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Public Bodies Bill [HL]

My Lords, I, too, support this amendment, and I am very glad to follow the noble Lord, Lord Newton, with all his lengthy experience of how the council actually works and how much good it has done over the past 10 years and, indeed, for far longer. I add something only because I was much involved when the Tribunals, Courts and Enforcement Bill was going through the House in 2007. I thought it might be of interest to the Committee to look again at what Sir Andrew Leggatt said in 2001 about the old Council on Tribunals, since it was on his report that the 2007 Act was based. It does not seem to have occurred to Sir Andrew Leggatt that the council would cease to be of any utility once the new system had come into operation—quite the contrary. Briefly, he said in his overview: "““The Council—" that is, this council— "““should act as the hub of the wheel that is the Tribunals System. Its functions should include taking evidence from user groups, from the Tribunals Service, from the departments, and from the Judicial Studies Board about how well the system is working. This oversight””—" note the word ““oversight””— "““should be in addition to, not instead of, the direct relationship that will exist between the participants in the tribunal process””." A little later he says: "““Departments””—" that now would include the Ministry of Justice— "““should be under a duty to consult the Council on primary (in addition to secondary) legislation, and it should be given specific … authority to comment on it””." Those were Sir Andrew’s views, and they were, of course, adopted by Parliament in the 2007 Act. Section 44 sets up the new council, and it is included under the following chapter heading: "““Oversight””—" again, note the word— "““of Administrative Justice System, Tribunals and Inquiries””." In the schedule, its functions are described as follows: "““The Council is to … keep the administrative justice system under review””." The schedule goes on to say that, "““‘the administrative justice system’ means the overall system by which decisions of an administrative or executive nature are made in relation to particular persons””." It really could not be clearer than that. As the Committee will know, under the new regime the council’s remit is far wider than it was under the old system. The administrative court, again as the Committee will know, is the heart of the modern civil justice system. It is there that the crucial decisions are made that affect the rights of individual citizens. The reason is, of course, that it is in the administrative court that the individual citizen can challenge Ministers’ decisions by way of judicial review. The court, as I know, is concerned day in and day out with ministerial powers—for example, under the Terrorism Act, in immigration cases, or in the score of other ways in which ministerial decisions affect individuals. It follows that, of all the bodies named in Schedule 1, the council is the one that is most directly involved in, "““establishing facts in relation to, or oversight or scrutiny of, Ministers’ actions””." Those words appear in paragraph (b) of Amendment 108, which the Minister put before the Committee. To give an example, we all remember the time, some years ago now, when Ministers attempted to exclude judicial review from immigration cases. The attempt did not succeed. Next time it will not be so obvious, but the danger is still there. Immigration is surely an area which the council should continue to keep under review as part of the overall administrative justice system. It is surely an area in which it can still offer impartial advice to the Government. It is no good saying that the work of the council can be done just as well by civil servants in the Ministry of Justice; it cannot. Of course civil servants are impartial; no one questions that. Nevertheless, they lack the ““professional or specialist expertise””— again, I quote the Minister’s own amendment—that the council can offer. This council happens to fall within both paragraph (a) and paragraph (b) of the Minister’s own amendment, which should in itself be enough to take this council right outside Schedule 1. The trouble is that that is not enough under the Bill. The Minister has only to consider paragraphs (a) and (b) of his own amendment, which no doubt he would do anyway, so that the great safeguard that is said to be offered by the amendment is, in my submission, very largely illusory. It may be said that all these matters can be put right at the end of the day when the draft order is laid before the House. Amendment 118 is no better than Amendment 108. The Minister need only ““have regard”” to recommendations made at that stage. The noble Lord, Lord Taylor, made it very clear last week that he was totally opposed to anything in the nature of a veto being imposed at that stage. So what can we do? Our only chance, as I understand it—and as I think the Minister confirmed—is to remove the council from Schedule 1 by voting to do so now. That brings me to my last point. It will take a long time to go through all the bodies in Schedule 1, let alone those in Schedules 2 to 7, if we take them one by one on the Floor of the House in Committee. Is there not, even now, something to be said, before we get completely bogged down in the process, for deferring the rest of Committee and committing the Bill to a Select Committee, as we can do and as the noble Lord, Lord Hunt, proposed at the end of Second Reading? This seemed an extremely sensible suggestion. It worked in the case of the Constitutional Reform Act 2005, as everyone accepts, and it would work again here. This is just the sort of Bill for which the detailed consideration that is possible in a Select Committee is most appropriate. Once we are in Select Committee—I know how it works from past experience—one is amazed by how quickly things go. The Minister would soon see that certain bodies in Schedule 1 clearly must be excluded. The rest of us would equally soon see that certain bodies in the schedule clearly ought to be abolished. The whole thing would be much simpler and quicker. It would take perhaps three or four months at most, as it did last time, but in the end a great deal of time would be saved because we would not have to go through each of these bodies and take a vote, which is the only course open to us now. I very much hope that the noble Lord, who has been so reasonable throughout, will consider again the possibility of opting for a Select Committee. I know that there was a vote against this, but it would still be possible—and, I suggest, very desirable—to reverse that vote.