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Public Bodies Bill [HL]

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, "““fairness, openness, transparency and justice””," 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 the principle that Ministers should be required to consult on their proposals to reform public bodies before using these powers. The Government also accept that in some cases it is completely appropriate to consult the public in relation to such proposals. For example, I can confirm to the Committee that the Department for Business, Innovation and Skills intends to consult this year on its proposed changes to competition bodies. We discussed that earlier this evening. It will be a public consultation. The Government Equalities Office will soon publish its consultation document on reform of the Equality and Human Rights Commission. Later this year, Defra will issue a public consultation on its plans to replace British Waterways with a charitable body. 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, "““to be representative of interests substantially affected by the proposal””." 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 procedure that should apply to orders made under this Bill. In responding to these amendments, I should clarify for your Lordships’ House that we have substituted government Amendment 118 with a new version that makes it explicit that the enhanced procedure can be activated by a recommendation of a committee of either House. This clarification responds to paragraph 24(a) of the sixth report of the Delegated Powers Committee—that is, the committee’s second report on this Bill. I am happy to clarify the Government’s intentions in response. 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, "““may lay … a draft order, and … an explanatory document””," 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 ability to act to implement their programme. It is for this reason that I cannot accept Amendment 118B or Amendment 117.