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House of Lords

Tuesday, 23 November 2010.

2.30 pm

Prayers-read by the Lord Bishop of Lincoln.

Health: Hydrotherapy

Question

2.36 pm

Asked By Baroness Thomas of Winchester

Baroness Northover: The health technology assessment programme has published research on the effectiveness of hydrotherapy for lower-limb osteoarthritis and for juvenile idiopathic arthritis.

Baroness Thomas of Winchester: I thank my noble friend for that Answer, which seemed rather brief and limited in its scope. I would like the Minister's advice about how those concerned with this question could persuade the National Health Service of the benefits of ongoing hydrotherapy for people with progressive conditions who will never fulfil the criterion of a positive outcome that one might have with a broken leg. I am thinking in particular of boys with Duchenne muscular dystrophy. The sad truth is that hydrotherapy in this country is better known as a treatment for horses and dogs than for people.

Baroness Northover: Surely not. My noble friend has done a great deal herself to promote the potential psychological and physical benefits of hydrotherapy, and I am sure that she will continue to do so. Following her conversations with me over the past week or so, and at her request, I have sought for her and for other noble Lords with an interest in this area a meeting with the relevant Minister in the Department of Health, my honourable friend Anne Milton. That has been agreed and therefore I hope that the noble Baroness and others will be able to take this further forward.

Lord Walton of Detchant: My Lords, is the noble Baroness aware that the All-Party Parliamentary Group on Muscular Dystrophy last year carried out a major survey of facilities across the UK for patients with Duchenne muscular dystrophy-to which the noble Baroness referred-and discovered that boys with that very serious progressive disease who live in places like Newcastle, Oxford, London around Queen Square, and Oswestry, survive into their 30s and sometimes even their 40s, whereas in other parts of the UK they still die in their teens? There is evidence that in the rehabilitation of these patients, hydrotherapy plays an extremely important role. What efforts are the Government making to make certain that this form of treatment, which is invaluable, becomes more widely available across the United Kingdom?



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Baroness Northover: My Lords, I am well aware of the report in the name of the noble Lord, Lord Walton. It is a most impressive report that had an effect on the then Government. We are doing our best to take that forward. One thing that struck me when I looked at the research in this area was its paucity. The Department of Health can do so much, but clinicians can do a lot more. It is worth bearing in mind that the use of hydrotherapy is a matter for clinical judgment. By and large, clinicians and patients must take this forward. Therefore, it is very important that clinicians undertake research with larger groups of patients than has been the case heretofore. Anything that the noble Lord can do to promote that would be extremely welcome.

Baroness Thornton: My Lords, I say to the Minister that this is also a matter of resources. Is she aware of the potential benefits of hydrotherapy for people with long-term conditions, such as stroke, Parkinson's disease and multiple sclerosis? How will she ensure that hydrotherapy treatment is both continued and expanded for key groups when funding is transferred from PCTs to GPs, and how will the Government support GPs in the effective commissioning of these expensive rehabilitation and reablement treatments for people with these long-term and progressive conditions?

Baroness Northover: As the noble Baroness will recognise, the provision of this treatment up and down the country has been an ongoing problem. It is something that the previous Government tried to tackle, and the emphasis then, as now, was very much on local decision-making. However, the national commissioning board will be looking at the provision of specialised services and will try to ensure that, where there is this kind of need for a small group of patients, provision is catered for. At the moment, as the noble Baroness knows, the Department of Health is assessing the results of the consultation on the White Paper, which has just closed, and proposals on specialist commissioning will be brought forward. However, it is extremely important to recognise that this is not a new problem and it is not an outcome of the proposed changes.

Lord Campbell of Alloway: My Lords, perhaps I may ask a very simple question. Are no steps to be taken until we have a report from various quarters? What is the position? We have heard a lot but I cannot understand what is to be done.

Baroness Northover: I apologise if I have not been clear, and I shall try to be clearer. PCTs currently commission locally for hydrotherapy. Physiotherapists decide whether their patients need hydrotherapy and, if they or clinicians recommend that that is what the patients need-and in many cases it is not advised because there could be infection, balance or other problems, so it is not ideal for all patients-the PCT commissions the treatment locally. That will continue to be the case, as it will under GP consortia but with the umbrella protection of ensuring with the commissioning board that specialist care is not squeezed out by an emphasis on what the majority need locally.



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Baroness Finlay of Llandaff: My Lords, as the Government are establishing an outcomes framework for the delivery of treatments, are they looking specifically to have a very flexible and alternative model for those with long-term conditions which takes account of the benefits in terms of both quality of life and welfare, and which also takes account of the avoidance of problems such as the earlier onset of contractures in those with neuromuscular disorders or neurological damage?

Baroness Northover: I thank the noble Baroness for that question as it enables me to point out, as she will know, that one element of the proposed NHS outcomes framework is enhancing the quality of life of people with long-term conditions. That is relevant here-it is not just a matter of seeing whether someone's leg mends after it has been broken. I heard from my noble friend about the experience of the noble Baroness, Lady Campbell, and about the psychological benefit to her of having hydrotherapy. It is not simply a matter of physical benefit; there is also a psychological benefit.

Sport: Rugby League World Cup 2013

Question

2.44 pm

Asked By Lord Hoyle

Lord Hoyle: My Lords, I seek permission to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as president of Warrington Wolves Rugby League Club, winners of the Rugby League Cup at Wembley in 2009 and 2010.

Baroness Garden of Frognal: My Lords, the Government are committed to staging the greatest sporting events in the world and the Rugby League World Cup is among them. The coalition agreement makes clear our commitment to the success of the Rugby League World Cup and we are working with the Rugby Football League to that end. Our proposals include financial underwriting comparable to that offered to the Rugby Football Union for its 2015 World Cup.

Lord Hoyle: My Lords, I thank the Minister for that constructive reply. Will the Government underwrite the Rugby League World Cup to the extent that it was underwritten by the regional development agencies under the previous Government; namely, to the sum of at least £1.5 million?

Baroness Garden of Frognal: My Lords, I pay tribute to the noble Lord for his expertise and his longstanding support for Rugby League, as he has already demonstrated to the House. He refers to a letter from my honourable friend Hugh Robertson. In fact, the Northwest Regional Development Agency contracted with the RFL to provide £1 million to support staging the event in exchange for a specified number of games taking place in its region. Due to the abolition of the RDAs, that position is under review. The RDAs have not yet

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operated their break clause, so the expectation is that at least £500,000 will be honoured, and potentially the full amount. That will be in addition to the Government's offer of support. In the interests of brevity, I shall not go into the details of that at this stage.

Lord Prescott: My Lords, what is the thinking that justifies 40 times the amount of money for a Rugby Union Cup Final as opposed to a Rugby League Cup Final and World Cup Final? The RDAs were offering £1 million, but the Government are now abolishing them. Is not the reality that the noble Baroness belongs to a department that does not have an elected northern member in it, so reflecting the north-south issue, with, once again, disadvantage to the north?

Baroness Garden of Frognal: My Lords, I thank the noble Lord. As the daughter of a Lancastrian and a Durham mother, I may possibly stand for the north, but that is perhaps a little far-fetched. The noble Lord mentions the difference between the two fees. The tournament fee for the Rugby Union World Cup was part of the commitment demanded in the bidding process, but there was no such tournament fee for the Rugby League World Cup. In the interest of fair treatment, the Government have said that the underwriting should be pro-rata, with a provision of up to £625,000 should the event not make the projected £2 million profit. That has been agreed with the Treasury and needs to be formally agreed by Parliament. The Rugby League Board is still considering the proposals made by the Government and we await its response, probably early in December.

Lord Mawhinney: My Lords, as regards world sporting events, I declare an interest as deputy chairman of England's 28-team World Cup bid. I thank my noble friend and, through her, the coalition Government, for their willingness to support the guarantees which FIFA required and to which, in all fairness, the previous Government also signed up, to enable our bid to be made. I also thank the Prime Minister for the very active and personal support which he is giving to the bid, the decision on which will be made next week.

Baroness Garden of Frognal: My Lords, I thank my noble friend for that very constructive and helpful question. I assure him that the Government remain fully behind England's 2018 bid and will continue to support the bid in any way possible in the build up to FIFA's decision on 2 December.

Baroness Billingham: My Lords, perhaps I may press the Minister further on this matter. We have listened with great interest to her thoughtful replies. Is there not a moral obligation here? We have a situation in which the Rugby League organised sponsorship of £1 million from the RDA and then the RDA is swept away and it is left without support. In those circumstances, I should have thought that the Government, as perpetrator of the sweeping-away, would immediately step in and say, "We will fully underwrite it"-not half of it. I think the Minister must take this back to the DCMS and press much more firmly for fair treatment for a very important sport.



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Baroness Garden of Frognal: My Lords, at the risk of incurring the wrath of noble Lords opposite, I repeat that we are not in such pleasant financial circumstances that we can honour all sorts of commitments across the board. The noble Baroness comes up again with the parity of treatment. We recognise that Rugby League and Rugby Union are two different codes of the sport. We are aware that they have some common interests and indeed they have swapped players, although not always highly successfully. The coalition agreement explicitly commits to parity to ensure that the 2013 Rugby League World Cup and the 2015 Rugby Union World Cup are successful.

Lord Addington: My Lords, does my noble friend agree that to say that it is a north-south divide is flying in the face of the work of the Rugby League, which has spent god knows how many years trying to penetrate the south to get a participation base? Should it not be encouraged to continue doing so and should not people be encouraged to get out of their laagers?

Baroness Garden of Frognal: I thank my noble friend for that-in rather more robust language than I would have used. Indeed, Rugby League has a tremendous lot to commend it as a sport. It would be ideal if it could penetrate the south of the country as much as the north. It is a parallel sport, if you like, to Rugby Union, and both codes of the sport should be equally supported and have equal merit.

Lord Brooke of Alverthorpe: Would the Minister confirm-I welcome this-that £25 million of underwriting is going into Rugby Union but that for Rugby League the amount is only £625,000, which is substantially less than the amount of money that it sought from the RDAs to put in its bid for the 2013 Rugby League World Cup? Will she say why there is such a wide variation? She used the phrase "parity of treatment". Will she define what the parity of treatment is because, prima facie, it does not look like fair treatment, especially given that the £25 million underwriting for Rugby Union has not changed, yet that for Rugby League has?

Baroness Garden of Frognal: The noble Lord will be aware that the systems for putting in bids for Rugby Union and Rugby League are different and the government response is in proportion to the requirements for both those bids.

Lord Glentoran: Does my noble friend agree that sport across the kingdom and school sport are being seriously cut? Why are these large sums being put forward for very rich and popular sports?

Baroness Garden of Frognal: My Lords, school sport funding is a debate for a different occasion. However, I assure noble Lords that this Government are fully committed to sport in schools.

Noble Lords: No!

Baroness Garden of Frognal: I assure noble Lords that we are, and when the detail of the proposals that are being put forward for sport in schools comes out, I hope noble Lords will agree that there will be all sorts of opportunities for young people across the country to participate in competitive sport.



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Immigration: Home Office Procedures

Question

2.52 pm

Asked By Baroness Gardner of Parkes

The Minister of State, Home Office (Baroness Neville-Jones): My Lords, online forms containing guidance have already been introduced on the UK Border Agency website to make things easier for applicants. Next year, tier 4 student applicants, which comprise the largest category, will be able to create their own customer account to assist them to complete their online application, pay for it and view its progress. All immigration application forms will be available online by 2015, and the aim is to simplify and clarify application procedures in all categories.

Baroness Gardner of Parkes: I thank the Minister for that reply. My question relates to long-term residency in the UK, and I declare an interest in that I have had the right of abode for many years and have been here for 50 years. Why were new regulations introduced in 2006 requiring everyone to resubmit documents? In 1985 I had a letter saying that no repeat would ever be required, but in 2009 I was told that I must resubmit all originals. I am getting the same complaint from many people. Will the Minister also comment on the Canadian lady who, just this week, after 60 years in the UK, was stopped at the airport as an illegal immigrant?

Baroness Neville-Jones: My Lords, the aim of the 2006 regulations, which were brought into effect by our predecessors, appears to have been to cut down on fraudulent claims to the right of abode by ensuring that the validity of the certificate of entitlement which applicants have to have was limited to the lifetime of the passport to which it was attached. Requiring new certificates of entitlement enables a further check on the genuineness of the eligibility to take place. As regards the Canadian lady, on the basis of the press reports-and I have no other information-it would appear that this lady, who was allowed into the country, will be able to claim her right of citizenship through descent. I think that she will have no problem in doing that, and of course she will not have to pay.

