that it is in order for me to reply, given that my noble friend moved the amendment. However, I am grateful for some of those reassurances about the future of Passenger Focus. It would be helpful if we could be told the nature of the changes in governance that the Government propose, but perhaps that is for another day. However, I think that the body's removal from this schedule is important. The noble Earl was probably not in a position to reply to my other points, which concerned the broader landscape of consumer representation.
Earl Attlee: The noble Lord asked what reforms we plan under Schedule 3. That schedule can be used to implement changes to the make-up and composition of the Passenger Focus board. Although the details are still to be finalised, the intention is to streamline the board's operation significantly, which will also result in significant cost reductions.
Lord Whitty: I thank the noble Earl. Of course, some of the make-up of the board reflects the structure of the railway industry and the structure of the company. I hope that we will not lose that geographical dimension in changing its composition. I accept what the noble Earl says in relation to Passenger Focus. Clearly, I am grateful for his support for the amendment, although I
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99A: Schedule 5, page 19, line 25, at end insert-
1 Section 21(2)(a) does not apply to an order under section 5 which provides for-
(a) functions of the British Waterways Board falling within section 21(3)(b) to (e) to be transferred to another person;
(b) functions of the Environment Agency falling within section 21(3)(b) to (e) to be transferred to a person to whom functions of the British Waterways Board are transferred by virtue of paragraph (a)."
Schedule 5, as amended, agreed.
Clause 6 : Power to authorise delegation
100: Clause 6, page 3, line 13, at beginning insert "Subject to section (Restrictions on ministerial powers),"
Amendments 102 and 103 not moved.
Schedule 6 : Power to authorise delegation: bodies and offices
Amendments 104 and 105 not moved.
Schedule 6, as amended, agreed.
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10.30 pm
Clause 7 : Consequential provision etc
105A: Clause 7, page 4, line 4, at end insert-
"( ) In relation to a transfer of functions, duties or powers under section 1 or 5, or to mergers under section 2, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (S.I.2006/246) apply to a transfer which relates to rights or liabilities under a contract of employment whether or not the transfer would, apart from this subsection, be a relevant transfer for the purposes of those regulations.
( ) In the case of an employee of any body whose functions, duties or powers are transferred or merged under section 1, 2 or 5-
(a) a period of employment with the transferor is to be treated as a period of employment with the recipient organisation;
(b) the transfer to the recipient organisation is not to be treated as a break in service."
Lord Whitty: In this amendment, I move away from the detailed consideration of individual bodies and their future to a more general principle. This relates to what happens to the staff of those bodies whose functions are transferred or merged. There is a clear-cut situation where, if bodies are abolished, although some of the bodies are Schedule 1, there has also been commitment by the Government to transfer the functions, duties or powers elsewhere and, therefore, the question of what happens to the staff who are carrying out those functions under the current arrangements does arise.
This amendment would make it clear that, in normal circumstances, the TUPE arrangements would apply as they would apply to mergers in both the private and the public sector, and across the private and the public sector where functions and duties are transferred. Under normal procedure concerning people's entitlement to terms and conditions, including redundancy terms, pensions and other aspects of their employment, if the functions are moved into a receiving body, it would be for that receiving body to maintain both the continuity of service and the terms and conditions unless and until, either by collective agreement or by individual contract agreement, those terms are changed.
Because of the complexity of the bodies involved and the contractual terms which appear and have grown up in many of these bodies over time, it may not be all that clear, even to eminent employment lawyers, whether a TUPE applies or not. Even in the more simple past, when we were only dealing with one or two mergers of bodies or transfers of functions, it sometimes was not at all clear. The form of words here is almost exactly that which was included in the legislation in 2006 which set up the present Consumer Focus body-the National Consumer Council in legal terms-when we had the merger of the old National Consumer Council, Energywatch and Postwatch. The terms and conditions were preserved, albeit in some situations it was not entirely clear whether TUPE would apply or not.
In 2006 the regulations on TUPE came in. When Consumer Focus was created they were quite new, but
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This amendment would make it clear, however, that if the function transfers or the duty and power transfers, the staff would go with them unless and until the receiving body decided it might wish to dispense with their services as the new employer. It is not up to the previous employer to declare them redundant until such a rationalisation has taken place by the receiving employer, which can happen more or less instantaneously in certain circumstances. The important point is that up until that point, the terms and conditions of the staff employed under the pre-existing bodies would be preserved.
This important point relates to quite a lot of staff, and there is quite a lot of uncertainty among the trade unions and staff bodies representing them. We need clarity on this and if the Government are unable to accept this form of words then, clearly, I am happy to discuss it with them. The principle needs to be established for all the bodies which remain within this Bill. I beg to move.
Lord Hunt of Kings Heath: My Lords, I would very much like to support my noble friend on this. It is timely to remember that thousands of people who work for the public bodies listed in this Bill are likely to be affected by its provisions. Many will lose their livelihoods; some will find their careers seriously damaged; some, as my noble friend Lord Whitty has said, will find themselves transferred to other employers. It is important that we recognise and acknowledge that those people have given dedicated service, in some cases for many years. Where they are transferring to another body, we must make the transition process as smooth as possible. That is clearly the intent behind my noble friend's amendment. It would ensure that, where a person is transferred to another body, TUPE will apply, with the implications and protections as described by my noble friend. I hope that the Minister will be able to provide the necessary assurances on that. The Government also need to take on board the point that my noble friend made about the complexity of the issue and the need for clarity, which is why his amendment deserves serious consideration.
Lord Taylor of Holbeach: I, too, am grateful to the noble Lord, Lord Whitty, for tabling the amendment, because it raises an important aspect of the reforms and allows the Committee to consider the impact of the Government's reform programme on the staff of the bodies affected. I take this opportunity to pay tribute to the work of the thousands of hard-working staff of public bodies across the country. Specifically, I put on record that our proposed reforms to public bodies are no reflection on the work of the staff.
I assure the Committee that the Government are working with the chairs and chief executives of public bodies and trade union representatives to ensure that
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The Cabinet Office has been working closely with other departments since 2010 to ensure that the needs of staff are fully factored into the public bodies programme of work, particularly on the need to provide staff with clarity following reform decisions and the milestones along the route. The Cabinet Secretary has sent a message to departments on that very point. The Cabinet Office has also provided a checklist of considerations for departments which takes the needs of staff and stakeholders into account.
Those arrangements reflect a flexible approach that ensures that government departments can respond in the context of individual changes-based, of course, on the proper protections that are already enshrined in UK employment law. That is the right approach to support our public bodies' staff. It also reflects the Cabinet Office statement of practice on staff transfers in the public sector. The guiding principles, as set out in the document state:
"The Government is committed to ensuring that the public sector is a good employer and a model contractor and client".
The principles recognise that the:
- "involvement, commitment and motivation of staff are vital for achieving smooth and seamless transition during such organisational change".
On the specifics of the amendment, I should like to inform the Committee why the Government believe that the blanket application of TUPE is not appropriate. TUPE, and the European law which underpins it, was designed to protect staff where the business for which they worked, or the services to which they were assigned, would be carried out by a different organisation. Staff retain their jobs and conditions, and the new employer steps into the shoes of the old one. The definition of relevant transfer under TUPE is broad and will cover most transfer situations.
However, Clause 23 already provides the mechanism for equivalent protection to be confirmed in non-TUPE situations where that is appropriate. That is underpinned by the Cabinet Office statement of practice on staff transfers, to which I have already referred, which provides that the TUPE principles should generally be followed through a transfer scheme which addresses the imperatives of the particular transfer.
The blanket application of TUPE to all transfers conducted pursuant to this Bill seems likely to lead to inefficiencies and unintended consequences. For example, there may be circumstances where a body following an order made under this Bill is carrying out functions which have significantly altered and which require different skills and resources, with the result that there is no relevant transfer for TUPE purposes. If TUPE were nevertheless to be applied, staff would be transferred to the new body by operation of law, only to be potentially made redundant by the transferee. This would involve extra work and unnecessary expense
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I appreciate the concern of the noble Lord, Lord Whitty, and I can assure him that the Government will continue to have a positive approach to TUPE regulations where they properly apply, and seek to make appropriate provision where this is not the case. I hope that, in the light of the assurances I have given, he will feel free to withdraw his amendment.
