---

Public Bodies Bill [HL]

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. 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 not exercised by a court or tribunal. It is designed to enhance judicial independence and the rule of law. It applies to public bodies which are not courts or tribunals but which are required to act judicially by being independent and impartial. For example, the Equality and Human Rights Commission must act judicially when deciding whether it finds someone to have acted unlawfully in breach of the non-discrimination provisions of the Equality Act 2010. 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””," or, "““the carrying out of an investigation with a view to bringing legal proceedings or to providing such assistance””," or, "““the taking of steps preparatory to any of those things””." 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.