Lord Avebury: My Lords, will my noble friend put copies of all the paperwork in the case of Anwar and Adjo in the Library, including the judgment of Lord Justice Sedley in which he said that "a shameful decision" had been made-the effective criminalising and enforced removal of an innocent person without either worthwhile evidence or the opportunity to answer? Lord Justice Sedley went on to request that the misuse of the powers of one of the great offices of state should be drawn to the attention of the Home Secretary. Has that been done, and what remedies is the Home Secretary providing for this misuse of powers?



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Baroness Neville-Jones: My Lords, I am afraid that I am not familiar with this case, which obviously the noble Lord is interested in, in detail. I will write to him.

Lord Pearson of Rannoch: My Lords, have the new Government amended the guidelines which the last Government gave to immigration officers instructing them to allow the second, third and fourth wives of Muslim men, together with their attendant children, to live in this country,

Baroness Neville-Jones: My Lords, I am afraid that I am not familiar with that provision. I understand why the noble Lord is asking the question; I fear that I will have to look into the matter and perhaps write to him.

Lord Hylton: My Lords, as regards asylum applicants-which is a part of this larger question-is the noble Baroness aware that the UK borders authority operates a dispersal programme and system? Will she encourage it by all possible means also to disperse its centralised Croydon office to the regions so that applicants do not have to travel huge distances at great inconvenience for their principal interviews?

Baroness Neville-Jones: My Lords, is this in relation to passport applications? Is that the question the noble Lord is asking?

Lord Hylton: No. It is to do with asylum applications.

Baroness Neville-Jones: My Lords, I will have to see what can be done. This seems rather distant from the original Question.

Lord Hunt of Kings Heath: My Lords, can the noble Baroness answer this one? She will be aware that, a few months ago, the previous Government published a draft Bill on simplifying the immigration law. Contained within it was a proposal on information, to bring together piecemeal powers to require and supply information through specific gateways. Will the Government be taking that forward?

Baroness Neville-Jones: My Lords, I am afraid that I do not know. You will have to wait and see.

Lord Phillips of Sudbury: My Lords, I express an interest as a lawyer whose firm does a lot of immigration and asylum work, and I preface my question by saying that what I have to ask has no effect on the numbers coming in. As my noble friend the Minister will know, the previous Government tried their best to simplify the procedure for those applying for immigration and asylum and to move to a points-based system. The situation now, however, is that the questionnaire that applicants have to fill in is 60 pages of technical, concentrated stuff. If they get any aspect of it wrong, they fail. Legal aid is being withdrawn for asylum. Will my noble friend at least review the questionnaire process in order to simplify and clarify it?

Baroness Neville-Jones: My Lords, we should try to make these procedures as comprehensible, simple and clear as we can, consistent with having to acquire the correct information. We will see what we can do.



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Abattoirs: CCTV

Question

2.59 pm

Asked By Lord Greaves

The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley): My Lords, we recognise that CCTV can play a role in helping slaughterhouse operators monitor welfare and we welcome recent industry-led initiatives to install CCTV on a voluntary basis. We have no powers to require CCTV installation in abattoirs.

Lord Greaves: My Lords, I thank the noble Lord for that half-helpful Answer. Has he seen the appalling CCTV images which have been put on to the internet by the charity Animal Aid, and does he agree with Tim Smith, chief executive of the Food Standards Agency, that they are,

He went on to make it clear that what is important is that something should be done about it. Will the Minister join me in congratulating Morrisons on agreeing to install CCTV in the three abattoirs it owns and controls, including the Woodhead Bros abattoir, which is a major employer in the Lancashire town of Colne where I live.

Lord Henley: My Lords, obviously I offer my congratulations to Morrisons because we would encourage all owners of abattoirs to install CCTV if that is necessary. However, I stress to my noble friend that although I have not seen the film, we do not condone animal cruelty of any sort. We will ensure that all allegations of the ill treatment of animals are fully investigated and, where necessary, prosecutions are made.

Lord Pearson of Rannoch: My Lords, if that is so, should not those of us of the Christian culture, with our attendant laws for animal welfare, understand the practice of halal slaughter, and also be told when we may be eating that meat and therefore supporting the practice?

Lord Henley: My Lords, I believe that that is another Question, but I can say that we have no plans whatever to make the practice of halal or kosher killing illegal. However, we think that it is worth considering the appropriate labelling of all meat so that people know exactly what it is that they are eating and how the meat has been killed.

Baroness Parminter: My Lords, given that Defra recently refused to prosecute practices which seemed to be contrary to the law on the grounds that the evidence had been illegally obtained, can the Minister inform the House how, without mandatory CCTV, slaughterhouse enforcement can be improved?

Lord Henley: My Lords, there are many factors other than compulsory CCTV; it is important to have vets working in all abattoirs and for inspections to

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take place at an appropriate level. I can assure my noble friend that any decision on whether to prosecute will be taken by independent prosecution lawyers; Ministers have no say in it. In the case that my noble friend refers to, the independent prosecution lawyer took into account previous court decisions which make it clear that evidence which has been unlawfully obtained cannot be used and will be excluded in such cases.

Baroness Quin: My Lords, given the alarming footage referred to by the noble Lord, Lord Greaves, and the disturbing report in the Independent last Friday, can we have an assurance that despite the decision made on court proceedings, not only will Defra's commitment to animal welfare be reinforced rather than weakened, but the cuts imposed by the Department for Communities and Local Government will not impact on the ability of local authorities to carry out their important animal welfare role in monitoring abattoirs and markets?

Lord Henley: My Lords, of course they will not affect the role of local authorities in that regard. What is important is that Defra, through the Food Standards Agency, will continue to make sure that abattoirs are operating carefully, and we will make sure that appropriate funds are available for that. We are also going to consult on whether we should look to a full costs recovery scheme for the costs of monitoring what goes on in abattoirs, but obviously that is something which has to be discussed with the industry.

Lord Palmer: My Lords, given that the coalition Government have made it quite clear that the noble Lord's department in particular wishes to cut red tape, insisting that every abattoir has CCTV would surely go against its principles.

Lord Henley: My Lords, we have no power to insist that every abattoir should have CCTV, and that will be made even clearer when the latest EU regulation, Regulation 1099/2009, comes into effect. We will continue to encourage all abattoirs to install CCTV, but that is only one method of ensuring that appropriate monitoring takes place. There are other tools that can be used.

Lord Mackenzie of Framwellgate: My Lords, given the evidence that CCTV prevents and detects crime on the streets, can the Minister explain why the coalition intends to reduce coverage on the streets by CCTV?

Lord Henley: My Lords, that is a completely different question from the one on the Order Paper and has nothing whatever to do with slaughterhouses.

Lord Tebbit: Can my noble friend tell me whether the European Union has power to enforce CCTV in abattoirs?

Lord Henley: My Lords, my understanding is that the new regulation to which I referred-EU Regulation 1099/2009, which was agreed under the previous Government's administration and came into force in 2009-constrains the use of national rules and would prohibit government action to require compulsory installation of CCTV in the future.



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Lord Dykes: Can the Minister enlighten the House by saying how many prosecutions of abattoir operators there have been in the past five years?

Lord Henley: I cannot give a precise figure. However, I can assure my noble friend that there have been prosecutions since the current Government came into office.

Arrangement of Business

Announcement

3.06 pm

Baroness Anelay of St Johns: My Lords, immediately after the debate on the second group of amendments on the Public Bodies Bill, my noble friend Lady Neville-Jones will repeat a Statement on controlling migration.

Lord Bassam of Brighton: My Lords, in connection with the business of the day announcement which the noble Baroness, Lady Anelay, has just made on the Statement on immigration, I bring to the attention of the House what we believe to be a serious matter in relation to the Savings Accounts and Health in Pregnancy Grant Bill and the role of your Lordships' House as a revising Chamber. We understand that an announcement is to be made shortly on this Bill, setting out that the Commons has passed the Bill and presenting it for its First Reading here in your Lordships' House.The Companion makes clear that the First Reading of a Bill is agreed without dissent or debate, and I fully intend to stand by that provision if, as we expect, the Bill is presented for First Reading. However, we understand that the Speaker in another place has declared that the Bill is a money Bill and is therefore covered by Commons financial privilege. The net effect of this is that this House will be unable to consider and debate the Bill and propose any amendments to it in its normal role as a revising Chamber.

The three provisions that the Bill seeks to modify were fully and properly considered in primary legislation in both Houses of Parliament, and we consider it a constitutional outrage for this House to be so prevented from considering the subsequent Bill, which will cut these payments now. If such a Bill is declared a money Bill then any such legislation can be designated in this way, again thereby attacking the role of this House as a revising Chamber and an important part of the checks and balances of our constitutional arrangements. In seeking to bring this important matter to the attention of the House we give notice that we will oppose this Bill at Second Reading and its declaration as a money Bill. Again, I believe that the Government are not conducting legislation in an entirely proper way.

Baroness Anelay of St Johns: My Lords, I hope the noble Lord, Lord Bassam, will consider and reflect carefully on the latter part of his choice of words.

I remind the House of the guidance in the Companion. Paragraph 8.196 states:

"A money bill is a bill endorsed with a signed certificate of the Speaker of the House of Commons that it is a money bill because in the Speaker's opinion it contains only provisions dealing with national, but not local, taxation, public money or loans or their management. The certificate of the Speaker is conclusive for all purposes".



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In addition, the Companion is clear that criticism of rulings of the Commons Speaker is out of order. Paragraph 4.44 states:

"Criticism of proceedings in the House of Commons or of Commons Speaker's rulings is out of order, but criticism may be made of the institutional structure of Parliament or the role and function of the House of Commons".

That debate is better had at Second Reading within that context.

Lord Bassam of Brighton: My Lords, I am sure that that is entirely right. We will of course abide by those provisions and raise these matters at Second Reading, but, I repeat, all three of these issues were properly and fully considered by this House at all stages of those pieces of legislation. That is a record of which we should be proud.

Savings Accounts and Health in Pregnancy Grant Bill

First Reading

3.10 pm

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Apportionment of Money in the National Lottery Distribution Fund Order 2010

Motion to Approve

3.11 pm

Moved by Baroness Garden of Frognal

Motion agreed.

Official Statistics Order 2010

Motion to Approve

Moved by Lord Taylor of Holbeach

Motion approved.

Public Bodies Bill [HL]

Main Bill Page

Committee (1st Day)



23 Nov 2010 : Column 1010

3.12 pm

Clause 1 : Power to abolish

Amendment 1

Moved by Lord Lester of Herne Hill

1: Clause 1, page 1, line 3, at beginning insert "Subject to section (Restrictions on ministerial powers),"

Lord Lester of Herne Hill: My Lords, the amendment stands in my name and that of the noble Lord, Lord Pannick. I shall speak also to some other amendments in my name and that of others that are in this group.

In his reply to the Second Reading debate on 9November, the Minister responded positively to the serious concerns raised across the House and undertook to meet them by devising a parliamentary procedure that would,

The Minister also undertook to see whether some of the bodies needed to be removed entirely from Schedule 7, and to address concerns,

The Minister explained that the detailed and expert scrutiny by the Delegated Powers and Regulatory Reform Committee and the Joint Committee on Human Rights, as well as the Constitution Committee, would all need to be taken into account. The Joint Committee on Human Rights, on which I serve, has just met. It is awaiting a human rights memorandum from the Cabinet Office and hopes to report before Report.

The Minister's positive response was welcome. He and his advisers have been generous in meeting noble Lords for further discussions. The Delegated Powers and Regulatory Reform Committee published its report on the Bill three days later on 12 November.

Amendment 1 is important because it would pave the way for the proposed new clause to place restrictions on the powers conferred by the Act to act by way of delegated rather than primary legislation whenever Ministers intend to abolish or interfere with the constitutional arrangements, funding or management of the many disparate public bodies within the Bill's reach. It is more than just a paving amendment since it is linked with the proposed new clause in Amendment 175, which would set clear limits on the exercise of the wide powers delegated to Ministers by the Bill. Taken together, Amendments 1 and 175 would perform the essential purpose of making Ministers accountable to the courts for breaches of well-known standards of public administration. I hope that the Minister will accept Amendment 1, or its effect, thereby leaving himself time before Amendment 175 is reached to modify his position on the further safeguards and restrictions that are needed. Amendment 1 would leave the door ajar, but it is the key that opens the door.