Lord Whitty: My Lords, I appreciate much of what the Minister has said about the approach of the Cabinet Office advice and what is going on in anticipation of various changes. Of course, we are not at a point, in most cases, where the exact format of the change is clear because we have to go through a period of consultation in association with the secondary legislation. However, I am slightly disappointed that he is not prepared to accept this amendment, because I had seen Clause 23(5), which referred to this, and my amendment was intended to be a rather clearer exposition of that principle and is the formulation that has been used on past occasions. It is true that people will find themselves employed by a new body and that there could be a redundancy very rapidly, but that has been the situation in both the private and the public sector, and is what is laid down in the TUPE regulations for a lot of situations and has happened in past public sector mergers.
The difficulty for me being able to be sufficiently reassured by the Minister's words and by Clause 23(5)(f) is the question why, if on previous occasions, legislation has provided for a pretty unambiguous form of wording that I have outlined in this amendment, we could not use a similar form of words in here. I think that would be greater reassurance to the staff and trade unions that are having to deal with potential changes of employer. I do, however, accept the good intentions of the Government, and the Minister in particular, and will not press this amendment. I will consider his words carefully to see whether I need to bring it back at a later stage. I beg leave to withdraw the amendment.
Clause 8 : Matters to be considered
10.45 pm
Lord Newton of Braintree: I wish to move this amendment briefly. I have ended up a bit confused on one point. Until the latest selection of amendments, my little amendment was sailing on its own and I might have regarded it as a sort of beacon of light-a light ship. Somehow, in the course of the past couple of days, it has acquired nine barnacles, and I am not
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What I do know is that since there are those who appear to think that I have been a bit troublesome on this Bill, I want to make the point that this is the first amendment I have actually moved, so all the trouble has been made by other noble Lords. My amendment is entirely benign. The only thing I have done that is unkind is to write my notes on the back of an envelope to match the Bill, but perhaps that was unkind. My speech will be short. I trailed it on Monday when something similar cropped up in a speech made by the noble Baroness, Lady Hayter. I gave my main thinking at col. 1409 of the Official Report.
The background is that I looked at Clause 8 and wondered what it is that Ministers have to take into account in making orders under these sections-efficiency, effectiveness, economy and securing appropriate accountability. I indicated on Monday that the accountability argument is pretty fair nonsense. Ministers are accountable for all this, so the issue is about how that accountability is exercised. Leaving that aside, all the other criteria strike me as utilitarian. I would claim as a mere humble former practising Member of Parliament to be interested in values. All I have done is put down an amendment that says they have also got to take account of,
That is pretty close to asking the Government to accept motherhood, and if they doubt it, let me say that during some train travelling today-I should say that I used four trains, three of which were at least 15 minutes late-I had plenty of idle moments. What I do in my idle moments is study the document that I carry close to my heart. It is the coalition's programme for Government. I am a faithful supporter. Its subtitle is, "Freedom, Fairness, Responsibility". The foreword on pages 7 and 8 was written by my right honourable friends the Prime Minister and the Deputy Prime Minister. It says that,
- "we will ensure that fairness is at the heart of those decisions ... we will extend transparency to every area of public life".
In respect of consumer protection the document states:
"We need to promote more responsible corporate and consumer behaviour through greater transparency".
I think that that should apply to the Government as well. The document goes on to make reference to,
The only thing I cannot find a reference to is openness.
If Ministers do not like all these words or if the draftsmen say that they are not the sort of thing you put in Bills, I can live with that, but I do think that something along these lines ought to be incorporated. On the basis of the evidence I have just quoted, I claim to be the true believer, and if the Minister resists me, I think that he declares himself a heretic, so I look forward to hearing what he has to say. I beg to move.
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Lord Maclennan of Rogart: My Lords, I rise simply to make it clear to the House that, at this hour of the night, my noble friend is not alone. His concern for promoting values in this Bill has been manifest from the beginning, and he enjoys considerable support from his coalition colleagues.
Lord Goodhart: My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.
It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.
That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.
Lord Hunt of Kings Heath: My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.
In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies-it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.
We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.
Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the
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That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.
I also believe-this relates to my Amendments 118A and 118B-that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord's amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government's proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,
- "if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the 'veto')".
The committee reminds us that, under the 2006 Act,
- "a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received".
The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.
I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him-it would be interesting to have further discussions between now and Report-is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.
My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord's amendment to make it clear to an
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Lord Goodhart: I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.
Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.
My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment-Amendment 126-to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?
Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:
"If the draft of an instrument containing an order under this Act ... would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument".
Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.
11 pm
Lord Newton of Braintree: Perhaps I may just indicate briefly that, although I said slightly flippantly that I had not had a chance to look at all the other amendments, I had a glance through them. I had some of the same reservations about the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt of Kings Heath, has just adumbrated. The two that I found myself most drawn to were that you cannot have an omnibus order but must deal with things one by one, which seems well worth considering, and this business about hybridity. If there was manifestly something that picked out an individual interest and treated it differently from other interests-if I might do my non-lawyer's translation of the hybridity problem-that would be a real question to be considered in certain circumstances. I hope that my noble friend will at least be able to reflect on these points.
Lord Mackay of Clashfern: On the amendment in the name of the noble Lord, Lord Goodhart, as the noble Lord, Lord Hunt, said, there is a question of a chilling factor in relation to bodies or organisations once they are named in a Bill. There is something to be said for having a closure in respect of bodies named now but also, if we get the Bill through in a satisfactory
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Lord Taylor of Holbeach: I do not suppose that the Committee would have chosen to debate this important group of amendments at this time of night. I do not really want to rush but I am mindful of the time. It is interesting that the amendments contain the workplace of me and the Bill team. This is certainly an area in which we are and have been much engaged. I hope that all noble Lords will understand that it is rarely possible to deliver everything. There are some areas where the Government have to draw a line but there are others-I think that I can indicate these in the debate this evening-where further consideration is justified and where I would hope to come back with amendments before Report, after discussions with noble Lords. I say that by way of preface.
The whole group of amendments relates to the procedures that Ministers must follow. These issues have had substantial discussion in Committee. I thank noble Lords across the Committee for their contributions. As I seek to respond to each amendment, I ask noble Lords to contextualise the debate against the changes that we have already announced in the Bill, notably the removal of Schedule 7 and our ongoing commitment to work with noble Lords on a variety of related issues.
I begin with Amendment 106A in the name of my noble friend Lord Newton of Braintree. This amendment would add the objectives of,
to the list to which the Minister must have regard when considering making an order under Sections 1 to 6. I thank him for his amendment and reassure the Committee that these objectives underpin the Government's rationale for reforming public bodies and, of course, the Government's programme as a whole. It is good that my noble friend carries the coalition agreement in his inside pocket, close to his heart. I am reassured by that and always value his contributions, even when they are not necessarily supportive of everything that I am seeking to do with this Bill. The only points where I fear we disagree concern whether this amendment would work in practice and whether such wording is necessary on the face of the Bill. The Government believe that such a requirement in legislative terms would be ambiguous and could, as drafted, be quite difficult to measure or assess. However, it is an area in Clause 8 that we have committed to look at.
Amendment 114A returns us to the question of consultation, which was originally debated on our first day in Committee on this Bill. It would amend government Amendment 114 by introducing a specific requirement to consult the public before laying an order using the main powers in the Bill. The Government have accepted
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However, I take issue with the amendment in the name of the noble Lord, Lord Hunt, as it would apply without due regard to proportionality to any proposed reform. Such an approach runs contrary not only to the policy of this Government but also to the existing code of practice on consultation, which was issued in June 2008 by the Government of whom the noble Lord, Lord Hunt, was a part. The introduction to the code of practice is clear:
"Ministers retain their existing discretion not to conduct formal consultation exercises under the terms of the Code. At times, a formal, written, public consultation will not be the most effective or proportionate way of seeking input from interested parties".
I do not quote from this document to seek to absolve Ministers of responsibility. Subsection (1)(b) in Amendment 114 specifically requires a Minister to consult persons whom he or she considers,
This provision clearly could include the public. The Minister must therefore expect to be held accountable for his or her decisions in relation to this provision. However, the proper requirement that Ministers should consider whether to consult the public does not lead to the conclusion that it will prove necessary or proportionate in all cases. For example, is it proportionate to require a full public consultation on the statutory abolition of Food From Britain, a body that, to all intents, has been defunct since 2009, or on the proposal to use Schedule 2 to merge the Pensions Ombudsman with the ombudsman for the board of the Pension Protection Fund? These two bodies already share services to a great extent and those functions will not change.
