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Public Bodies Bill [HL]

My Lords, reticent as I am to depart from the conclusions of the Constitution Select Committee of your Lordships’ House, which first considered this Bill akin to Henry VIII powers, I respectfully suggest that at least the dissolution of the monasteries brought much needed finance to the Crown’s coffers, whereas this Bill fails lamentably to achieve even that. In all other respects, I concur with their conclusions. I have three points—first, on the lack of public and parliamentary scrutiny; secondly, on the potential move of functions from independent to political control, with the exclusion of any lay, consumer or user voice in decision-making; and, thirdly, to point to some examples of the dangers in the Bill, primarily in Schedule 7. First, this Bill gives legislative powers to Ministers, including powers to merge or abolish bodies, without the rigours of parliamentary scrutiny let alone public debate. It gives Secretaries of State powers to change organisations simply by secondary legislation. Parliament plays a vital role in safeguarding rights and freedoms, and it is parliamentary scrutiny that allows Bills to be amended and gives interested parties, the public and the press time to consider the implications of proposed laws. Many bodies in the Bill were the product of extensive parliamentary debate, as has been said, yet such parliamentary deliberation would be denied to proposals to abolish or to redesign such bodies. Clause 11 is a particularly pernicious clause, giving Ministers powers to add any of the 150 Schedule 7 bodies to the schedules permitting their abolition, merger or modification, simply by statutory instrument, as outlined by several noble Lords. The Bill effectively renders these bodies liable to abolition or restructuring at the behest of the Executive. The Bill fails to allow Parliament to consider the suitability of the Schedule 7 groups to be moved into a list of organisations which are then subject to such wide powers. As the Constitution Committee emphasised, many of those bodies, as has been said earlier, were created by primary legislation and therefore by the will of Parliament. It is entirely inappropriate for such bodies to be scrapped or fundamentally reformed at the imperative of a Minister without due regard to parliamentary process. Secondly, the Government have made it clear that they expect Ministers to take responsibility for what is done in the name of us all, and not leave it to unelected bodies. Yet there are many decisions taken on behalf of civil society which should not rest in the hands of elected politicians but be taken with a degree of detachment and independence, balancing competing and, often, individual interests for the good of the whole. Just as we would all flinch at the idea of electing our judges, so we should flinch at measures which potentially interfere with decisions on the rule of law, ethical decisions and other legal, personal and intimate social matters. The Government’s presumption is that any state activity should be undertaken by democratically accountable bodies, with a quango existing only if it meets one of the three tests already alluded to—including whether its activities require political impartiality. The Minister used ““impartiality”” in opening this debate. Yet the very purpose of most quangos is to take issues out of politics; thus, they do not come under direct ministerial control but operate at arm’s length from Ministers. That, surely, is their very strength. As your Lordships know, many of the affected bodies have a mandate to provide not just impartial but independent oversight of vital areas of public sector activity. The wide-ranging powers in the Bill may lead to the abolition of organisations and offices which play a vital role in holding public bodies or central government to account, as suggested by the noble Baroness, Lady Meacher, and other speakers. The Bill makes no provision for safeguarding the continued independence of such bodies, as emphasised by my noble friend Lady Whitaker. There is a big difference between independence and impartiality: it is the independence to be able to say, without fear or favour, what decision you have reached. Thirdly, therefore, I turn briefly to some examples of the bodies over which the axe will not fall but, perhaps even worse, potentially hover for years. There is the Homes and Communities Agency. As the noble Baroness, Lady Eaton, of the Local Government Association said elsewhere, the acid test will be whether Ministers allow decisions to be taken at the front line by locally elected people who know their neighbourhoods or simply replace unaccountable quangos with unelected civil servants in Whitehall. There is Ofsted, a non-ministerial government department reporting directly to Parliament. That constitutional basis protects the role of the chief inspector, whom neither the board nor the Secretary of State can remove, thus ensuring that her reports and actions are protected from accusations of undue influence. Ofsted’s remit includes advising the Secretary of State, such advice being provided without fear or favour exactly because of the organisation’s constitutional position. Given that Ofsted’s actions can have serious consequences, its protection from allegations of undue influence is vital. Ofsted inspection has a key role for schools operating with greater autonomy, where independent inspection becomes central to enabling services to be accountable. I turn to NEST, which is a pension scheme established under the Pensions Act 2008. Its trustee board—I declare a recent interest, as until last month I was a member of it—has a fiduciary duty to its pension members, whose money it holds on trust, not to the Government, save in regard to any loan from government. Yet the Bill would enable the Government, with two clicks, to abolish, merge or alter this pension scheme without so much as new legislation, consultation or proper parliamentary scrutiny. Its resources belong to its members, not the state, yet the members would have no say in any such move. The noble and learned Lord, Lord Woolf, mentioned the Legal Services Board; here I declare another interest as chair of the Legal Services Consumer Panel, which that board funds. The Legal Services Board is, of course, funded not by the Government but by lawyers. The board’s creation in the Legal Services Act 2007 was the product of extensive parliamentary debate. Your Lordships will recall the importance given to the independence of the Legal Services Board—independent from government—in the passage of the Bill. That was particularly emphasised in the Joint Committee examining the Bill that was chaired by the noble Lord, Lord Hunt of Wirral. The independence of the regulator overseeing barristers and other lawyers is key to their reputation, both here and abroad, for independence before the courts, to the rule of law and to its separation from government. Yet with a couple of statutory instruments this robust, independent board could be swept away. There are many worrying powers in the Bill that fly in the face of normal lawmaking. ““Think again, Government””, is the best advice I can proffer.