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Our amendments, which have support from all sides of the House, need to be viewed in the context of the other amendments on public consultation and parliamentary scrutiny and approval that will together create an appropriate framework for the exercise of these wide powers. They seek to make the Bill accord with constitutional standards and good practice, respecting the different institutional competence and separation of powers between the Executive and Parliament, and between those branches of government and the independent judiciary. Taken as a whole, they seek to secure democratic accountability to Parliament and the citizen, as well as to the courts in accordance with the rule of law. Like the Delegated Powers and Regulatory Reform Committee, I believe that consultation should include public consultation.

If the House can agree on such a framework at an early stage in our debates, full arguments about whether particular orders should be made for this or that public body will be able to be made at the proper time by those affected and by each House of Parliament as and when a Minister finds it expedient to invoke the powers conferred by the Bill. The chilling effect on the independence and proper functioning of the bodies that need to operate independently of unnecessary ministerial interference will be greatly reduced, because Ministers will not be able to use the powers conferred by the Bill in the manner of Henry VIII and Thomas Cromwell. Parliament will require them to be accountable to the courts, to the public and to each House before they may do so. That is the necessary price they must pay for seeking powers of this magnitude.

There are four restrictions in Amendment 175. They seek to protect judicial independence, respect for human rights, a sense of proportion, and the independence and impartiality of bodies whose activities require them to act independently and impartially without unreasonable ministerial interference or direction.

Subsection (1)(a) of the new clause that would be inserted by Amendment 175 would protect the independence and impartiality of the judiciary and other public bodies or officeholders who perform judicial functions. The proposed provision embodies the principles of the rule of law and judicial independence that are set out in the Constitutional Reform Act 2005, but it goes further by referring, as does the Equality Act 2010, to those who perform judicial functions even though they are not courts or tribunals. That also accords with the Minister's assurance at Second Reading that he would address concerns,

I hope and expect that no Minister would wish to do otherwise.

Government Amendment 112 is narrower than Amendment 175, as it refers only to the independence of the judiciary. I hope the Minister will accept that, in principle, what he said at Second Reading needs to be reflected in the Bill on Report.

The activities of several public bodies within the Bill's reach have been designed to promote or protect human rights. Those bodies include the Equality and Human Rights Commission, the Children's Commissioner,

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Her Majesty's Chief Inspector of Prisons, the Criminal Cases Review Commission, the BBC, Channel Four Television Corporation, the Human Fertilisation and Embryology Authority, the Independent Police Complaints Commission, the Legal Services Board, the Parole Board, the Sentencing Council for England and Wales and others. If Ministers were to act in a way that undermined the capacity of such bodies to promote or protect human rights, they would not, as the Explanatory Notes to the Bill explain, directly engage the convention rights but they would undoubtedly engage the convention rights indirectly. Many of those bodies have a strong case for being removed from Schedule 7 altogether, as some of the bodies have to act judicially even though they are not courts in the classic sense.

I accept that it would not normally be necessary to make express provision to compel Ministers to act in a way that is in accordance with the convention rights because that is done in Section 6 of the Human Rights Act 1998, but subsection (1)(b) of the new clause that would be inserted by Amendment 175 includes such a provision for the avoidance of doubt. The proposed provision would include the rights protected,

lest it be thought that such rights were abridged or reduced by the general powers conferred by the Bill. We look forward to the Minister's response on that issue.

The formula used in Clauses 8(2)(a) and 8(2)(b) is taken from Section 3 of the Legislative and Regulatory Reform Act 2006, so it provides that Ministers may not,

Those provisions are vague, and the Explanatory Notes on the Bill are, if I may say so, opaque and much less illuminating than the Explanatory Notes that were provided for the 2006 Act. Therefore, I ask the Minister to confirm that the notion of "necessary protection" includes, as is the case in Section 3(2)(d) of the 2006 Act according to the Explanatory Notes on that provision, matters such as,

I also ask the Minister to confirm that Clause 8(2)(b) is intended to include both convention and common law rights, including legitimate expectations.

The third restriction, in subsection (1)(c) of the new clause that would be inserted by Amendment 175, would require the use of,

Paragraph 20 of the Delegated Powers and Regulatory Reform Committee's report draws attention to the fact that the Bill as it stands draws on the language of Section 3(2) of the 2006 Act, but that,

The need to strike a fair balance is, I am sure the Minister will confirm, already included in the concept of proportionality, so there is no need to mention that

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in Amendment 175. It is also doubtful that there is any need to include a reference to what is or is not constitutionally significant, since the central purpose of Amendment 175 is to delineate the constitutional contours in the Bill. However, it is essential to include the requirement for the looser of the powers conferred to be proportionate to the legitimate aims prescribed by Clause 8(1).

The concept of proportionality is as English as apple pie, or as Scottish as haggis. The decision-maker must not use a sledgehammer to crack a nut and must not use lawful powers excessively or in a way that results in overkill. That is the basic principle used by both European courts and our own courts in giving effect to EU and convention law, and in applying the common law whereby the courts have said there is little difference between rationality and proportionality. In any assessment of proportionality, the courts leave a proper margin of discretion to the decision-maker, but it is essential to make it clear in the Bill that the powers that are delegated must be applied with a sense of proportion.

In his letter to my noble friend Lady Thomas of Winchester of 19 November, in response to her committee's report, the Minister accepted that considerations of proportionality are clearly an aspect of Ministers' considerations when having regard to the objective of securing increased efficiency, effectiveness and economy in the exercise of public functions, but he did not explain why the Bill should be weaker in that respect than the 2006 Act. The subject matter of the two measures is different, but the principle of proportionality should surely apply to the exercise of Ministers' powers under both measures as a matter of legal obligation.

The Minister's letter to the noble Baroness, Lady Jay, in response to the report from her Constitution Committee, also seeks to justify the Government's reluctance to include the requirement of proportionality in the Bill, as the previous Government did in the 2006 Act and in other legislation, including the Equality Act 2010, as the noble Baroness, Lady Royall, will recall. Yet the Minister acknowledges that:

"A decision which was not proportionate, or was irrational, could of course be challenged in the Courts in the normal way".

Quite apart from the fact that the principle of proportionality has yet to be fully recognised by our courts as a general principle of administrative law, there is no justification in that letter-or, I submit, otherwise-for failing to include the same protection against the excessive use of Ministers' powers in this Bill as in the 2006 Act. I know that the noble Lord, Lord Pannick, who can be said to be a rather greater authority than I could ever be in administrative law, will want to explain further the importance of the principle of proportionality in the context of this Bill.

Our Amendment 175 also requires:

"Where the nature and activities of a public body or office require the establishing of facts or the giving of expert advice independently and impartially, the powers conferred by the Act must be exercised in a way which ensures that the public body or office remains able to act in accordance with those requirements".



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The Delegated Powers and Regulatory Reform Committee refers to this important issue in paragraph 38 of its first report. The Government's amendment to Clause 8 is better expressed than our amendment, but it leaves the matter to relevant consideration by the Minister and is therefore weaker.

Amendment 106 is included to ensure that the matters to be considered in Clause 8(1) apply to the exercise of the powers conferred by Clause 11 to amend Schedules 1 to 6. Amendment 109 is designed to make the protection in Clause 8(2) objective rather than subject to the Minister's discretion. Amendment 110 would make it necessary for the Minister to act reasonably, but those amendments will probably be unnecessary if, as we hope, the principle of proportionality is included in the Bill as an objective requirement. I beg to move.

3.30 pm

Lord Campbell of Alloway: I support the noble Lord's Amendments 1 and 175. What he said was wholly consistent with the acknowledged function of this House to protect the constitution and to amend the Bill as it goes through, to delay it and afford the other place an opportunity to reconsider or, indeed, to compromise. What the noble Lord said is wholly consistent with that. What the Opposition will say in a moment is not, so I am not speaking about the Opposition. This is a sound approach for the reasons that I have given and it was very well presented.

Lord Pannick: I have added my name to the amendments tabled by the noble Lord, Lord Lester of Herne Hill, for a simple reason: this is a bad Bill. It confers excessive power on the Executive. It is of fundamental importance to include in the Bill as many protective provisions as possible.

Amendment 1, read with Amendment 175, has a simple purpose. It would restrict ministerial powers so that they can be exercised only in a way that is compatible with judicial independence and human rights and freedoms; is used proportionately; and does not prevent a public body performing its functions to establish facts or to give expert advice independently and impartially. I cannot imagine that the Minister could possibly disagree with any of those well established principles. I suspect he might say that he is doubtful that such principles need to be expressed in the Bill. However, he does then need to explain to the Committee why such principles were expressly included in the 2006 Act. He also needs not merely to explain this question of precedent but to address the question of principle.

Given the breadth of the powers that the Minister seeks in the context of the Bill; given the concerns that were expressed about the scope of those powers by your Lordships' Committee on the Constitution, of which I am a member, and by your Lordships' Delegated Powers and Regulatory Reform Committee; and given the concerns expressed by many of your Lordships at Second Reading, it is of vital importance to identify in the Bill important constraints on the exercise of these powers. It is important for two reasons. It is important to ensure that future Ministers are as careful in their use of the powers as I am sure the Minister will be. It is

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also important to reassure public bodies and members of the public that we in Parliament have not lightly conferred such powers on Ministers, but rather that we have been anxious to emphasise in the Bill that there are important limits on what Parliament is willing to authorise Ministers to do.

The importance of Amendment 1, read with Amendment 175, is confirmed by the much weaker protection that the Minister is inviting the Committee to add to the Bill in his amendments. The Government's amendments, although a welcome improvement on the original Bill, are insufficient. They simply require the Minister to consider defined matters before exercising powers. They do not-as they should-prevent the Minister making an order if and to the extent that it would interfere with the independence of the judiciary, or concern functions which require to be exercised independently of Ministers as they involve giving impartial advice or the scrutiny of Ministers' actions. For example, government Amendment 108, which we are considering in this group, will require the Minister to consider only the extent to which the functions affected by the order need to be exercised independently of Ministers. If the functions do indeed relate to such matters, primary legislation should be required to ensure proper parliamentary scrutiny. Amendment 109, in the name of the noble Lord, Lord Lester of Herne Hill, would remove from Clause 8(2) "the Minister considers that" in relation to necessary protections.

It should not be simply a matter of the Minister forming an opinion on these matters; the Bill must provide that he or she cannot make an order if it would remove necessary protections, such as interfering with the independence of the judiciary. That would ensure-

Lord Phillips of Sudbury: I am grateful to the noble Lord for giving way. I am entirely sympathetic to what he and my noble friend Lord Lester are saying but I hope that he can help me and, I think, the House by answering the following question. I think he said that the provisions in paragraphs (a), (b) and (c) in the proposed new subsection (1) in Amendment 175 are implied by law and therefore do not need to be expressed in the statute. My noble friend Lord Lester wonders about proportionality, but by inserting existing powers in this Bill, are we in danger of shackling future legislation where those provisions are not inserted in the relevant Bill, and perhaps therefore getting into an argument that, as they are not there, they are not considered part of the Bill? I hope that I have expressed myself clearly.

Lord Pannick: I am grateful to the noble Lord. Of course, that is precisely what Parliament did in the 2006 Act. As I have sought to explain, the reason it did it in that legislation, and the reason it should do it in this legislation is because this Bill is so exceptional-it seeks to give a degree of power to Ministers which requires that the constraints are set out in the Bill in the clearest possible way in order to give confidence to those public bodies which may be the subject of orders made in the future. Regrettably, there is still doubt about whether proportionality is a general legal principle that applies to the exercise of all administrative functions.



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I was dealing with the Minister's amendment, which accepts that necessary protection includes the independence of the judiciary within the meaning of Section 3 of the Constitutional Reform Act 2005, and that is very welcome. However, Section 3 of that Act states that all Ministers of the Crown,

It does not merely say that Ministers must consider upholding the independence of the judiciary, or that Ministers must not take any action which they consider would conflict with the independence of the judiciary. This is important because the constitutional principle is that it is the duty of Ministers, and all others concerned with the administration of justice, to observe the independence of the judiciary.

As so many of your Lordships explained on Second Reading, particularly the noble and learned Lord, Lord Woolf, if Ministers are to be granted those broad powers to make orders-a matter to which I am sure that we will return later in Committee-it is vital that those powers are as circumscribed as possible. They must not trespass on the independence of the judiciary and on other fundamental principles, or undermine the functions of bodies whose task is to scrutinise government conduct and give impartial advice to the Government.