As with other cases in the Bill where the public will rightfully expect to be consulted, undoubtedly they will, but the Bill as drafted allows for that possibility and the Government accept their responsibility to ensure that that occurs when necessary. By contrast, the amendment proposed by the noble Lord, Lord Hunt, will remove the ability of Ministers to conduct a more targeted consultation when that is appropriate. While I have sympathy with the sentiment behind Amendment 114A, the Government do not believe that the public will welcome a proposal that would add unnecessary bureaucracy to the order-making process and with it, in effect, the process of reform.
The question of proportionality is also pertinent to Amendments 118A and 118B in the name of the noble Lord, Lord Hunt, which concern the parliamentary
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Amendment 118A seeks to make it explicit that a Minister wishing to make an order following a period of consultation must lay before Parliament a draft order and explanatory document. I agree with the spirit of the noble Lord's amendment, but I do not consider it necessary. While the current drafting of subsection (1) in government Amendment 118 states that a Minister,
it would in practice not be possible to make an order without following this procedure. Our current drafting simply reflects the fact that, following a period of consultation under Amendment 114, the Minister is not obliged to proceed with the proposal.
Amendment 118B would introduce a wholly new parliamentary procedure for these orders, giving a committee of either House the opportunity not only to reject but also to amend an order, or to recommend that the proposals be taken forward only through primary legislation. As I argued when we debated this issue on the first day in Committee, the Government cannot support that proposal for a number of reasons. First, I maintain my position that the noble Lord's amendment goes beyond the scope of the Bill in seeking to effect a fundamental shift in how this House deals with secondary legislation. Secondly, I do not accept that the powers of the Bill, especially in the light of the removal of Schedule 7 and the additional safeguards that the Government are now proposing, justify the use of such a restrictive parliamentary procedure. It is now the case that no body can be subject to the powers of the Bill unless Parliament has consented through primary legislation to its inclusion in the Bill's schedules. The waiting room of Schedule 7 has gone. Therefore, the scope of the powers in this Bill has been significantly narrowed. On this basis, to continue to suggest that the Bill requires a more restrictive scrutiny procedure than, for example, the Legislative and Regulatory Reform Act appears a disproportionate response, particularly in the light of the additional safeguards that we have introduced and continued to work towards and the fact that the proposed procedure would apply to each and every order made under this Bill.
I do not intend to quote a list of examples of such reforms. Suffice it to say that I do not consider that the opposition amendment represents a proportionate procedure for an order to abolish a body that is already defunct. Our approach, by contrast, gives Parliament the flexibility to select and enhance procedure while maintaining for the Government the reasonable
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Lord Hunt of Kings Heath: My Lords, I am most grateful to the noble Lord for giving way. I will not detain the Committee very long. I want to make two points. First, presumably in the case of defunct bodies, the Select Committee appointed by the House could deal with this matter in very short order. The Merits Committee, for instance, deals with a huge number of statutory instruments every week. It will list a huge number to which it does not draw the special attention of the House and it focuses on the orders it considers to be most important. Secondly, the noble Lord has been pretty forthright in rejecting my amendment. Between now and Report will the Government at least give careful consideration to the report of the Delegated Powers and Regulatory Reform Committee? It has reported only in the past few days and it covers this issue.
Lord Taylor of Holbeach: Of course and I would like to feel that the noble Lord would know that I wish to continue the very useful dialogue we have had on this Bill. I felt it would help the noble Lord if I defined the areas where I feel there is going to be more scope for improving the Bill-as we would both describe it-and areas where I think it is not going to be possible. I thought it was better to be upfront and frank about it and I hope that the noble Lord will understand that. We want to maintain our dialogue because, despite the difficulties the Bill had in its early days, I believe this could be a very useful piece of legislation and one which suits both Government and Parliament in its operation provided we put the proper work into the foundations. We will have a chance to talk about that when we come to other amendments in this now slightly enhanced grouping.
As I said, this is why I cannot accept Amendment 118B or Amendment 176 in the name of the noble Lord, Lord Dubs, which makes provision regarding the commencement date of amending orders using wording which appears to be drawn from the Civil Contingencies Act. That Act was designed to create a framework for dealing with emergency regulations, which, by their extreme nature, circumvent the usual channels of parliamentary scrutiny. I do not accept that there is a parallel between such orders and those which would be made under this Bill.
Originally my speaking note at this point mentioned sunsetting; then my speaking note did not mention sunsetting because the amendment of the noble Lord, Lord Goodhart, was going to be taken separately. If the noble Lord does not mind I will put it at the end because I think it is quite important that I can say a few words on it.
Amendment 176 would prevent an order being made under this Act from applying to more than one body or office. I understand the thinking behind the amendment which seeks to ensure proper parliamentary scrutiny of these important orders. However, I am also anxious that the Bill is not amended in such a way that will restrict the sensible decision-making of departments or overburden Parliament with a requirement to consider
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We do not accept the argument that in all cases the use of omnibus orders would necessarily reduce the level of parliamentary scrutiny. I should also say to the noble Lord that the particular amendments under discussion would have what I believe are unintended consequences by preventing any orders to merge bodies using the power in Clause 2 as such orders would by their nature apply to more than one body or office. However, I am willing to consider again whether some form of restriction on the use of omnibus orders might be appropriate. I would be happy to discuss that with the noble Lord prior to Report stage. So that is another item for our agenda.
Amendment 177 would remove the provision in Clause 27 that aims to give certainty to the order-making procedure and to avoid lengthy debates on hybridity that could unnecessarily delay reforms from being taken forward by Ministers. This sort of provision is not without precedent; nor does it broaden the powers of Ministers in any significant way. Indeed, similar provisions form parts of a number of Acts passed by the previous Administration, including the Regional Development Agencies Act 1998, the Freedom of Information Act 2000, the Charities Act 2006, the Climate Change Act 2008 and the Equality Act 2010. In addition, I am happy to assure the Committee that the Government's initial assessment was that none of the proposed orders to take forward the reform of bodies listed in Schedules 1 to 6 could be considered hybrid.
Amendment 178 would require an annual report from a Minister regarding the use of order-making powers. I understand that the intention of this amendment is to ensure that the Government are properly held to account for their use of these powers, which is of course right and proper. However, the exercise of the powers will be a matter of public record, as is the case in the exercise of any powers made by statutory instrument. In addition, parliamentarians have a variety of means by which to question the Government on all aspects of policy relating to public bodies via Parliamentary Questions and the Select Committee process. I am unclear what is expected to be gained by the creation of a new reporting burden.
It is also the case that these powers will not be exercised centrally via the Cabinet Office but elsewhere by individual Ministers in departments, who will each have set out their own approach to public body reform in their departmental business plans. It is by reference to those documents that the Government have committed to be held to account and departments will report quarterly on them as a matter of course.
I turn to my noble friend Lord Goodhart's amendments, which seek to sunset the order-making powers contained in Clauses 1 to 6, 13, 17 and 18 so that they could no longer be used after the dissolution
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The issue of sunsetting all the parts of the Bill is a complex one. I can see logic in not leaving bodies in schedules in perpetuity; I think that the noble Lord, Lord Hunt, and my noble and learned friend Lord Mackay made a similar point. Although this is something that the Government are still considering, there is perhaps more merit in the option proposed recently by the noble Baroness, Lady Royall, of sunsetting the contents of the schedules to the Bill rather than the powers themselves. That is all the more persuasive in the light of the removal of Schedule 7, which has drastically limited the scope of these powers, something that had not happened when my noble friend Lord Goodhart tabled his amendment.
Inserting a sunset clause that would limit the period in which powers could be used could now be counterproductive and potentially leave us in the same position as we are in today-that is, without a mechanism to take forward reforms following the regular review of public bodies that the Government will take forward, which I hope will continue in future. By contrast, leaving the powers on the statute book would leave open the possibility for Parliament to debate and consent to the repopulation of the Bill's schedules through later primary legislation, without having to cover what would be well trodden ground. However, as I made clear to the noble Lord, the Government have already committed to consider this issue further prior to Report stage. I do not intend to renege on that agreement. I am happy to engage on this issue with my noble friend Lord Goodhart and other noble Lords. In that spirit, I hope that he will not press his amendment.
