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Public Bodies Bill [HL]

Perhaps I can start by reassuring the noble Lord that we will be able to debate both the Human Fertilisation and Embryology Authority and the Human Tissue Authority later this evening. I thank noble Lords for their contributions to the debate, and the noble Lord, Lord Hunt, for probing several issues through the procedure of whether the clause should stand part. It gives me an opportunity to address those issues, for which I am very grateful. This group of amendments deals with powers in the Bill to transfer functions and the question of public accountability, particularly in relation to data and freedom of information. I accept that it is important to provide reassurance on these issues and thank noble Lords for the opportunity to do so through these amendments. Clause 5 gives Ministers the power to make provision, by order, to transfer or modify the functions of any body or office listed in Schedule 5. This includes the conferral of new functions, the abolition of functions or changes to the conditions or purpose under which functions are exercised. When we talked about Clauses 3 and 4, I gave examples of such changes, so perhaps I could give the example of the body that we will debate next. The Government intend to use the Bill to transfer the functions of the British Waterways Board to a new mutual body, removing powers from Ministers and giving the users of waterways a far stronger voice in the management and development of the system. The Government envisage that the powers contained in Clause 5 will be used to ensure that the right functions are carried out by the right body, creating a more efficient and effective landscape of government. The noble Lord, Lord Hunt, asked what post-legislative scrutiny—if I may use that phrase—of these changes might be carried out. All public bodies will continue to be subject to ongoing regular review. These reviews will be published. I reassure the noble Lord that copies of the reviews will be placed in the Library of the House. Ministers will be accountable to Parliament for government action following reviews and, indeed, for how public bodies conduct their public duties. The noble Lord will recall that in Monday’s Committee session I set out the safeguards that would apply to orders made under Clauses 3 and 4, and the important limitation on the scope of these powers which has resulted from the removal of Schedule 7. I assure him that the safeguards in the Bill will apply to orders made under Clause 5. I hope that this provides the reassurance that he seeks. Amendment 118—we will have the opportunity to discuss this at length—provides for consultation and sets out a procedure for enhanced scrutiny of statutory instruments. Perhaps most importantly of all, it provides that a Minister may lay before Parliament an explanatory document in which he is obliged to explain the reasoning behind the changes that he is seeking to effect and to explain why they satisfy certain conditions in the Bill. Transparency is being built into the process to enable proper scrutiny of the Government’s proposals. Amendment 102 is concerned with accountability mechanisms where functions are transferred following an order made under the Bill. The Government’s public bodies programme is underpinned by the notion that Ministers should be accountable for public functions. For this reason the Government intend to abolish 192 public bodies and in many cases transfer their functions back into sponsor departments. As noble Lords will be aware, government departments and agencies are subject to regular audit through the National Audit Office and are already subject to the requirements of Amendment 102. This Government have also committed to increased transparency in their actions, as evidenced by the publication of detailed Treasury data on public expenditure and by the new departmental structural reform plans. Where public bodies have been retained, and where functions have been transferred from them to other bodies, I can assure the House that they will continue to be subject to the existing requirements on accounting and reporting as well as data protection and freedom of information law. Non-departmental public bodies are required to have in place robust governance and accountability arrangements, and both the Cabinet Office and the Treasury provide detailed guidance on the matter. I reassure the House that where bodies already subject to the FOI Act are merged to form new bodies established by, and at least partly constituted by, appointments made by government, steps will be taken to ensure that they fall within its scope. Where bodies’ functions are transferred to a party already subject to the Act, this will not change. The Government are committed to extending the scope of the Freedom of Information Act to provide greater transparency and have announced their intention to extend it to a range of bodies carrying out functions of a public nature. However, I should point out that amendments to the Freedom of Information (Scotland) Act may be made only by the Scottish Parliament or with the consent of Scottish Ministers. There may be instances where public functions are transferred to an eligible person not subject to an FOI Act, such as a company limited by guarantee or community interest company. In such cases, it will be the responsibility of Ministers to make sure the appropriate safeguards are in place to ensure that the body is properly accountable for its delivery of public functions, and, indeed, the Minister would be accountable for those functions. All organisations processing personal data are subject to the Data Protection Act 1998. The use of powers under the Bill would not alter this requirement. As regards Amendments 175A and 175B, in the name of the noble Lord, Lord Knight of Weymouth—I am very grateful to him for speaking to these important amendments—I emphasise that the Public Bodies Bill is primarily about the rationalisation of existing public functions, not the creation of new bodies. I appreciate the spirit of the noble Lord’s amendments and agree that a power to share personal data should be used with caution. In limited circumstances there might be legitimate reasons for Ministers to wish to make an explicit power to share personal data in the context of this Bill. To give an example that relates to a public function, Her Majesty’s Courts Service has a statutory data-sharing arrangement with the Driver and Vehicle Licensing Agency to facilitate the sharing of personal data where individuals convicted of a motoring offence opt for driver training instead of disqualification, and that information is transferred from one body to another. Such powers, which of course would be subject to Parliament’s approval, and to the considerations in Clause 8 regarding individual freedoms, are sometimes necessary and can give public bodies and individuals a helpful degree of certainty about how personal data may be shared. Occasionally, bodies also need to be able to share data in one-off situations. In such circumstances there is normally no explicit provision. I trust the noble Lord will understand that the Government would not be able to accept an amendment that might call into question the ability of bodies to co-operate on important issues relating to security or criminality, for example. Clause 7 gives Ministers the power to make consequential, supplementary, incidental or transitional changes to public bodies as part of an order under Clauses 1 to 6. I should point out that the Government have no intention whatever of forcing arrangements on voluntary or charitable bodies, which may be partners in these transfers of functions. I think I made that clear in the debate we had the other evening. These are not wide-ranging powers; they exist simply to make the headline legislative reforms—your Lordships' House have debated those reforms and will do so again—work in practice. For example, the statutory merger of the Pensions Ombudsman and the Ombudsman for the Board of the Pension Protection Fund simply formalises the current arrangements that exist between the two bodies. However, to make this merger work it is essential that existing statutory references to the two bodies are amended to reflect the name of the new merged body. By removing Clause 7, and with it the ability to make this sort of consequential and supplementary provision, the reforms taken forward by orders under Clauses 1 to 6 would be left incomplete. In effect, the legislation would be rendered unusable. In the context of the significant protections and limitations which apply to these powers, I do not believe that the removal of this clause from the Bill, or the addition of the amendments discussed in this group, would be—if I might use the word—a proportionate move. I think that we will come across ““proportionate”” in later discussions. However, I might use this opportunity to anticipate the debates on Clause 8, because I have been invited to do so by the noble Baroness, Lady Andrews, my noble and learned friend Lord Mayhew and my noble friend Lady Thomas of Winchester, who is the chairman of the Delegated Powers Committee. I said in my letter—I thank my noble and learned friend Lord Mayhew for mentioning its penultimate paragraph—that we are considering ways in which we may use Clause 8 to define the purposes more tightly in these clauses. I hope that noble Lords will understand that this is work in progress and I would not want to prejudice that by saying anything further at the moment. However, I have used until now my best endeavours to meet the opinions of this Committee, and I hope that I can continue to do that. I hope that I have been able to provide the assurances that noble Lords seek and I ask that Clause 5 stand part and that the subsequent amendments in the group are not moved.