I very much hope that the Minister will feel able to accept Amendment 1. If not, I very much hope that the noble Lord, Lord Lester of Herne Hill, will regard this as a matter of considerable importance as we begin Committee and will seek the opinion of the House.

Lord Clinton-Davis: If the Government were to prevail so far as the amendment was concerned, could the issue be raised again in the courts? I think it could.

Lord Pannick: I am sure that there would be ample room for argument in the courts. I am concerned that we do not leave matters of this importance, in relation to a Bill that confers such exceptional powers on the Executive, to legal argument for the future. It is our task and our responsibility to ensure that these matters are clearly stated in the legislation that we are considering.

Baroness Hayter of Kentish Town: My Lords, I endorse the words of both noble Lords, Lord Lester of Herne Hill and Lord Pannick. I urge the Minister and the Committee to do the same.

Amendments 14 and 107 seek to ensure that, in any move to abolish, merge or alter the various organisations listed in the various schedules, the Minister must have regard to the original powers or objectives laid down in law for those bodies. It would therefore not be enough to say simply, "We can save money by these changes", although I always agree with saving money. The amendments would make it necessary to consider more than just the need for specialist and technical expertise, much though I also support that; and more than simply independence from government, as has been spoken of, much as I also concur with that.

Parliament needs to be satisfied that the raison d'être of each body-its objective, as set down in statute-will be protected and continued under whichever body takes over from the abolished, reformed or merged organisation. I would like to give four brief examples listed in the schedules where legislation has been passed,

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including through this House, to give powers or duties to those organisations. We need assurance that, in any change to their status, the very purpose and duties for which they were set up should be retained, even if carried out in a more resource-efficient way.

I start with the Legal Services Board; I declare an interest as chair of the Legal Services Consumer Panel, which is funded by the Legal Services Board. The Legal Services Act 2007 requires the establishment of the board, and says that it,

Act's "regulatory objectives", which are about,

and,

The Act also demands that the board promotes adherence to the professional principles of lawyers, which are to,

and,

This goes further than judicial independence-important though that is; those objectives would need to be retained. My amendment would ensure that those objectives were still met if there were any alteration to the board's set-up. They are absolutely central to the administration of justice.

3.45 pm

My second example is Consumer Focus and the National Consumer Council. Many years ago, I was on its board, although I am there no longer. Under the Consumers, Estate Agents and Redress Act 2007, various things are required of Consumer Focus; for example, it must have a Scottish, Welsh and Northern Irish arm, it must have regard to the interests of consumers in different areas, and to the interests of consumers who are disabled or chronically sick, pensioners on low incomes, or who live in rural areas. One of the core functions of the NCC under that Act is to set out powers of investigation, especially on behalf of vulnerable consumers. Again, the purpose of my amendments is to make sure that those duties, particularly those about vulnerable consumers, are retained with the same force of law as those under the 2007 Act.

The third example is NEST, the National Employment Savings Trust, of which I used to be a member. This was created under the Pensions Act 2008. It is, indeed, a pension scheme established to be treated for all purposes as an irrevocable trust. The Secretary of State must require trustees to make arrangements for consulting members of the pension scheme and their employers, and establish a members' panel and employers' panel. Whenever the Secretary of State makes decisions by order, it must be with the consent of the trustees, and they must consult with the members' panel and the employers' panel. This trustee corporation, NEST, which is listed in Schedule 7, is a body corporate and is, under the 2008 Act,

The Act specifically states:



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"Property held by the corporation is not to be regarded as property of, or property held on behalf of, the Crown".

Indeed, the resources that it looks after belong, of course, to the members of the pension scheme. So the functions of NEST are to act as trustee of the pension scheme and to provide pensions to its members. My amendment would ensure that if there were any move under the powers of the Bill to change the NEST corporation, its duties would be retained, whatever the alteration to its status.

Lastly, the powers of the Rail Passengers Council-or Passenger Focus, as it is probably better known-include the ability to investigate any matter relating to rail passenger services or stations, because either it considers that it is fit to do so or passengers or users bring an issue to its attention. It has an ongoing role as a watchdog to review the provision of railway services in the interests of the public. Similar powers relate to road transport.

Lord Lester of Herne Hill: The noble Baroness makes a powerful case, but can she help me? The powers in the Bill are wide enough to deal with bodies that have outlived their useful life or are in need of substantial and radical reform. My idea is that it would be a sensible way forward to hedge the powers with sufficient safeguards. What about the noble Baroness's approach? What happens if Ministers rationally and proportionately decide that body X has outlived its useful purpose or needs radical reform? Would not her Amendment 107 produce a situation of fossilisation?

Baroness Hayter of Kentish Town: The idea is that they should have regard to those objectives. If the objectives are no longer required, or if they could be dealt with in a different way by a different body, that would be one thing. My concern is that if we look only at the issue of independence-which I spoke about, and stressed the importance of, at Second Reading-this will not be sufficient if the power given by the Bill to a body to make sure something happens is still needed. There is nothing else in the Bill as it stands-and even with the other amendments-to make sure that those duties, for example to look after the interests of consumers in rural areas, or of vulnerable consumers, are still carried out. They must have regard to those interests, but my concern is that the purpose for which primary legislation set up these bodies, and the duties which it gave them, should be considered by the Minister before he exercises his power. In passing the Bill, Parliament must be confident that where the functions are still needed, they will still exist under the new body, which will have the same strength to safeguard whichever group of users or vulnerable people or pension members whose interests are covered by the 150 groups listed in Schedule 7. Therefore, the amendments in this group seek to ensure not only that the new bodies are independent, but that the purposes for which Parliament set up the old bodies, if they are still needed, will be retained by the new bodies, which will have the relevant powers.

Lord Lloyd of Berwick: My Lords, I am sorry to invite the Committee to listen to another lawyer quite so soon. I regret very much that, as I was abroad, I

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could not be present for Second Reading. However, I express my complete and respectful agreement with the speeches of the noble and learned Lords, Lord Woolf and Lord Mayhew, the noble Baroness, Lady Andrews, and indeed many others. As a result of Second Reading, we now have before us very elaborate amendments covering the question of proper consultation and procedure. The amendments were pioneered by the noble Lords, Lord Lester and Lord Pannick, who were followed by Her Majesty's loyal Opposition and then by the Government. I will certainly vote for one of the amendments, and all three if necessary.

However, welcome though the amendments are, they do not hide the remaining glaring deformities of the Bill. In particular, I will concentrate on government Amendment 108 in this group, which has been referred to already by the noble Lord, Lord Pannick. Clause 8 establishes the two main objectives of the Bill: to bring about greater efficiency and accountability. The clause is said to be the great safeguard in the Bill. However, the moment I read about greater accountability to Ministers, I hear a warning signal. We should read carefully Amendment 108 to Clause 8. It states:

"For the purposes of the objective referred to in subsection (1)(b)"-

that is the accountability objective-

I shall leave for the moment proposed new paragraph (b).

The moment I read that amendment to Clause 8, I began to feel that we were verging on a contradiction in terms. The whole objective, it is said, is to lead to greater accountability, yet at the same time it is said that the Minister is to take into account matters which emphasise the bodies' independence of Ministers. I find it very difficult to see how these two apparently contradictory objectives can be reconciled. Exactly the same applies-perhaps even more so-to paragraph (b) in Amendment 108, which says,

It seems to me that, once the facts in relation to that are established regarding any of the bodies in Schedules 1 to 6, it must no longer be a matter for the Minister's consideration-a point made effectively by the noble Lord, Lord Pannick. Once it is established that that is the purpose of the body in question, then surely it is not a matter for the Minister's consideration; at that point, the body must be taken out of Schedules 1 to 6 altogether and left to primary legislation.

Either this amendment means nothing at all or, if it means anything, it is contradictory to the main objective and is therefore likely to lead to a great deal of litigation in the future, which one can easily envisage. In the mean time, however, if the relevant facts in relation to any particular body are established, then the only solution, with great respect, is to take that body out of Schedules 1 to 6 altogether.

Lord Soley: We have just heard four very powerful speeches, which I hope will influence the Government. I shall try not to repeat the various points that have been made but I agree with them. My noble friend

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Lady Hayter made a very good point when she talked about the Legal Services Board and the Legal Services Commission, because these bodies need to be seen to be independent.

I am disappointed by the Government's amendments for two reasons. First, I think that there is very wide agreement, both in this House and indeed in the House of Commons, with what the Government want to achieve. There is no argument about the need to find new and better ways of ending, changing or winding up quangos, and there is a wonderful opportunity here for all-party agreement in both Houses about improving the way in which we set up these bodies and change them.

The second reason I am disappointed is that at Second Reading I listened very carefully to the noble Lord, Lord Taylor of Holbeach, who I thought-indeed, I said it to many people-made a very powerful and thoughtful speech. He seemed to have grasped the acute anxiety felt across this House about the extent of the power being given to Ministers over Parliament. That is what triggers so much of the concern and it follows on from the amendment of the noble Lord, Lord Lester, which focuses very much on the critical issue of the judiciary.

The Government still do not understand that this is a question of how much power a Minister has to override Parliament-that is what it boils down to and I say it deliberately and distinctly. As has already been stated, government Amendments 167, 168 and 108, which I am sure the noble Lord will speak to in due course, require the Minister to consider. That is a very small step forward but it does not address the fact that, once the Minister has considered, he can still go ahead and carry out the actions that he was thinking of taking with or without any changes, regardless of what Parliament may have said or done. Parliament cannot make amendments, as was originally the case when the primary legislation went through.

4 pm

I am a member of the Delegated Powers and Regulatory Reform Committee which, as the House would expect, gave very careful consideration to this, all the way through. I do not want to go into detail about what the committee said-these views are obviously my own-but concern was expressed, reflecting what was happening in this House, that Ministers were being given excessive powers and that Parliament was being sidelined. That is the core of the issue.

It is very difficult to amend the Bill in a way which addresses those points satisfactorily. There were more opportunities than the Government availed themselves of with the amendments that they have tabled to date and that is why I strongly support the amendment in the name of the noble Lord, Lord Lester, as I think it is very important. If the Government take the view that their main aim is to allow Ministers to change, to wind up or whatever, these bodies, they have to ask themselves how on earth they can deal with the independence issue and the fact that primary legislation is being overturned without a vote in Parliament. This is essentially about the power of Parliament versus the power of government. As someone who has experience of many Governments I know that, at times, all

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Governments get carried away by the power of government but, frankly, most Governments take some years to reach that stage. With this Bill, the Government have reached it at a much earlier stage. Even if I were sitting on the Conservative Benches, I would be worried about an overpowerful Government. That is why some of the Minister's Back-Benchers are worried. I know that is true. They have said it in a debate and in other circumstances. There is genuine concern about this and I do not think it is satisfactory.

Perhaps I may quote from the fifth report on the Public Bodies Bill, which is not the report that was in the Public Bill Office today. I get the feeling that the Minister might think that he has met some of the concerns expressed in the fifth report. I can see that he has tried. It is paragraph 35 and subsequent ones. He seems to take the view that if he does some of those things, somehow that makes the Bill all right. Paragraph 42 is the key bit. It also refers to the 2006 Act. I shall quote the whole passage, which is fairly long, so I hope the Committee will bear with me:

"During the passage of the Legislative and Regulatory Reform Bill the government made a commitment"-

I stress "a commitment"-

the Delegated Powers and Regulatory Reform Committee-

That is a key part of that report. Simply by trying to bring in some of these lesser safeguards, like considering matters or like the super-affirmative procedure, does not alter the fact that to give power to Ministers which marginalises the power of Parliament to alter Acts of Parliament which are reasonably made by primary legislation cannot be right and cannot be desirable.

I end where I started. The opportunities for all-party agreement in both Houses are very great. An imaginative approach would be to say that we all want to deal with quangos more effectively than we have been, so let us find that way and there will not be great difficulty on that. I think the Minister would find a lot of people in agreement with him. However, he cannot allow this to go through as it is and threaten the independence, as in the case of Amendment 1 now before us, of the judiciary and other legal bodies, as my noble friend pointed out. We cannot go through with that and allow Ministers to have the extensive power which is taken in this Bill. The powers are excessive and are a threat to the parliamentary sovereignty issue. At the end of the day, Parliament has the right to control government and not the other way around. These are classic Henry VIII powers. It is Henry VIII saying, "I will listen", or in the words of the Minister's Amendments 167, 168 and 108, "I will consider the matter". Then, of course, he can come back and do exactly what he said he would do anyway. That is the real example of a Henry VIII power. That cannot be allowed and we should not allow that; Parliament comes first, not government.