I thank all noble Lords who have contributed to this debate and who have engaged in discussions at earlier stages as this is a culmination of other debates on mechanisms in this Bill. I have made it clear that we continue to look at Clause 8. I hope that my responses today and the amendments and the commitments that the Government have already made reassure the Committee that this Government will ensure that the procedure applicable to orders made under this Bill is proportionate and sensible and allows for proper parliamentary scrutiny of Ministers' actions. In light of those assurances, I invite my noble friend Lord Newton of Braintree to withdraw his amendment.
Lord Newton of Braintree: My Lords, I need hardly say that I intend to withdraw the amendment. However, I wish to make a few observations. If I understood my noble friend aright, he said that there was no possibility that any order made in relation to any of these bodies could be hybrid.
Lord Taylor of Holbeach: That was our assessment.
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Lord Newton of Braintree: In that case, why does subsection (4) of Clause 27 need to be in the Bill? I do not expect an answer to that now but given that a large part of my noble friend's argument was about whether or not things needed to be in the Bill, to put in the Bill something against a risk that does not exist-or is said not to exist-seems to me superfluous. My other point is more friendly. I rather agree: I cannot see much point in the annual reporting requirement.
Beyond that I will not comment except on my own amendment. As I have already said, I could have predicted the "don't think it ought to be in the Bill" stuff. I could have predicted the line of argument that all these values are so engraved on the hearts and minds-and no doubt other parts of the anatomy-of Ministers that there is no need to engrave them in the legislation, which gives them the powers to do what they can. However, given that they should be committed to the declarations in the coalition's programme, they should be bound to observe those declarations in the legislation which the coalition passes. I cannot think that that is unreasonable.
My next observation increases my puzzlement. As I said on Monday, when I raised somewhat comparable points with the noble Baroness, Lady Ashton of Upholland, in relation to the terms of reference of a justice council in the Tribunals, Courts and Enforcement Bill, she went away and produced an amendment which wrote in some of these values. I have not been able to consult the noble Baroness as she has rather different responsibilities on her plate in other climes, but my guess is-I hope that I do not upset my noble friend by saying this-that she took my amendment away from a Committee in the Moses Room and went back to the department and it said, "We don't think this needs to be in the Bill", and then she said words to the effect of, "Get stuffed. I think this is reasonable and I think Lord Newton is a decent bloke. Let's put it in the Bill". I hope that something similar will happen between now and Report. But for the moment, such is my docility and my dedication to the coalition that I beg leave to withdraw my amendment.
Amendment 108 had been withdrawn from the Marshalled List.
Amendments 109 to 110 not moved.
Amendments 111 and 112 had been withdrawn from the Marshalled List.
11.30 pm
9 Mar 2011 : Column 1728
Lord Taylor of Holbeach: My Lords, government Amendments 113ZA to 113E would change the circumstance in which consent is required from the devolved Administrations for orders brought forward under Clauses 1 to 6. Clause 9 stipulates the circumstances in which the consent of the devolved Administrations should be sought. At present, consent is required from the Scottish or Welsh Ministers or the appropriate Northern Ireland department. The Constitution Committee's report recommended that consent should more appropriately be obtained from the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly.
Following that report, and in consultation with the devolved Administrations, the Government have tabled amendments to change the current reference to Ministers to reference to the legislatures, in order to reflect the views of the Constitution Committee and the devolved Administrations, which are content with these proposals and have agreed to legislative consent Motions based on this provision.
The remaining government amendments are in response to further consultation with the devolved Administrations. They widen the circumstances in which consent from the Scottish Parliament and the Northern Ireland Assembly would be required in order properly to reflect the relevant devolution settlements, and have been reached in agreement with those Administrations and, again, the devolved Administrations have agreed to legislative consent Motions based on this provision.
Amendment 113AA extends the need for consent from the Scottish Parliament to take into account situations that may arise where functions of Scottish Ministers are altered by changes made by the Bill, but where those changes are not already covered by Clause 9(1) as it stands. The amendment excludes the need for consent to some changes under Clauses 1 and 2, because it would not be appropriate to require consent from devolved Ministers where a body's functions are in a reserved area and the body is being abolished, or abolished by way of merger. Without this exception, consent of devolved Ministers would be required in areas that are primarily reserved under the Scotland Act 1998.
The drafting reflects agreement reached with the Scottish Government, and we believe that it is a sensible and pragmatic solution that will allow us to implement orders under this Bill effectively. The amendments also ensure that the Bill is consistent with the legislative consent motion currently lodged in the Scottish Parliament, following discussions between my department and the Scottish Government. I beg to move.
Lord Rowlands: I warmly welcome the amendments introduced by the Minister, because the Constitution Committee made a sensible proposal. It was obviously clear that it should apply to not only Welsh Ministers but the Welsh Assembly.
Amendment 113A had been withdrawn from the Marshalled List.
9 Mar 2011 : Column 1729
113AA: Clause 9, page 4, line 22, at end insert ", or
(b) which modifies the functions of the Scottish Ministers.
(1A) Consent is not required under subsection (1)(b) in relation to provision abolishing a function of the Scottish Ministers which relates to a body abolished under section 1 or 2."
113AB: Clause 9, page 4, line 23, leave out subsection (2) and insert-
"(2) An order under sections 1 to 6 requires the consent of the Northern Ireland Assembly to make provision-
(a) which would be within the legislative competence of the Northern Ireland Assembly if it were contained in an Act of the Assembly, or
(b) which modifies the functions of a person within subsection (2A).
(2A) The persons referred to in subsection (2)(b) are-
(a) the First Minister and deputy First Minister of Northern Ireland;
(b) a Northern Ireland Minister;
(c) the Attorney General for Northern Ireland;
(d) a Northern Ireland department;
(e) a person exercising public functions in relation to a transferred matter (within the meaning of the Northern Ireland Act 1998)."
Amendments 113AA and 113AB agreed.
Amendment 113B had been withdrawn from the Marshalled List.
113BB: Clause 9, page 4, line 30, at end insert "and the provision does not affect, other than incidentally, a transferred matter (within the meaning of that Act)"
113BC: Clause 9, page 4, line 31, leave out subsection (4) and insert-
"(4) An order under sections 1 to 6 requires the consent of the National Assembly for Wales to make provision which would be within the legislative competence of the Assembly if it were contained in a Measure of the Assembly (or, if the order is made after the Assembly Act provisions come into force, an Act of the Assembly).
(4A) An order under sections 1 to 6 requires the consent of the Welsh Ministers to make provision not falling within subsection (4)-
(a) which modifies the functions of the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government, or
(b) which could be made by any of those persons."
Amendments 113BA to 113BC agreed.
Amendment 113C had been withdrawn from the Marshalled List.
9 Mar 2011 : Column 1730
114: After Clause 9, insert the following new Clause-
(1) A Minister proposing to make an order under sections 1 to 6 must consult-
(a) the body or the holder of the office to which the proposal relates,
(b) such other persons as appear to the Minister to be representative of interests substantially affected by the proposal,
(c) the Scottish Ministers, if the proposal relates to any matter, so far as applying in or as regards Scotland, in relation to which the Scottish Ministers exercise functions (and where the consent of the Scottish Parliament is not required under section 9),
(d) a Northern Ireland department, if the proposal relates to any matter, so far as applying in or as regards Northern Ireland, in relation to which the department exercises functions (and where the consent of the Northern Ireland Assembly is not required under section 9),
(e) the Welsh Ministers, if the proposal relates to any matter, so far as applying in or as regards Wales, in relation to which the Welsh Ministers exercise functions (and where the consent of the National Assembly for Wales is not required under section 9),
(f) where the functions affected by the proposal relate to the administration of justice, the Lord Chief Justice, and
(g) such other persons as the Minister considers appropriate.
(2) If, as a result of consultation under subsection (1), it appears to the Minister appropriate to change the whole or part of the proposal, the Minister must carry out such further consultation with respect to the changes as seems appropriate.
(3) It is immaterial for the purposes of this section whether consultation is carried out before or after the commencement of this section."
Amendments 114A to 117 (to Amendment 114) not moved.
118: After Clause 9, insert the following new Clause-
(1) If after consultation under section (Consultation) the Minister considers it appropriate to proceed with the making of an order under sections 1 to 6, the Minister may lay before Parliament-
(a) a draft order, and
(b) an explanatory document.