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Lord Renton of Mount Harry: Like the noble Lord, Lord Pannick, I served on the Constitution Committee that produced the first report on the Public Bodies Bill. As the noble Lord will remember, I shared his horror-that is perhaps the appropriate word-when we first read this Bill and studied it. Listening to what has been said, particularly by the noble Lord, Lord Soley, I feel a great need to hear what the Minister has to say to us before taking a final decision. I have talked to the Minister, as have others, in recent days and in talking to us he was very well aware of the need to bring in procedures that would involve public consultation, parliamentary consultation and, indeed, the ability of Parliament to say no, if it wants to.

Listening is very important, but one also has to consider not just the law on this but the situation that the Government found, which they wish to tidy up. There are, I think, something like 500 public bodies mentioned in the Bill. Some of them have never worked at all, some duplicate the work of others and some would run better twinned with others. That, one knows, was the basis for bringing in the Bill in the first place, along with the Government's wish to try to reduce the cost of quangos as one step in reducing the amount of public money spent in this country. I approach it from that angle, rather than from the legal angle.

I expect that we all know bodies on this list that we have worked with. Sometimes we have got frustrated, and other times we have been very satisfied. I declare a particular interest in the national parks, because I have been involved in the South Downs for a long time. We are about to become part of the new national park, and I am very interested to know just how the laws, the custom, of the national parks are going to affect inhabitants of Lewes and Sussex, such as myself. However, I realise that even with as big a body as the national parks, we all have to look at the possibility of pruning and streamlining and spending less public money. For me, that is the spirit behind the Bill.

In other amendments-for example, Amendments 114 and 118-your Lordships will see the very definite wish of the Government, through my noble friend Lord Taylor, to have procedures and consultation that are widespread but much more effective. That is the positive side of what is being looked at today, and it is for that reason that I will in the end, I hope, vote with the Government because this tidying up is very much needed and we are taking a step in the right direction.

Lord Woolf: My Lords, if what we were embarked on in this Bill was tidying up and that was the exercise to which we were limited, I would have no trouble with this Bill. However, it is my belief that the Bill goes miles beyond such an exercise. As a result, notwithstanding the fact that I agree with virtually everything that has been said about amendments to this Bill, I need add virtually nothing.

If I should add something, it would be to this effect. I admire the ingenuity and the skill with which the noble Lords, Lord Lester and Lord Pannick, have found ways to curtail the extraordinarily wide powers that this Bill gives. But, even with those provisions, which are very welcome, the fact remains that things

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are being done by this Bill which are just inappropriate. That is why I am troubling to take up your Lordships' time.

The bodies referred to in Schedule 7 are not the sort of bodies which, because of their very nature and their importance, should be abolished, amended or modified in accordance with the scheme of this Bill. It is almost an insult to the constitutional principles involved in dealing with bodies of that nature, which should be shown care and respect, to treat them in this cavalier way. Each of the bodies in Schedule 7 can say, "We are the sort of bodies that if we are going to be changed have to be changed by primary legislation so that we cannot only consider what will happen if we are moved to another schedule, but what will be put in our place if we no longer perform the functions which Parliament has in most cases entrusted to us? We would refer those responsible for the administration of justice to the manner in which we can protect the improper interests of the administration of justice".

While that is true and self-evident in the case of Schedule 7 bodies, it is also, to a substantial extent, true in the case of some of the bodies-I emphasise the word "some"-in Schedule 1. I draw attention especially to the first and the last bodies mentioned in Schedule 1. However, I know that these matters will be dealt with later, particularly by the noble Lord, Lord Borrie, as regards the Administrative Justice and Tribunals Council. It used to be called the Council of Tribunals, which played a significant part in the development of administrative principles of good practice in this country. The bodies subject to the supervision and guidance of the council are bodies which provide for the great bulk of the citizens in this country the only way in which they can obtain justice in regard to matters that may, in the scale of some of the matters that come before the courts, seem modest, but which are very important to the individual citizen.

If you are seeking a benefit or you say, "I have been deprived of a benefit to which I am entitled", you go to one of the tribunals supervised by this body. If you are complaining about your tax, you go to the tribunals dealing with revenue issues. These bodies affect, from time to time, most citizens in this country. They need the watchdog which the council provided. The watchdog was there, not to protect the rights of the tribunal or the Executive, but to act on behalf of the public as their watchdog to ensure that the bodies are meeting the standards that are required of bodies of the nature to which I have referred. You cannot remove the dangers created in this Bill by putting such bodies in Schedule 1. The council to which I have just referred can be removed by order in circumstances where there will be no proper consideration of how the body operates as a whole.

I turn to the Youth Justice Board for England and Wales, which is the last of the bodies referred to in Schedule 1. There may be controversy as to the role the board has played in assisting the way in which we deal with the very significant problem of misbehaviour and crimes committed by the young, but if we take the Youth Justice Board away, as Schedule 1 presupposes, we have to think about what should be put in its place. This Bill is not the proper machinery in which to

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consider an issue of that sort. It can be considered properly only in the context of an examination of how we approach the criminal conduct of youths subject to the board. I should tell the Minister that a great many of those intimately involved in the criminal justice system think that the Youth Justice Board has been a positive move and that in certain periods during its life it has improved the manner in which we handle the difficult problem of how to treat youngsters involved in these unfortunate matters.

I was impressed by the open-mindedness with which the noble Lord, Lord Taylor, considered what was submitted to him in the debate on Second Reading. I hope that he will also consider what has been said in the course of this debate because it is important and deals with principles of long standing.

4.15 pm

Lord Lester of Herne Hill: My Lords, may I respectfully ask the noble and learned Lord a question? By implication, I think he is suggesting that I am slightly too moderate, which may be the case. But if one takes as an example the Judicial Appointments Commission and assumes that some minor but necessary changes need to be made to its structure or administration, one has the ironclad and objective safeguards of independence as well as the other safeguard written in of objective standards. One has also the safeguards of public consultation and the need for the Minister to come before each House to justify the order on the facts, with reasons given. Is the position of the noble and learned Lord that, even with all those safeguards, nothing can be done in relation to that body except by primary legislation? If that is his position, with great respect, it seems disproportionate.

Lord Woolf: My Lords, as always the noble Lord, Lord Lester, has made a good point. But the fact of the matter is this: is the procedure set out in this Bill the appropriate way of dealing with the minor amendments to which he has referred? He has taken as an example the body which, ironically, was designed to achieve the independence of the judiciary from the Executive by ensuring that the way in which judges are appointed is separated from the Executive. What the Bill will do is say that if we want to amend or abolish that body, we will go through a two-stage process. First, we will move it to another schedule, and possibly discuss that in this House. We will then go through another process to achieve the desired amendment. If it is wrong in principle, as I submit it is, to treat a body of this sort by placing it in Schedule 7, then the fact that one day some minor amendment might need to be made to that body does not justify the treatment being proposed. The Judicial Appointments Commission justifies proper consideration because even minor amendments can affect such a body in ways that caused this House to look so carefully, in the Constitutional Reform Act 2005, at how in the future we would appoint our judges.

Baroness Butler-Sloss: My Lords, I hope the Committee will forgive me for not being present throughout the debate on this first amendment but I have been at a Select Committee.



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I rise for two reasons: first, respectfully to agree with everything that the noble and learned Lord, Lord Woolf, has said; and, secondly, to point out four particular examples in Schedule 7 which are subject to the power to add to other schedules. I cannot see how the examples I am going to give could be added to other schedules. First, where would the Royal Botanic Gardens go to? Secondly, the Children and Family Court Advisory and Support Service had a very unhappy gestation but has now become relatively effective; to interfere with it would be a disaster for children in this country. I know something about the third example, the Family Procedure Rule Committee, because I used to be its chairman. Where do you put that? My last example is the Gangmasters Licensing Authority. The Committee will remember the Chinese cockle pickers and why we established the Gangmasters Licensing Authority. How on earth can it be added to another schedule?

Lord Newton of Braintree: My Lords, I rise, first, because I want to get a word in edgeways as a non-lawyer; and, secondly, because it seems appropriate that I should follow part of what the noble and learned Lord, Lord Woolf, said-prefacing it by declaring a now historic interest as the person who chaired the Council on Tribunals and its successor body, the Administrative Justice and Tribunals Council, for no fewer than 10 years from 1999 until last year. My name is not attached to the amendment of the noble Lord, Lord Borrie, and I shall speak to the AJTC later, but I appreciate and agree with what the noble and learned Lord, Lord Woolf, has said.

As I was not able to be here for Second Reading, I shall not make the Second Reading speech I might have made, deeply unhelpful as the Government would have regarded it. However, I wish to make three points. First, I welcome, as did the noble and learned Lord, Lord Woolf, the spirit in which my noble friend Lord Taylor of Holbeach has responded to the criticisms at Second Reading. Whether or not it goes far enough we shall discover in the course of our debates, but it has been a remarkable exercise in rewriting the Bill as it goes along. It must have taken him quite a lot of work to persuade his colleagues to make such changes. I congratulate him and I do not want to make his life any more difficult.

Secondly, albeit as a non-lawyer and without going over all the speeches, I could not find a word uttered by the original proponent, the noble Lord, Lord Lester, or his seconder, as it were, the noble Lord, Lord Pannick, with which I disagree, and there are probably quite a few noble Lords on this side of the Committee who share that view.

Thirdly, I say to my noble friend-as I am happy to call him-Lord Phillips, a former constituent, and to the Minister that I spent five years as Leader of the House of Commons-I was more or less in charge of the Government's programme in those days-listening to Ministers trying to say that you did not need to put stuff in a Bill because it was implicit and impaling themselves on a ludicrous argument that something that did not make any difference was worth dying in a ditch over. I hope the Minister is not going to do it again.



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Baroness Andrews: My Lords, it is a great honour to follow the noble and learned Lord, Lord Woolf. I shall refer to inappropriate use of delegated legislation. I should declare an interest as a member of the Delegated Powers and Regulatory Reform Committee. It may be helpful to Members who have not had an opportunity to see our sixth report to tell them in brief what it says.

In its fifth report, the committee strongly expressed the view that the Bill provided Ministers with unacceptable discretion to rewrite the statute book with inadequate parliamentary scrutiny and control of the process. It found that the Bill was almost "wholly enabling" and granted Ministers enormous discretion to use delegated powers to abolish or restructure a large number of public bodies and offices. I echo what has already been said around the House about the response of the Minister in trying to address some of the fundamental issues that were raised at Second Reading, and we are grateful for that, but the committee concluded in its report, published this morning, that the concerns had not been resolved and that,

That brings me to the speech just made by my noble friend Lord Soley. While the Minister has tried in his Amendment 108 and those that follow to address some of the concerns through a form of affirmative procedure, it is simply not adequate to deal with the fundamental problems identified with such eloquence by the noble and learned Lord, Lord Woolf, and other Members of this House.

I have some problems with the amendment put forward by the noble Lord, Lord Lester, in the context of the comparison rightly made between this Bill and the Legislative and Regulatory Reform Act 2006. The Government introduce in Amendment 118 a new procedure for orders. It is a form of super-affirmative order. Unfortunately, the Government's argument as to why it is sufficient is disingenuous.

The Minister argued in his letter to the Delegated Powers and Regulatory Reform Committee that the Bill is narrower than the Legislative and Regulatory Reform Act 2006 because that Act applied to policies at large and that the range of protections in it was therefore not appropriate for this Bill. The fact is that this Bill is wider than the Legislative and Regulatory Reform Act 2006. Although the 2006 Act is wider in scope, in the sense that it can involve any public policy or legislation, its effect is narrower, because it is strictly limited to making processes more transparent, accountable, proportionate and consistent. Those are very specific requirements. This Bill is narrow only in the sense that it deals with public bodies, but the powers that it has taken, described by the noble and learned Lord, Lord Woolf, are enormous. What is more, in Schedule 7, we do not know even what those powers will be or what they will be used for. That is what exercises this Committee and it should exercise the Government.

Even more important, Section 2 of the 2006 Act cannot be used to abolish or confer any new regulatory functions, but Clauses 1, 2 and 5 of this Bill expressly provide for the abolition and the creation of regulatory functions. If the Minister were to take my point and

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say that he would come forward with an amendment which imported all the relevant procedures of the 2006 Act into this Bill, the House would have this additional capacity: it would take only a recommendation, not a resolution, of a committee of either House to require the Government to have regard to representations, resolutions and recommendations.

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More importantly still, the committee of either House could veto further proceedings until such time as the House rejects the committee's position. A Minister who wanted to push on with an order unaltered after having been required to have regard to the representations will have to lay a Statement before Parliament giving details of any representations received. That seems to me the minimum that we should expect on this Bill.

I have left the most serious charge until last. The majority of speakers at Second Reading were very clear about the way that they viewed the toxicity in Schedule 7, which has become known as death row. The large number of amendments on Schedule 7 speaks for itself. Clause 11 and Schedule 7 exemplify the toxic nature of the Bill. This was only too clearly exposed in the Minister's letter to the DPRRC in which he said, again disingenuously, that to enact the series of changes needed for a diverse range of public bodies through primary legislation,

He said that owing to other pressures on Parliament and the fact that some departments often do not have a legislative vehicle in a particular session,

Is that not the point? Ministers come to this House with legislation properly prepared and appropriate to its use of powers; Ministers wait for a legislative opportunity. This Bill would give any Minister an opportunity to put forward to this House a raft of proposals completely unconsidered by this House, bypassing primary legislation and using the excuse of secondary legislation because he was in a hurry; because there was no slot available on the parliamentary timetable; because Government were simply too busy to allow Parliament to undertake its proper scrutiny.

I do not know where we are going on this Bill but I advise the Minister, good man that he is, to think extremely seriously about what is being said about the fundamental principle.

Lord Ramsbotham: My Lords, I make a very brief point to support my noble and learned friend Lord Woolf in his support for the general principle behind the Bill and also in his concerns. I refer to one document that has not so far been mentioned-the impact assessment. We have heard enough already around this House to realise that there is something wrong in an impact assessment that can say that the Bill has no direct impact on human rights or the justice system. It suggests to me that those who drew up that impact assessment cannot have thought through what they were actually including in this Bill. I hope very much that the Minister will be able to repudiate that impact assessment.



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Lord Elystan-Morgan: My Lords, may I mention two matters very briefly? The first is the matter that was dealt with so magnificently by my noble and learned friend Lord Woolf. It seems to me that only an insensitive Government would even contemplate putting in any one of those schedules quasi-judicial bodies that are so central in their very existence and purpose to the administration of justice. There is no justification whatever for allowing them to remain in that particular jeopardy; they should be inviolate; they should be free from any prospect of ministerial diktat.

The second matter is the wider point of the issue that is before the Committee. Many people will say that they think the issue is whether Ministers should have the right and power to deal in such a savagely surgical way with 481 public bodies. No, that is not the issue. The issue is not the question of the conflict between Ministers and those bodies but that between the Executive and the sovereignty of Parliament. The question is whether those Ministers should have the power to strike down all those masses of legislative developments that have led to the very creation of those bodies in the first place. That is the issue. If I may make a biblical reference, I would say that the proposal is almost an Armageddon issue.

Henry VIII clauses are nothing new. About 80 years ago, Sir Gordon Hewart, a former Attorney-General who later became Lord Chief Justice, wrote a book called The New Despotism, whose title refers to the use of such clauses. Over the past 80 years, there has been a massive growth in the use of Henry VIII clauses such that we have now reached the point at which Parliament must either say no and call a halt to their use or allow the situation to develop ever further and thereby corrupt even the existence of Parliament.

Lord Clinton-Davis: I would like to say a few words, so I propose to speak for about two minutes.

I think that the indictment that the noble Lords, Lord Lester and Lord Pannick, have mounted today is worthy not only of the agreement of the noble Lord, Lord Taylor, to their amendments but of his agreement to the withdrawal of the Bill. We have been especially fortunate to hear the noble and learned Lord, Lord Woolf, give a devastating denunciation of the Bill today that ought to be heard by those on the government Benches.

We all have a great affection for the noble Lord, Lord Taylor, who has done an enormous amount to try to improve the unimprovable. The Minister has made some gallant efforts, but the best thing that he could do, in my view, is to withdraw the Bill and enable the House to consider afresh what ought to be done.

I simply want to underline my concerns as a solicitor. Amendment 175 interprets some crucial and important points that the Government have neglected. To confer upon Ministers the powers that the Government currently contemplate in the Bill is unworthy. The limitations that are provided for in the amendment are really crucial, so I hope that the Government will take those into account properly in their consideration of what has been said.



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Baroness O'Loan: My Lords, I declare an interest as a member of the Delegated Powers and Regulatory Reform Committee, although I speak not for the committee but in a personal capacity.

There is no doubt that it is sensible to review the activities of public bodies-the House is agreed on that-but there are already processes within most pieces of legislation to provide for that. Quinquennial and other reviews, which are a factor of the corporate life of most public bodies, provide regular opportunities for consideration of all the issues such as functions, powers and budgets that are referred to in the Bill. The use of such reviews could provide a starting point from which there could be a coherent review of individual bodies that might, or might not, lead to the need for primary legislation.

Given the importance-indeed, the essential nature-of the work of some of the bodies included in the Bill that the noble and learned Lord, Lord Woolf, and other noble Peers have highlighted, I wish to address whether the Bill includes adequate provision to ensure proper parliamentary control. The problem of course, as noble Lords have all agreed, is that the Bill itself is fundamentally flawed. It is the prerogative of Parliament to make laws, and that prerogative has been exercised on numerous occasions to enable the creation of many of the bodies that are referred to in the Bill, although others were created by royal charter. On each occasion, the passing of the legislation was designed to address a lacuna in current provision and, in many cases, to provide protection in accordance with such fundamentals as the principles of natural justice and human rights. The noble Lord, Lord Ramsbotham, has already referred to the peculiar nature of the impact assessment that has been produced for the Bill.

The Bill seeks to delegate powers to Ministers to abolish, merge or modify the bodies listed in the schedules to the Bill. Noble Lords have already pointed to the significance of the individual statutory duty on many of those bodies. The Constitution Committee has declared that, in the cases that it examined, the question was whether Ministers should have the power to change the statute book for the specific purposes provided for in the Bill and, if so, whether there are adequate procedural safeguards. The committee stated:

"In our view, the Public Bodies Bill ... fails both tests".

As the noble Baroness, Lady Andrews, says, the Delegated Powers and Regulatory Reform Committee, which is representative of all parties, unanimously agreed that,

There has been no change to the essential nature of Clauses 1 to 5 and Clause 11 in the amendments presented by the noble Lord, Lord Taylor. As the noble Lords, Lord Pannick and Lord Lester, have said, when there is a delegation of a legislative power, it must be accompanied by adequate powers of parliamentary control and scrutiny. Where delegation itself is inappropriate and unconstitutional to the extent that

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the delegation proposed in this Bill has been declared to be, there can be no adequate powers of parliamentary control and scrutiny to redress the mischief clearly contained in the Bill.

The Government have argued that there are time pressures which mean that the legislation must be presented in this form rather than through primary legislation. I suggest-and, indeed, submit-that the effect of this legislation, if passed, would be to lead to very extensive and expensive litigation, some of which would probably end up in the highest courts, both here and in Europe. Even if this Bill were passed, it would become necessary to engage in a long and exhaustive process of consultation for each body. While in some cases the outcome might be simple, in others it clearly would not be the case. Huge concern has been articulated in the public domain.

This Bill, which places in peril the ongoing existence and functions of fundamentally important bodies such as the Office of the Director of Public Prosecutions, the Equality and Human Rights Commission, the Criminal Cases Review Commission, the Independent Police Complaints Commission and the Chief Coroner's Office, cannot be subjected to sufficient parliamentary control by virtue of the provisions for control of the delegated legislative powers tabled by the noble Lord, Lord Taylor. I support the noble Baroness, Lady Andrews, in this respect. The impact of this legislation and the extent to which attempts have been made in the House to control the exercise of legislative powers do not address the issue.

Lord Phillips of Sudbury: Did the committee of which the noble Baroness is a member conclude that the powers in this Bill are unprecedented in terms of delegation?

Baroness O'Loan: I would not wish to speak of the committee without referring back to the report, but we did conclude that the delegation of these powers was inappropriate. We also concluded that, unless there were changes to the legislation, Clause 11 and Schedule 7 should be removed from the Bill.

Lord Hunt of Kings Heath: I shall speak to my Amendment 175 and support the amendments in the names of the noble Lords, Lord Lester and Lord Pannick, and my noble friend Lady Hayter. At Second Reading we made it clear that our concerns with the Bill were not with the principle of a regular review of public bodies or-I say this to the noble Lord, Lord Renton-with the tidying-up process. Our overriding concern is with the draconian powers that could be available to Ministers. I am the first to acknowledge that the noble Lord, Lord Taylor, has introduced a series of amendments and I am grateful to him for so doing, but I simply do not think that they go far enough. The Government have underestimated the concerns of noble Lords. My noble friend Lord Soley was surely right that the amendments are surprising in view of the trenchant criticism made of the Bill by two committees of your Lordships' House. The Constitution Committee said that the Bill,



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while the Delegated Powers and Regulatory Reform Committee said that it considered,

That is the context in which we consider this group of amendments. The noble Lord, Lord Elystan-Morgan, said that it is not really about the 450 bodies listed in the Bill; it is about the relationship between the Executive and Parliament. He is absolutely right.

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None the less, being listed in the Bill has a chilling effect on every body so listed. I understand what the noble Lord, Lord Renton, said about the need for pruning and streamlining. The problem is that the Bill could allow Ministers to go further. I ask the Minister to reflect on an organisation listed in Schedule 7, or "death row" as my noble friend Lady Andrews described it. Under Clause 11 a Minister may, by order, add any of the bodies listed under Schedule 7 to one of the principal schedules to the Bill-Schedules 1 to 6. For instance, if a Minister wants to abolish a body, he first moves it, by order, to Schedule 1. He then produces another order to abolish it. In his letter to the Delegated Powers Committee the noble Lord, Lord Taylor, is reassuring in asserting that this will be a two-stage process. However, he then gives the game away by going on to say that it may be appropriate-and would assist Parliament-for the two orders to be debated together. The first order would move a body from Schedule 7 to Schedule 1, in the case of abolition, and the second would be for abolition. I am not sure about Parliament but I can certainly see that it would assist the Executive if it were able to adopt what is, essentially, a one-stop shop approach to abolition.

The impact on all those bodies in Schedule 7 is clear. They will be cowed and become the malleable creatures of the Executive. Any idea of independence of thought by these bodies-any possibility of criticism of government-can be ruled out. It would take just one or two words of caution from the Minister or his officials, or any implied threat to move one of these bodies to Schedule 4, say, for a potential reduction in its finances; or to Schedule 3, which gives Ministers power to sweep away the governing bodies of those organisations and replace them with other people; or to Schedule 1 for outright abolition. Just one or two such hints and most of those bodies listed in Schedule 7 would be expected to fall into line immediately. Already I have been told of bodies listed in the Bill that have been warned by officials against making representations to parliamentarians on the Bill. It is remarkable, given the number of organisations listed, how few have written to us. The chilling effect is already in place.

The constraints that we can place on the Executive in the Bill are crucial. The noble Lord has tabled several amendments, which I welcome. The noble Lord, Lord Taylor, is well known as a Minister who understands this House. The problem is that the amendments still leave us with the huge discretion that is being given to Ministers. Take the Minister's amendments, particularly to Clause 1. As the noble Lord, Lord Pannick, has suggested, the Minister can go through the process but

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then decide, presumably in the case of each of the organisations so listed, that those functions do not need to be exercised independently of Ministers. That would be it; the Minister would have done what the Bill requires of him. In its report today, the Delegated Powers Committee puts it rather more eloquently than I can. It says:

"But it remains the case that the Minister need only 'have regard to' the objective of securing appropriate accountability to Ministers: the Minister remains entitled to consider the need for independence to be outweighed by other factors".

The noble and learned Lord, Lord Lloyd of Berwick, made a very interesting intervention on Amendment 108 to Clause 8, which he thought was a contradiction in terms given that the objective is to seek greater accountability of Ministers, whereas the amendment in the name of the noble Lord, Lord Taylor, refers to functions that,

The noble and learned Lord said that either the amendment means nothing at all or the Government will end up in the courts rather frequently. Like the noble Baroness, Lady Andrews, I am disappointed that the model in the Legislative and Regulatory Reform Act 2006 was not used. That Act provides a parallel. It gives enormous powers to Ministers to remove regulatory boundaries in primary legislation. However, that Act provides many safeguards, including the principles to which the noble Lord, Lord Pannick, referred. Section 3 of that Act contains the preconditions that Ministers must meet before they can make an order-the principles which the noble Lord described. The provisions in Section 3 of that Act are stronger than the measures in this Bill, even with the amendment of the noble Lord, Lord Taylor.