9 Mar 2011 : Column 1731
(2) The explanatory document must-
(a) introduce and give reasons for the order (including reasons relating to the objectives in section 8(1)),
(b) explain why the Minister considers that the conditions in section 8(2)(a) and (b) are satisfied, and
(c) contain a summary of representations received in the consultation.
(3) The Minister may not act under subsection (1) before the end of the period of twelve weeks beginning with the day on which the consultation began.
(4) Subject as follows, if after the expiry of the 40-day period the draft order laid under subsection (1) is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the draft order.
(5) The procedure in subsections (6) to (9) shall apply to the draft order instead of the procedure in subsection (4) if-
(a) either House of Parliament so resolves within the 30-day period, or
(b) a committee of either House charged with reporting on the draft order so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject it within that period.
(6) The Minister must have regard to-
(a) any representations,
(b) any resolution of either House of Parliament, and
(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft order,
made during the 60-day period with regard to the draft order.
(7) If after the expiry of the 60-day period the draft order is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the draft order.
(8) If after the expiry of the 60-day period the Minister wishes to proceed with the draft order but with material changes, the Minister may lay before Parliament-
(a) a revised draft order, and
(b) a statement giving a summary of the changes proposed.
(9) If the revised draft order is approved by a resolution of each House of Parliament, the Minister may make an order in the terms of the revised draft order.
(10) For the purposes of this section an order is made in the terms of a draft order or revised draft order if it contains no material changes to its provisions."
Amendments 118A and 118B (to Amendment 118) not moved.
Clause 10 : Procedure for orders
Amendment 120 had been withdrawn from the Marshalled List.
Amendments 121 and 122 not moved.
Amendment 123 had been withdrawn from the Marshalled List.
Amendment 125 had been withdrawn from the Marshalled List.
9 Mar 2011 : Column 1732
Clause 11 : Power to amend Schedules 1 to 6
Amendment 126 had been withdrawn from the Marshalled List.
Debate on whether Clause 11 should stand part of the Bill.
Lord Norton of Louth: My Lords, I rise briefly to welcome the decision of the Government not to proceed with Clause 11 and Schedule 7 to the Bill. As I said on Second Reading, the prime mischief of the Bill is to be found in Clause 11 and Schedule 7. It is not the only mischief-hence several of the other amendments under discussion-but it is the prime mischief. As the Constitution Committee emphasised, the provision was objectionable on constitutional grounds. The concerns expressed in the report recurred on Second Reading and have been pursued since. There were problems with the inclusion of quasi-judicial bodies, as explained in a powerful speech by the noble and learned Lord, Lord Woolf, and the Government came to recognise the force of that argument.
However, even with the removal of the bodies with a quasi-judicial role, the basic objection to the provision remained. I saw no clear rationale for placing statutory public bodies in a living uncertainty. As I said in November, this was a lazy way of legislating: effectively parking certain bodies in Schedule 7 until such time as the Government decided what to do with them, whereupon they would place them by order in another schedule. I am very pleased that the Government have now recognised the force of the argument against Clause 11. That argument has been widely accepted in the House.
As I said on Second Reading, there is an alternative to the clause. The Government plan a triennial review of non-departmental public bodies. Why should we not have a public bodies Bill in each Parliament, thereby enabling concrete proposals to be put before Parliament and given proper scrutiny by both Houses? That is the way forward. I am delighted that my noble friend Lord Taylor of Holbeach has added his name to oppose the Motion that Clause 11 stand part of the Bill, and I pay tribute to the way in which he has listened to Members in all parts of the House and taken on board the points made.
Lord Goodhart: My Lords, I support what my noble friend Lord Norton said. The independence of the judiciary is a central and essential part of the constitution. In particular, the provision that would have enabled the Government to get rid of the Judicial Appointments Commission was plainly unconstitutional and could only have been dealt with by primary legislation.
Baroness Hayter of Kentish Town: My Lords, first, I declare an interest as chair of the Legal Services Consumer Panel, which is part of the Legal Services Board and thus funded indirectly by lawyers, although technically appointed by the Secretary of State. Although we are about to see the LSB dropped from the Bill, I will raise some issues. It will become clear as I speak why I need to do that.
9 Mar 2011 : Column 1733
The UK has a long and proud record of an independent Bar, and of independent solicitors. This is important for its own sake, but also because the Bar is the pool from which our judiciary is drawn. They are thus already known for their robustness and independence from political influence by the time they don their judicial wigs. Even before that, lawyers can freely represent clients who are prosecuted by the state or even represent clients taking action against the state safe in the knowledge that their licence and freedom to practise cannot be removed by the state, as it was given by the Bar Council or the Law Society, over which the state has no control.
It is that security that enables lawyers to feel quite free to represent clients without looking over their shoulder to see whether they will be jeopardising their future livelihood. It is very hard to emphasise how important this tradition has been both here and abroad. There were therefore concerns when it was decided that the role of the Bar Council and the Law Society in authorising and disciplining lawyers was to be overseen, and indeed authorised, by the Legal Services Board, which was set up by statute with its members appointed by an elected politician, or at least a member of the legislature-the Secretary of State.
Although they accepted that the era of full self-regulation was past and that some independent membership of relevant boards was required, lawyers here and abroad were wary of the Government taking over ultimate responsibility for effectively granting or removing the licence to practise, with the implication of the regulation of lawyers coming under government control. Nevertheless, when the LSB was set up, albeit funded by lawyers, there were many-I am sure sincere-assurances as to the independence of the Legal Services Board from political interference. Lawyers both here and abroad-because of course many are trained here-were assured that government Ministers would not remove a lawyer who could upset or challenge them. It is very much for that reason that I am delighted about the loss of Clause 11 and Schedule 7, which of course list the LSB. However, in the mean time, another part of government has taken a quite serious swipe at the LSB, as well as my own Legal Services Consumer Panel, and at the new Legal Services Ombudsman set up under the same 2007 Act.
On 8 October last year, just days before the 14 October announcement of the bodies to be abolished or amended by this Bill, all three bodies received letters from the Ministry of Justice saying that the Secretary of State had received a letter from Francis Maude, the Minister for the Cabinet Office, telling us that our three independent, stand-alone websites "will have to be closed" and that we would need to use "an approved government website"-in other words, a .gov.uk domain. It will not come as any surprise that all three bodies protested most strongly that, being independent of government, we would not be treated in that way. Elizabeth France, the chair of the Legal Ombudsman, wrote to the Minister of Justice on 25 October saying that there was no justification for an ombudsman, set up to demonstrate independence from government regulation and the profession and spending no government money, having a .gov address. As she stressed, other ombudsmen, whether it be the Local Government
9 Mar 2011 : Column 1734
On 28 February, we had confirmation of the very welcome decision to drop Clause 11 and Schedule 7, as reported at col. 799 of Hansard, and indeed had the Minister's declaration that:
"The Government absolutely recognise that some public functions need to be carried out independently of Ministers".-[Official Report, 28/2/11; col. 798.]
Just days after that, on 2 March, guess what? We received another e-mail from the Ministry of Justice telling us, "You will need to close your website by 31 March 2011". To my knowledge there is no legal basis for such diktat from the Cabinet Office and there is, of course, no saving of public money.
11.45 pm
On behalf of the Legal Services Consumer Panel I would be happy to have a hyperlink from a government website to ours to aid navigation, but there is a more serious issue. As with other parts of the legal services architecture, we must not only control the content of our website but also ensure that the public, lawyers and clients-yes, they are prisoners but they are our clients-can give feedback to our consultation and give their views via the website, absolutely confident that that information that they send us via the web will not first be seen by the Government or anyone working for them.
If the Government were to come up with a wheeze to close our website, I would prefer us to have no website at all rather than being an arm of the Government's. I hope it will not come to that, with all its implications for transparency, to say nothing of my role as chair. The Secretary of State, I am sure, would remove me fairly promptly if I were to disobey in those ways.
I ask the Minister, therefore-and I have given warning of this-first, is this a new way of exercising control and undermining the independence of a body by finding another route, having discovered that Clause 11 and Schedule 7 are unacceptable to the House? Secondly, are the Government really committed to operational independence of those bodies which were set up to take decisions free of political interference, as the Minister so clearly implied on 28 February?
I am sorry to raise this on the very welcome decision to get rid of this schedule, but it seems to me that we need to ensure that the Government are committed to the continuing independent decision-making of those bodies.
Lord Rowlands: My Lords, I had tabled two amendments in this group, Amendment 131, to leave out the Advisory Council on Public Records, and Amendment 161, to leave out the Public Records
9 Mar 2011 : Column 1735
What would have happened, for example, to the Advisory Council on Public Records? I had the pleasure of serving on this council for a number of years; I thought we were rather a useful body. Most Lord Chancellors seemed to think we were helpful, giving independent advice on whether sensitive records should be released or not. We were a kind of independent buffer, and assisted the Lord Chancellor in that respect. I hope this does not sound boastful but we were quite a well qualified group on the council, and very cheap. It was chaired by the Master of the Rolls, and the last time I saw it was costing about £2,500 a year in expenses to run.
I would be fascinated to know what the intention of including the Advisory Council on Public Records in Schedule 7 was. What was the alternative? I would love to know whether former Lord Chancellors thought a change was necessary.
On a much larger count, what were the Government going to do about the Public Records Office, which was included in this Bill? At various times in my life I have almost become a resident of the Public Records Office and an ex officio member. I have admired and benefited enormously from the fantastic research facilities at Kew and the quality and the dedication of the staff there.
I am happy to tell you that, thankfully, these bodies are now outside the scope of the Bill, but can the Minister tell us what they would have done with them had they left Schedule 7 in? I would very much welcome my curiosity being satisfied in this respect.
Baroness Royall of Blaisdon: I, too, am delighted that the Minister has added his name to the Clause 11 and Schedule 7 stand part debate, and pay tribute to him for listening so attentively to everyone around the Chamber.
I feel sure that I know exactly how it will have happened. He will have been in the Cabinet Office, or wherever, and the Secretary of State will be saying, "Don't be silly. Of course you can get it through the Lords". He will be saying, "No, I'm listening. I can't. It's too difficult". Eventually, the noble Lord's arguments will have prevailed, and I am delighted about that.
In moving that the Bill be read a second time, the noble Lord said:
"The fact that a body is named in Schedule 7 to the Bill should not be misconstrued as constituting an intent to abolish or otherwise reform".-[Official Report, 9/11/10; col. 67.]
He said that in good faith, but it is understandable that any body mentioned in Schedule 7 was immediately worried. Its current operations and future prospects were thrown into doubt and confusion. I recognise that that cannot have been the Government's intent-that simply does not make economic sense or for good governance-but it was the reality. Each organisation believed itself to be just two orders away from modification, merger or, even worse, abolition. The chilling factor already mentioned was mighty.
9 Mar 2011 : Column 1736
If the Minister had not indicated that the Government were minded to delete Clause 11 and Schedule 7, I can assure him that Committee stage would have lasted for even longer, because it would have been our duty to table an amendment on each of the bodies to tease out from the Government their intentions for the body in question. Thankfully, such scrutiny was not needed but, more importantly, the clause and schedule are being deleted, so the axe has been lifted and the bodies mentioned can get on with their work.
I do not want to detain noble Lords at this hour, but I must say that Clause 11 and Schedule 7 were very unwise. They are a testament to rushed drafting and a woeful lack of consultation between the Cabinet Office and other departments. The Government have seen sense; and I am glad. I have a question for the Minister. I presume that some of the bodies mentioned in the schedule might be moved at some stage in the legislative process. Can he say which or how many bodies will be moved, where they will be moved to and when that will be? I would naturally also be grateful for confirmation that the necessary consultation is taking place at this moment with any bodies likely to be moved from Schedule 7 into another schedule.
I have great sympathy with the noble Lord, Lord Norton of Louth, when he says that there should be a Public Bodies Bill at the beginning of each Parliament but, in essence, if we are all content with the framework of this Bill and the schedules are sunsetted, that is what we will have.
Lord Taylor of Holbeach: I am very grateful for those contributions. If there were any doubt why we were wise not to keep Schedule 7 in the Bill, the answer lies in the comments of the noble Lord, Lord Rowlands. As like as not, nothing would have happened to those bodies. They would have been subject to a review in another three years under a periodic review of public bodies, which is an ongoing commitment of the Government. As the noble Baroness pointed out, it was very difficult for any representative of the Government to convince public bodies that that was the case. We may now have a much more satisfactory solution-from both a parliamentary and a practical point of view-to how the review of public bodies can be an ongoing process.
I thank my noble friend Lord Norton of Louth. He and I have known each other longer, I guess, than any other people in this House. We were youngsters together. Indeed, my noble friend was the William Hague of his day at Conservative Party conferences, but he will probably not thank me very much for revealing that to the House. I thank him for his comments. We have taken the committee's reports seriously and sought to address them, because I have taken the view that the guidance of this House has been positive rather than destructive.
I turn specifically to a comment of the noble Baroness, Lady Royall, that there was a lack of discussion between the departments. I do not think there has been any Bill in which there has been so much discussion across government departments. It is one of the complexities of this Bill that it involves every department, so all departments have been involved in the preparation and structure of the Bill.
9 Mar 2011 : Column 1737
As for the detailed question which the noble Baroness asked me about any movement of bodies into schedules during various stages of the Bill, I am not in a position to give an answer on that at this stage, but I will keep the House informed. We are determined that nothing should be introduced to the Bill that cannot be justified by a strong sense of purpose and suitability, and it is not a large number of bodies involved. Consultations are going on, but there will be a number of bodies where proposals exist to come into the Bill that will not be introduced into the Bill because we do not consider that they are in a suitable state of preparation. We feel that we have to justify the admission of any body that we bring into the Bill at this stage. I think that is a reasonable position, and I hope all Members of the Committee will agree with that.
The noble Baroness, Lady Hayter, and I have talked about the problem that she has. When she talked about the Government being deaf, I hope she was not referring to me. I hope she would acknowledge that I responded immediately to the point she made; I got a response and I showed it to her this evening before we came in here in the hope that we would not have to debate it. That is because it is not really a matter for this Bill; it is a matter of the relationship between public bodies-and particularly those in the legal sector-and Government. I will, of course, write to her on the situation as it is, and I note her interest in the matter. I hope that we can keep in touch.
I should just say a few words on these parts of the Bill. As set out in the House on 28 February, these parts of the Bill were designed to facilitate the Government's stated commitment to the regular review of all public bodies by creating a means by which changes to such bodies could be made following future reviews without recourse to further primary legislation. It was not, as some have suggested, intended to threaten the status of public bodies that the Government had decided needed to be retained. In particular, the Government recognise that some public functions need to be carried out independently of Ministers. Schedule 7 was never intended to hinder or threaten their independence. However, following representations from noble Lords across the House, including Members of the Delegated Powers and Regulatory Reform Committee, the Government have acknowledged the significant concern within the House that these parts of the Bill represented a significant delegation of powers to Ministers and had the potential to constitute a threat to the necessary independence of some public functions.
Accordingly, I have added my name to those of other noble Lords opposing the question that Clause 11 and Schedule 7 should stand part of the Bill. The consequences of removing these parts from the Bill will be that the powers in the Public Bodies Bill cannot apply to any body or office without the express approval of Parliament through primary legislation for that body or office to be listed in one of the Bill's schedules. Accordingly, any changes to public bodies following the Government's planned future reviews which necessitate legislation will require a primary legislative vehicle. I hope that this change provides a significant assurance to the Committee both as regards the status of bodies and the Government's commitment to the appropriate parliamentary scrutiny of government policy.
9 Mar 2011 : Column 1738
As I set out on 28 February, it will also be necessary, as a result of the removal of Schedule 7, to introduce a small number of amendments to move bodies currently in that schedule to one or more of the other schedules. These changes will ensure that all the reforms announced in last year's review can be implemented. These amendments will be made at a later stage of the Bill.
I thank noble Lords for their contributions to the debate and for their positive and helpful engagement on the question of the proper scope and mechanism of this Bill. Throughout its passage to date I hope that, in agreeing to oppose the question that Clause 11 and Schedule 7 should stand part, I have been able to demonstrate the Government's commitment to engage with and respond to the concerns of noble Lords.
Schedule 7 : Bodies and offices subject to power to add to other Schedules
Midnight
Amendments 131A to 133A had been withdrawn from the Marshalled List.
Amendments 134 to 136ZA not moved.
Amendments 136A to 137C had been withdrawn from the Marshalled List.
Amendments 137D and 138 not moved.
Amendments 139 and 139ZA had been withdrawn from the Marshalled List.