I know the Minister believes that this Bill differs from the Legislative and Regulatory Reform Act in a number of respects. He explained in his letter to the Delegated Powers and Regulatory Reform Committee that that is because this Bill has different subject matter and a narrower scope of powers than the 2006 Act. However, noble Lords who have read the Delegated Powers and Regulatory Reform Committee's report that was published this morning will note that the committee states:

"It is true that the powers in the Bill can apply only to the 200+ bodies listed in it. But section 2 of the 2006 Act seems to the Committee narrower in at least two respects than the powers in the Bill. First, it limits the extent of Ministerial powers by specifying that the power may only be exercised with a particular purpose in mind ... Secondly, the power in section 2 of the 2006 Act cannot be used to abolish any regulatory function or confer any new regulatory function".

The committee points out that:

"Clauses 1, 2 and 5 of the present Bill contain no such limitation".

Therefore, even with the amendments by the noble Lord, Lord Taylor, we need to constrain ministerial powers in the way suggested by the noble Lord, Lord Lester. In his opening remarks the noble Lord described his Amendment 1 as keeping the door open to later amendments. That is indeed what his amendment does. I hope that he will keep the door open, have the courage of his conviction and press his amendment. I hope that he will allow the House to vote on it today.



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Lord Taylor of Holbeach: My Lords, I rise to speak to the Government's amendments in this grouping. I am delighted to have the chance to debate these amendments which, as my noble friend Lord Lester has pointed out, are crucial to maintaining Parliament's confidence that these powers will be used effectively and appropriately. I am encouraged by the level of consensus on the objectives of these amendments, along with those in subsequent groups that have been tabled with the aim of strengthening the framework in which these powers will operate.

I am determined to knock this Bill into shape. We have heard a number of contributions that could be considered to be Second Reading speeches, and we have had to go over ground covered at Second Reading. I do not hesitate to revisit this matter because it is important to reassure the Committee that one cannot sit in this House without being aware of the need to get the balance right between Parliament and government.

I thank my noble friend Lord Renton of Mount Harry for his contribution. He recognised that the Government needed to tackle this problem of public bodies efficiently and effectively because the public expect that of Parliament. However, I understand that Parliament itself, having set up bodies by primary legislation, feels that it needs its say in the process of reorganising public bodies, in specifics and in general.

My noble friend Lord Newton asked that I recognised the difference between explicit and implicit wording in the legislation. I understand that; it is a valuable point and I am grateful to him for making it.

I cannot go all the way suggested by the noble Lord, Lord Clinton-Davis, who asked me to withdraw the Bill. That is a big ask, if I might say so, and I hope that he will understand that I might not be able to meet it. I have to be honest; I do not think that I will be able to meet all the views expressed in this debate. The noble Baroness, Lady O'Loan-she is not in her place at the moment, unfortunately-took a fundamentalist view of the use of legislation of this type to try to deal with this matter. However, from the contributions of the noble Baroness, Lady Andrews, and the noble Lord, Lord Soley, I felt that they wanted some success out of the Bill. It would be wrong of me not to say that I listened to their contributions with great interest, as I did at Second Reading. I noted, too, the contribution of the noble and learned Lord, Lord Lloyd of Berwick. I will refer to the contribution made by the noble and learned Lord, Lord Woolf, and to other contributions on particular aspects of the subject where I am grateful for the elucidation that we received.

I said at Second Reading that I would seek to amend the Bill to safeguard the independence of public bodies in exercising certain functions. Government Amendment 108 does just that by amending Clause 8 to ensure that Ministers consider the need for functions to be exercised independently because they require professional or specialist expertise or impartial advice in respect of Ministers' policy, or because they involve establishing facts in relation to scrutiny of Ministers' actions. That set of amendments goes back to the Statement that I repeated in this House-if I remember correctly, it was 14 October-made by my right honourable friend Mr Francis Maude, as to the tests

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applied to public bodies. That must be placed on the face of the Bill, so that it is clear what test the Government apply in determining the validity of the independence of public bodies because of their functions.

The Delegated Powers and Regulatory Reform Committee's report on the Government's amendments states that the additional safeguards in Amendment 108 are still too limited. We take the report seriously and thank the committee again for its continued contribution to the debate on the Bill. On the important subject of safeguards, our amendments represent a proportionate response to the committee's original concerns. We will of course consider further the detailed points raised in the committee's second report and work with Peers to meet their concerns. On regulatory functions, the Government have already made it clear that they will not use the powers conferred by the Bill to make changes to network regulatory functions, and that such an exclusion is not necessary in the Bill.

In response to concerns raised on Second Reading, I have also tabled government amendments to make it clear that the necessary protections which the Minister must consider to be satisfied include the independence of the judiciary. I would like to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. However, given the concerns raised, I have included a specific reference to that principle.

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My noble friend Lord Lester's amendment, as he outlined, states that the powers in the Bill must be used in a way that is compatible with judicial independence and the exercise of judicial functions. My noble friend refers to my reference at Second Reading to the administration of justice and asks whether I will accept that this also needs to be reflected in the Bill. Again, the Bill does not amend or alter the independence of the administration of justice. I will, however, take away his concerns and reflect on whether this can also be reflected so that it is explicit, rather than implicit, in the Bill.

Given the particular concern of noble Lords, I undertook to look again at the inclusion of those bodies with a judicial function in Schedule 7. The whole House will remember the distinguished contribution at Second Reading of the noble and learned Lord, Lord Woolf, on this matter. We were fortunate again to hear his contribution today. I reassure noble Lords that I will, following further discussions, bring forward amendments in relation to those bodies for debate on that schedule later in Committee.

My noble friend Lord Lester also raises the issue of making an express provision to compel Ministers to act in accordance with the European Convention on Human Rights. This is unnecessary because, as he points out, the necessity for Ministers to act in accordance with those rights is protected by the Human Rights Act. The Bill does not and cannot amend those rights.

My noble friend made an important point about the notion of "necessary protection" in the Bill. I can confirm that this could extend to economic protection, health and safety protection, the protection of civil liberties, the environment and national heritage.



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On the issue of proportionality that my noble friend raises, I do not disagree that Ministers, in exercising their powers, should always aspire to be proportionate. Indeed, I do not think that the objectives to which the Minister must have regard in Clause 8 and to which my noble friend's amendment refers are likely to be achieved without it. Given that, and in consideration of the necessary protections in Clause 8(2), I am still inclined to think that the inclusion of a specific reference in the Bill to the need to use proportionate means to achieve these objectives is unnecessary. However, I understand that noble Lords are particularly concerned about this. The noble Lord, Lord Pannick, made an eloquent speech on this subject, and my noble friend Lord Campbell of Alloway also spoke on it. I understand the concern of noble Lords and others who have argued powerfully for the inclusion of the specific reference. I will therefore take this matter away and think further about it with a view to bringing forward amendments, if necessary.

My noble friend Lord Lester's Amendment 106 would apply the matters to be considered in Clause 8 to the powers in Clause 11. Orders made under those powers would move a public body from Schedule 7 to one of Schedules 1 to 6. In order for any changes then to be made under the provisions in Clauses 1 to 6, a second order, to which the requirements in Clause 8 would apply, would have to be made. The matters to be considered would therefore have to be applied before reforms could be made to bodies using the powers in Clause 11. For that reason, Clause 8 has not been applied to orders made under Clause 11. However, I will look again at whether there would be any benefit in extending Clause 8 to apply to the powers in Clause 11.

My noble friend Lord Lester tabled Amendments 109 and 110, which would amend the matters to be considered in Clause 8(2). This would take away the Minister's consideraton in determining whether an order removes necessary protections and replace it with a requirement that the Minister may make an order only if those conditions are "reasonably" met. The Government have also tabled an amendment to Clause 8(2) that ensures that a Minister may make an order only if they consider that the conditions that the order does not remove any necessary protections are satisfied. The Minister's consideration in determining whether the conditions are satisfied is important. The Minister is responsible and accountable for orders, and must justify how those conditions are met when laying a draft before Parliament. The Government's amendment strengthens the requirements in Clause 8(2) and strikes the right balance. The Delegated Powers and Regulatory Reform Committee's suggestion that this consideration should be for Parliament would not strike the right balance. It would remove the emphasis from Ministers, who should rightly ensure that their orders meet all relevant safeguards before they are introduced.

Amendments 14 and 107, in the name of the noble Baroness, Lady Hayter, would require Ministers, before bringing forward an order under Clauses 1 to 6, to have regard to the aims, objectives or functions of the body in question where they are specified in legislation. I agree with her objective of ensuring that the independence of a number of bodies is not undermined by the Government's approach to delivering important

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reforms in a timely and proportionate manner. The Government's amendments to Clause 8 substantively improve the Bill and require a much wider set of considerations for Ministers when bringing forward orders to effect change. They require them to consider not only the efficiency, effectiveness and economy of the exercise of public functions, but the importance of independence for particular functions and the protection of the independence of the judiciary. I hope that our proposed new protection for independence, in particular, will help to allay the noble Baroness's concerns.

I thank all noble Lords for their contributions to the debate. I thank my noble friend Lord Lester for his continued engagement on the Bill and in particular for his work on safeguards. He has been constructive in his approach and in his work with my officials to help make improvements to the framework in which these powers will operate. I want to continue working in a collaborative way and will reflect further on proportionality and the independence of the administration of justice. I ask my noble friend to withdraw his amendment.

Lord Lester of Herne Hill: My Lords, this has been a remarkable debate, with more than 20 speeches that will be read long after we are all dead, because the importance of this constitutional issue transcends anything that we are considering today. I am grateful to all noble Lords and to the Minister for their contributions. I will make no attempt to summarise or reply to the more than 20 speeches, although I will say that I find myself agreeing with almost everything in all of them.

Before I explain what I think is the right approach, I will respond to what the Minister has just said by noting the gains that we have made and those that we still need to make. I think that that is the most practical way of proceeding and I shall, I hope, do it quickly.

The Minister's first point was that he wants, through government Amendment 108, to amend the Bill to safeguard the independence of public bodies in exercising certain functions by amending Clause 8 to ensure that Ministers consider, and so on. The problem with that amendment, as several noble Lords have said, is that it relies on the subjective consideration of the Minister, and that, I think, is something to which we shall have to return.

The report of the Delegated Powers and Regulatory Reform Committee says that the additional safeguards in Amendment 108 are still too limited. The Minister helpfully explained that the Government take the report very seriously and that they are going to consider it and further detailed points, which is most welcome. He then made clear the necessary protections which the Minister must consider to be satisfied, including the independence of the judiciary. He explained that he wants to make it clear that the principle of judicial independence, as guaranteed by the Constitutional Reform Act, is not altered or weakened in any way by the Bill. That, of course, is the reassurance that one would hope for.

The Minister then dealt with my amendment which says that the powers must be exercised in a way that is compatible with judicial independence and the exercise of judicial functions. He indicated that he will take

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away my concerns and think about whether that can be reflected in the Bill. That is most welcome and I am grateful.

He then said that, given the concern expressed by noble Lords, he will look again at the inclusion of bodies with a judicial function in Schedule 7. He reassured us that he will bring forward amendments in relation to those bodies for a debate on the schedule later in Committee. Again, I think that the Committee will find that most welcome.

The Minister then mentioned human rights, pointing out that there is no need to refer to the convention rights in the Bill. However, that does not deal with the problem of rights going beyond the convention in common law and equity. That may be something that one needs to think about hereafter.

He then turned to the notion of necessary protection in the Bill, confirming that it extends to economic protection, health and safety, and the protection of civil liberties and the environment. That, again, is welcomed. He then turned to the important question of proportionality and said that he is still inclined to think that a specific reference to it is not needed in the Bill. I strongly disagree with that-a view that I think was expressed by several noble Lords.

The Minister dealt with the orders under Clause 11 and said that he would look again at whether there was any benefit in extending Clause 8 to apply to the powers in Clause 11. I think that most noble Lords hope that that will be done.

He then dealt again with the phrase "if the Minister considers". However, most noble Lords have indicated that that is not good enough. The Minister said that he thought the Government's amendment strengthening the requirements in Clause 8(2) struck the right balance, whereas he believed that the regulatory reform committee's suggestion that it should be for Parliament would not strike the right balance. That is clearly a matter for future debate.