Amendment 139B had been withdrawn from the Marshalled List.
Amendment 140A had been withdrawn from the Marshalled List.
Amendments 141 and 141A not moved.
Amendments 142 and 142ZA had been withdrawn from the Marshalled List.
Amendments 143 and 143A had been withdrawn from the Marshalled List.
Amendments 144 and 145 not moved.
Amendment 145A had been withdrawn from the Marshalled List.
Amendments 146A to 148 had been withdrawn from the Marshalled List.
Amendments 149 and 149A had been withdrawn from the Marshalled List.
Amendments 150 to 153 not moved.
Amendment 153A had been withdrawn from the Marshalled List.
9 Mar 2011 : Column 1739
Amendments 154YA to 154ZB had been withdrawn from the Marshalled List.
Amendments 154A and 154B not moved.
Amendment 154C had been withdrawn from the Marshalled List.
Amendments 155 and 156 not moved.
Amendments 157 and 157A had been withdrawn from the Marshalled List.
Amendments 158 and 159 not moved.
Amendments 159ZA to 160 had been withdrawn from the Marshalled List.
Amendment 160B had been withdrawn from the Marshalled List.
Amendments 161A and 162 had been withdrawn from the Marshalled List.
Amendments 163A to 163E had been withdrawn from the Marshalled List.
Amendments 164A and 165 had been withdrawn from the Marshalled List.
Amendments 165AZA to 165B had been withdrawn from the Marshalled List.
Amendment 166ZA had been withdrawn from the Marshalled List.
Clause 12 : Procedure for orders under section 11
Debate on whether Clause 12 should stand part of the Bill.
Viscount Eccles: This clause covers the procedure for orders made under Clause 11, so I imagine that it must go. It is about orders made under Clause 11(1). If Clause 11 has gone, Clause 12 must go, too.
Lord Taylor of Holbeach: Having just been speaking, it was quite difficult to get order into my papers, but I am there now.
9 Mar 2011 : Column 1740
Clause 13 : Powers relating to environmental bodies
Amendments 166A and 166B not moved.
166BZA: After Clause 15, insert the following new Clause-
(1) An eligible person to whom functions are transferred by an order made under section 1 or 5 shall be subject in relation to the exercise of those functions to any Welsh language requirements applicable to the body or office from which functions are transferred.
(2) A new or existing body, office or eligible person to which or to whom functions are transferred by an order made under section 2 shall be subject in relation to the exercise of those functions to any Welsh language requirements applicable to the body or office from which functions are transferred.
(3) A new body, the Welsh Ministers, the Environment Agency, the Forestry Commissioners, the Countryside Council for Wales ("CCW"), or any other person exercising public functions in relation to Wales, to whom any function is transferred by an order made under section 13 shall be subject in relation to the exercise of that function to any Welsh language requirements applicable to the CCW, the Environment Agency, the Forestry Commission, the Welsh Ministers or any person exercising any Welsh devolved function relating to the environment.
(4) A body specified in section 15(2) or section 15(3) which makes arrangements under section 15(1)(a) to exercise a function of another such body shall be subject in relation to the exercise of that function to any Welsh language requirements applicable to that other body.
(5) This section does not prevent the amendment of Welsh language requirements by a further language scheme, Welsh language scheme or standards.
"language scheme" means a language scheme prepared in accordance with section 5 of the Welsh Language Act 1993;
"standards" means standards specified by regulations made by the Ministers or the Welsh Ministers under section 26(1) of the Welsh Language (Wales) Measure 2010;
"Welsh language requirements" means requirements arising under any language scheme, Welsh language scheme or standards which is or are in force on the coming into force of any order or arrangements to which this section applies; and
"Welsh language scheme" means a Welsh language scheme adopted under section 21 of the Welsh Language Act 1993."
Lord Wigley: My Lords, in moving this amendment I shall speak also to Amendment 166BZB. I certainly shall not unduly detain the Committee at this late hour, and we touched on certain aspects relating to Welsh speakers in the context of S4C earlier today-it seems very much earlier by now. Ministers will be aware that public bodies in Wales have Welsh language responsibilities under the Welsh Language Act 1993. This is now in the process of being replaced by new legislation passed by the National Assembly for Wales last year. The question that arises in the context of the Public Bodies Bill is that of ensuring continuity, clarity, consistency and the safeguarding of Welsh language rights when bodies operating in Wales may be merged with other bodies which do not necessarily currently have either a statutory or possibly a voluntary language plan.
9 Mar 2011 : Column 1741
These new clauses address two aspects of this. Amendment 166BZA provides for the continuity of language requirement when functions transfer from one body to another under this Act. Amendment 166BZB places a responsibility on relevant Ministers, before making an order under this legislation in relation to a public body that provides services to the public in Wales, to undertake an assessment of the implications of change on the use of the Welsh language in the provision of those services. Consultation for such assessment could be done either by the Minister here or by Ministers of the Welsh Government, as might be appropriate.
I would therefore ask the Minister either to accept these new clauses, to consider before the Report stage how to deal with the issue, or to give me an assurance that somehow these matters have already been looked after in a way that neither I nor the Welsh Language Board, which helped me with these amendments, are aware of so far. I beg to move.
Baroness Royall of Blaisdon: My Lords, we support the amendments because they would safeguard and promote the Welsh language. They are fundamental to the protection of the Welsh language in Wales and to good governance there. We hope that the Minister will be able to take them away and consider them before Report.
Baroness Rawlings: My Lords, we return to Wales. At this late hour, I am sure that noble Lords will appreciate my being brief, but this does not imply that we do not take the two amendments seriously.
The Government sympathise with the desire of the noble Lord, Lord Wigley, to make certain that support for the Welsh language, which is undertaken by many bodies providing public services in Wales, is not lost when roles are transferred from one person to another. This is not our desire and we are committed to making certain that this work is not undermined. However, where we differ with the noble Lord is on whether the amendments represent the best means of achieving this aim.
I shall first consider the noble Lord's Amendment 166BZB, on Welsh language assessments. I understand that there are 18 bodies whose roles could be transferred under the Bill which currently have Welsh language schemes and services. If the roles of those bodies are transferred elsewhere, the Government will consider the options for maintaining these services. Ministers will conduct impact assessments when proposing to make orders under the Bill. The Bill will require them to consult a wide range of interested parties.
I turn to Amendment 166BZA, on the application of Welsh language requirements. Welsh Ministers already have the power to bring bodies within the scope of the Welsh language legislation. The precise duties which are imposed are then a matter for negotiation with the Welsh Language Board. In the Government's view, these powers provide a more appropriate way of addressing this issue than the noble Lord's amendment. Indeed, the amendment could even reduce Welsh language provision. We consider it more appropriate to assess what requirements are needed in the context of each specific transfer, using the powers available in Welsh language legislation and in the Bill.
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I thank the noble Lord for bringing up this matter. Consultation is going on. I hope, therefore, that he will not wish to press his amendments.
Lord Wigley: I am very grateful for that response. On the second of the two proposed new clauses, that an assurance has been given that assessments of the impact of any changes on the Welsh language will be possible in many ways meets the point that I make in that clause.
On the first of the proposed new clauses, the Minister's comments with regard to the powers of Ministers in the National Assembly for Wales reassure me that those powers can be used fully to ensure that there is no loss of Welsh language requirements. That was my interpretation of what the Minister said. If there are any aspects of the ongoing discussions to which she referred that bring out questions that have not been covered, perhaps there will be an opportunity to tie up those matters fully on Report. On the basis of the assurances that have been given tonight, I beg leave to withdraw the amendment.
Clause 17 : Powers relating to functions of Secretary of State
Amendments 166BA to 166EA not moved.
Clause 18 : Powers relating to Forestry Commissioners
Amendments 166EB to 166G not moved.
Amendments 167 and 168 had been withdrawn from the Marshalled List.
Amendments 168A to 168D not moved.
Amendments 169 to 174 had been withdrawn from the Marshalled List.
Amendments 174ZA and 174ZB not moved.
Amendments 174A and 174B not moved.
Amendment 175 had been retabled as Amendment 175ZA.
175ZA: Before Clause 20, insert the following new Clause-
"Restrictions on Ministerial powers
(1) The modification or transfer of a function by an order under the preceding provisions of this Act must not prevent it (to the extent that it continues to be exercisable) from being exercised independently of Ministers in any of the following cases.
(a) where the function is a judicial function (whether or not exercised by a court or tribunal);
9 Mar 2011 : Column 1743
(b) where the function's exercise involves enforcement activities in relation to obligations imposed on a Minister;
(c) where the function's exercise otherwise constitutes the exercise of oversight or scrutiny of the actions of a Minister.
(3) Provision made by an order under the preceding provisions of this Act must be proportionate to the reasons for the order.
(4) In this section "enforcement activities" means-
(a) the bringing of legal proceedings or the provision of assistance with the bringing of legal proceedings;
(b) the carrying out of an investigation with a view to bringing legal proceedings or to providing such assistance; or
(c) the taking of steps preparatory to any of those things."
Lord Lester of Herne Hill: I believe that Charles James Fox became known as the dinner bell because when he got up to speak everyone had dinner. This is the second time this week that the House has had the misfortune to hear me after midnight, so I hope that I do not become known as the nightcap as a result. However, it reminds me of the barrister who once asked an Irish judge for time and the judge replied, "Thou hast exhausted time and trespass now upon eternity".
This amendment is tabled in substitution for Amendment 175. It has support from all sides of the House. I am extremely grateful to the Bill team, the Government's senior legal advisers and my noble and learned friend Lord Mackay of Clashfern, who have enabled an amendment to be produced to give effect in clear terms to Amendment 175. I am also grateful to the noble Lord, Lord Pannick, who managed a successful revolt on the first day in Committee to obtain the House's approval of our paving amendment. I express thanks to the noble Lord, Lord Hunt of Kings Heath, and the Minister, without whom what is now proposed would not have come to pass before the Bill left the Committee. Three scrutiny committees have also played a vital role: the Constitution Committee, the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights, of which I am a member. Ministerial clearance of the amendment came too late to be able to advise those committees before the amendment was tabled yesterday late afternoon.
12.15 am
The amendment would place restrictions on the exercise of ministerial powers. The restrictions are amenable to judicial review. The amendment is therefore mainly concerned with accountability to the law rather than to Parliament. It differs from Amendment 175 in omitting reference to human rights. That is because the Human Rights Act requires this legislation, like any other, to be read and given effect if possible so as to be compatible with the convention rights. It is therefore unnecessary to make mention of human rights in the Bill.
The restrictions apply to the modification or transfer of a function by an order made under the Bill by ensuring that such a modification or transfer does not prevent the function from being exercised independently in any of the cases covered by subsection (2). The first case is where the function is a judicial one, whether or
9 Mar 2011 : Column 1744
The second case is where the functions involve enforcement activities in relation to obligations imposed on a Minister. Subsection (4) defines "enforcement activities" to mean,
- "the bringing of legal proceedings or the provision of assistance with the bringing of legal proceedings",
- "the carrying out of an investigation with a view to bringing legal proceedings or to providing such assistance",
To take again the example of the Equality and Human Rights Commission, if it were minded to investigate or to bring legal proceedings against a Minister, or to assist someone to do so, in relation to alleged unlawful discrimination by the Minister or his or her department, it would be unlawful for the Minister to make an order under the Bill that interferes with the commission's independence in exercising its statutory enforcement powers.
The third case is where the exercising of the function otherwise constitutes the exercise of oversight or scrutiny of the actions of a Minister, where again the order must not interfere with the independence of the statutory public watchdog-a body such as Ofcom.
In addition, provision made by the order must be proportionate to the reasons for the order. Those reasons will have been made public as part of the order-making process. The principle of proportionality is as English as shepherd's pie. The decision-taker must not use public powers excessively or use a sledgehammer to crack a nut. The means used to achieve a legitimate aim must be needed to achieve the aim. The powers conferred by the Bill must be exercised in accordance with the well known principles of administrative law-legality, rationality and fairness. The principle of proportionality is well known in human rights and EU law and is coming to be recognised as a general principle of public law. The Bill includes the principle expressly.
I should add that our courts recognise the importance of the separation of powers. They are well aware that it is not their function as unelected judges to take the place of the political branches of government. According to the circumstances, they recognise an area of discretionary judgment for Ministers and public officials. Yet Ministers' powers must be exercised according to law and this amendment adds the necessary criteria and safeguards. It is excellent for Ministers to accept that their powers must be limited in this way and that they are accountable to the courts as well as to Parliament for the way in which they exercise the powers delegated to them under the Bill. I beg to move.
9 Mar 2011 : Column 1745
Lord Mackay of Clashfern: I have been privileged to put my name to the amendment and of course I support it wholeheartedly. It makes clear the legal framework within which the ministerial powers under the Bill may be exercised. I thank my right honourable friend Francis Maude for seeing me on this matter and I assure the noble Baroness, Lady Royall, that the consultation right across Whitehall was necessary. That is perhaps one of the reasons why we were not quite as early with this as some of us might have liked. I thank members of the Bill team very much for the patience that they exhibited in listening to me preaching to them about this, in a manner to which your Lordships are accustomed.
Lord Hunt of Kings Heath: My Lords, I say to the noble Lord, Lord Lester, that if he continues to table amendments of this quality he will be very welcome to move them after midnight, day after day. I, too, thank him, as this is an important amendment. It provides considerable reassurance to noble Lords about how the Bill will operate when enacted. I am grateful to him; it goes right back to that first vote on day one in Committee, which seems a little time ago. I also thank the noble and learned Lord, Lord Mackay, for his great assistance, and the Bill team and the Minister. This is a very positive outcome.
Lord Norton of Louth: I add my thanks to the noble Lord, Lord Lester, and all those involved in generating the amendment. I have previously made the point that, in terms of parliamentary scrutiny, the work on the Bill has been an example of best practice. The amendment is a particularly fine example of that in terms of the consultation that has taken place to produce an amendment for which there is agreement throughout the House. It is an excellent addition to the Bill.
Lord Taylor of Holbeach: My Lords, I am delighted that the amendment has received such a welcome. As noble Lords will know, my name is on it, too. I have a note here that thanks an awful lot of people, quite correctly, including my noble friend Lord Lester of Herne Hill, for his persistence and commitment to get this right, and my noble and learned friend Lord Mackay of Clashfern, whose advice has been invaluable to us all. I am grateful for the support that the noble Lord, Lord Pannick, has also given to this and to noble Lords opposite for their support. We have all wanted to see the amendment included. My speaking note contains no mention at all of the people who probably had to work hardest of all on the amendment-the Bill team-in trying to get the wording right. I am grateful to the noble Lord, Lord Hunt, for mentioning that and I thank members of the team for their commitment to get this right.
As noble Lords have said, the amendment will, I hope, provide substantial reassurance to the Committee and the wider public that the Bill will be used to bring forward only necessary and proportionate reforms that will maintain the independence of those public functions that clearly need to operate at arm's length from government. I am delighted that it has been added to the Bill and I trust that it will secure the support of all sides of the House.
9 Mar 2011 : Column 1746
Clause 20 : Restriction on creation of functions
Clause 21 : Restriction on transfer and delegation of functions
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, it is with some delight and some relief that I move Amendment 175C and in doing so speak to Amendments 175D, 175E and 182. The relief for all those in the Committee at this stage is because this is the last substantive group in the entire stage.
Before I finish, I offer an apology to the noble Lord, Lord Wigley, in that I promised him that we would end with a Welsh amendment. I am afraid that we are not doing that-it was going to come earlier but it was not moved.
I informed the Committee last week that the Government had decided to remove the forestry clauses from the Bill, and this we have now done. This set of amendments would remove a series of references to the Forestry Commission from Clauses 23 and 24. It is a tidying up exercise. I beg to move.
Baroness Royall of Blaisdon: My Lords, I warmly welcome these amendments and the removal of the final references to the Forestry Commission. We have been told on numerous occasions that the campaign against the sale of our forests and woodlands was inflammatory and misguided, but the forestry clauses were, I believe, a testament to the fact that the Government wished to enable the sale of our woodlands and forests. The Minister responsible made that clear on a number of occasions. I am glad that the Bill is now being amended. I know that hundreds of people up and down the country will feel mightily relieved-the very people who welcomed the independent panel looking into the future of forestry. We look forward to their deliberations in due course.
Clause 23, as amended, agreed.
9 Mar 2011 : Column 1747
Clause 24 : Transfer schemes: procedure
Clause 24, as amended, agreed.
Clause 27 : Orders: supplementary
Amendments 176 to 177 not moved.
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