The Minister then turned to the interesting points made by the noble Baroness, Lady Hayter, concerning her amendments. I think that the Minister may have misunderstood the noble Baroness's point. It is not about independence at all. She submitted that one needs to make sure that Ministers understand the core functions and raisons d'être of a particular organisation before they even think of exercising ministerial powers. That is something that the Minister may therefore want to consider.

I come to what is called the courage of my convictions. I do not need any instruction on the courage of my convictions, but I am a practical fellow and trying to think about what is the most sensible way forward. We all know that it is the practice of this House not to make amendments in Committee unless there is an extremely good reason for doing so. In this case, I want to leave breathing space between now and further proceedings in Committee-not between now and Report-to give the Government the opportunity to do the sort of things that the Minister has indicated today and which noble Lords around the Committee have also indicated. Having heard noble Lords speak, I do not think that Amendment 175 goes far enough.

23 Nov 2010 : Column 1038

If I divide the Committee, I will probably win on Amendment 1, but it will serve no practical purpose unless a clear series of safeguards follows.

5.15 pm

Lord Pannick: After a two-hour debate on matters of fundamental importance, does the noble Lord accept that it would be of value for the Committee's opinion to be tested so that the Minister-whose open attitude is much admired by all noble Lords-and the Government generally are left in no doubt of the Committee's views on the need for further essential safeguards to be written into the Bill?

Lord Lester of Herne Hill: I am grateful to the noble Lord for asking a question which I am trying to answer as I speak. The Minister will have heard everyone around the Committee. I am sure that some of us recall what was once said by Archbishop William Temple in a famous lecture: "Whenever I travel on the Underground I always intend to buy a ticket, but the fact that there is a ticket collector at the other end just clinches it". The Minister has heard the voice of a united Committee, and I am going to be pusillanimous and much criticised for my moderation in not dividing it. However, I do so as a friend and supporter of the coalition. Unless we get the amendments that have been asked for on all sides of the Committee, this Committee will act as the ticket collector rather than myself. If we are trying to achieve a constitutional Bill that we can pass, the right way to do that is not by flexing our muscles on Amendment 1 and proceeding on that basis.

Baroness Hayter of Kentish Town: Can the noble Lord explain the difference between the strength of feeling at Second Reading-which we agreed was very strong and very united, but not tested because of the protocols of this House-and the strength of feeling today? If I understand him, he feels that he has not yet been heard properly by the Government. Why does he think that the strength of feeling today is different from that on the previous occasion and, therefore, that it will be heeded on this occasion?

Lord Lester of Herne Hill: I do not think that it is different. If anything, it is stronger; but it is certainly as strong as it was on Second Reading. I am trying to consider how best to persuade the coalition Government, whom I support, to make these changes. I believe that we will have more influence by not dividing the Committee. Having said what I have said, I hope that noble Lords, except those who are dying to win a vote, will hold off for now so that we can come back quite strongly-

The Countess of Mar: Does the noble Lord appreciate that he might withdraw his amendment, but that the Committee might not agree that the amendment can be withdrawn when it is called?

Lord Lester of Herne Hill: I appreciate that. I ask noble Lords to consider that, if there were a vote, I would not be able to support it; and on that basis, I think it would be quite likely that, if my noble friends

23 Nov 2010 : Column 1039

agreed with me, the vote would be lost. That would be a misfortune. I think it is much better that we stay united and that the Government listen to the Committee as a whole rather than that we play games at this time in the afternoon.

Lord Soley: I understand the noble Lord's dilemma as we have discussed it before. If I were asked whether the Minister will try to help the Committee, I would answer yes, because I think that he really wants to. However, I do not think that that is the problem. I think the problem is that the Government have got themselves locked into a position where this Bill in its present form is necessary to them. I would like to lend strength to the argument of the noble Lord, Lord Taylor, and winning a vote would do that.

Lord Lester of Herne Hill: I am grateful to the noble Lord, but in the end I have to form a judgment about how we as creditors, coming to the aid of the Government who need our support, can best produce a stabilisation grant that will enable them to do so at a time where there is this great difficulty. My judgment is that by being moderate today, we will have more credit for the future. If I am mistaken, I promise Members of the Committee that I shall not be able to be as loyal as I am today to the discipline imposed on us. Having said all that-and it is not a threat, simply a promise-I beg leave to withdraw the amendment.

Noble Lords: No!

5.21 pm

Division on Amendment 1

Contents 235; Not-Contents 201.

Amendment 1 agreed.


Division No. 1


CONTENTS

Aberdare, L.
Adonis, L.
Ahmed, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Hill Top, B.
Armstrong of Ilminster, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L. [Teller]
Beecham, L.
Berkeley, L.
Best, L.
Bhattacharyya, L.
Bichard, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Boateng, L.
Boothroyd, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Bragg, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Browne of Ladyton, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell of Surbiton, B.
Carey of Clifton, L.
Chester, Bp.
Chorley, L.
Christopher, L.
Clancarty, E.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Condon, L.
Corbett of Castle Vale, L.
Coussins, B.
Craig of Radley, L.


23 Nov 2010 : Column 1040

Crawley, B.
Crisp, L.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Coity, L.
Davies of Oldham, L.
Deech, B.
Desai, L.
Dixon, L.
Donaghy, B.
Donoughue, L.
Drake, B.
D'Souza, B.
Dubs, L.
Eatwell, L.
Elder, L.
Elystan-Morgan, L.
Evans of Temple Guiting, L.
Exeter, Bp.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Fellowes, L.
Filkin, L.
Finlay of Llandaff, B.
Ford, B.
Foster of Bishop Auckland, L.
Foulkes of Cumnock, L.
Gale, B.
Gavron, L.
Gilbert, L.
Golding, B.
Gordon of Strathblane, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grenfell, L.
Grey-Thompson, B.
Griffiths of Burry Port, L.
Grocott, L.
Hannay of Chiswick, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayter of Kentish Town, B.
Healy of Primrose Hill, B.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollins, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howe of Idlicote, B.
Howie of Troon, L.
Hoyle, L.
Hughes of Stretford, B.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Hutton of Furness, L.
Hylton, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Judd, L.
Kennedy of Southwark, L.
Kennedy of The Shaws, B.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.
Kirkhill, L.
Knight of Weymouth, L.
Krebs, L.
Laming, L.
Layard, L.
Lea of Crondall, L.
Leitch, L.
Lewis of Newnham, L.
Liddell of Coatdyke, B.
Liddle, L.
Lipsey, L.
Lloyd of Berwick, L.
Lofthouse of Pontefract, L.
Low of Dalston, L.
McAvoy, L.
McConnell of Glenscorrodale, L.
McFall of Alcluith, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Mar, C.
Martin of Springburn, L.
Masham of Ilton, B.
Maxton, L.
May of Oxford, L.
Meacher, B.
Mitchell, L.
Moonie, L.
Morgan, L.
Morgan of Drefelin, B.
Morgan of Huyton, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Manchester, L.
Morris of Yardley, B.
Myners, L.
Northbourne, L.
Nye, B.
O'Loan, B.
O'Neill of Clackmannan, L.
Pannick, L.
Parekh, L.
Patel, L.
Patel of Blackburn, L.
Patel of Bradford, L.
Pendry, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prescott, L.
Prosser, B.
Quin, B.
Radice, L.
Ramsbotham, L.
Reid of Cardowan, L.
Rendell of Babergh, B.
Richard, L.
Rix, L.
Rooker, L.
Rosser, L.
Rowe-Beddoe, L.
Rowlands, L.
Royall of Blaisdon, B.
Sandwich, E.
Sawyer, L.
Scotland of Asthal, B.
Scott of Foscote, L.
Sewel, L.
Sherlock, B.
Simon, V.
Smith of Basildon, B.
Smith of Finsbury, L.
Smith of Gilmorehill, B.
Smith of Leigh, L.
Soley, L.
Stair, E.
Stern, B.


23 Nov 2010 : Column 1041

Stevenson of Balmacara, L.
Stoddart of Swindon, L.
Stone of Blackheath, L.
Strabolgi, L.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Bolton, B.
Tenby, V.
Thornton, B.
Tomlinson, L.
Touhig, L.
Triesman, L.
Tunnicliffe, L. [Teller]
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Walpole, L.
Walton of Detchant, L.
Warner, L.
Warnock, B.
Warwick of Undercliffe, B.
West of Spithead, L.
Wheeler, B.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Williamson of Horton, L.
Wills, L.
Woolf, L.
Woolmer of Leeds, L.
Young of Hornsey, B.
Young of Norwood Green, L.

NOT CONTENTS

Addington, L.
Alderdice, L.
Anelay of St Johns, B. [Teller]
Arran, E.
Ashdown of Norton-sub-Hamdon, L.
Astor of Hever, L.
Attlee, E.
Avebury, L.
Baker of Dorking, L.
Ballyedmond, L.
Barker, B.
Bates, L.
Bell, L.
Benjamin, B.
Bew, L.
Black of Brentwood, L.
Bonham-Carter of Yarnbury, B.
Boswell of Aynho, L.
Bowness, L.
Bradshaw, L.
Bridgeman, V.
Brooke of Sutton Mandeville, L.
Brookeborough, V.
Brougham and Vaux, L.
Browning, B.
Burnett, L.
Buscombe, B.
Caithness, E.
Carrington, L.
Cathcart, E.
Cavendish of Furness, L.
Chadlington, L.
Chidgey, L.
Colwyn, L.
Cope of Berkeley, L.
Cotter, L.
Courtown, E.
Craigavon, V.
Crathorne, L.
Crickhowell, L.
De Mauley, L.
Deben, L.
Denham, L.
Dholakia, L.
Dixon-Smith, L.
Dykes, L.
Eccles, V.
Eccles of Moulton, B.
Eden of Winton, L.
Elton, L.
Falkland, V.
Faulks, L.
Fearn, L.
Feldman, L.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Fraser of Carmyllie, L.
Freeman, L.
Freud, L.
Garden of Frognal, B.
Gardiner of Kimble, L.
Garel-Jones, L.
Geddes, L.
German, L.
Glenarthur, L.
Glentoran, L.
Goodlad, L.
Goschen, V.
Greenway, L.
Griffiths of Fforestfach, L.
Hamwee, B.
Hanham, B.
Harris of Richmond, B.
Henley, L.
Higgins, L.
Hill of Oareford, L.
Hodgson of Astley Abbotts, L.
Hooper, B.
Howard of Lympne, L.
Howard of Rising, L.
Howe, E.
Howe of Aberavon, L.
Howell of Guildford, L.
Hunt of Wirral, L.
Hurd of Westwell, L.
Hussein-Ece, B.
Inglewood, L.
James of Holland Park, B.
Jenkin of Roding, L.
Jones of Cheltenham, L.
Jopling, L.
Kilclooney, L.
Kimball, L.
Kirkwood of Kirkhope, L.
Knight of Collingtree, B.
Laird, L.
Lang of Monkton, L.
Lawson of Blaby, L.
Lee of Trafford, L.
Lester of Herne Hill, L.
Lindsay, E.
Linklater of Butterstone, B.
Liverpool, E.
Lothian, M.
Lucas, L.
Luce, L.
Luke, L.
Lyell, L.
McColl of Dulwich, L.


23 Nov 2010 : Column 1042

MacGregor of Pulham Market, L.
Mackay of Clashfern, L.
Maclennan of Rogart, L.
McNally, L.
Mancroft, L.
Maples, L.
Mar and Kellie, E.
Marland, L.
Mawhinney, L.
Methuen, L.
Montrose, D.
Moore of Lower Marsh, L.
Morris of Bolton, B.
Naseby, L.
Neville-Jones, B.
Newby, L.
Newton of Braintree, L.
Noakes, B.
Northover, B.
Norton of Louth, L.
O'Cathain, B.
Palumbo, L.
Parminter, B.
Patten, L.
Patten of Barnes, L.
Perry of Southwark, B.
Phillips of Sudbury, L.
Pilkington of Oxenford, L.
Popat, L.
Rawlings, B.
Razzall, L.
Reay, L.
Renfrew of Kaimsthorn, L.
Rennard, L.
Renton of Mount Harry, L.
Ritchie of Brompton, B.
Roberts of Conwy, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Rogan, L.
Ryder of Wensum, L.
St John of Bletso, L.
St John of Fawsley, L.
Sassoon, L.
Scott of Needham Market, B.
Seccombe, B.
Selborne, E.
Selkirk of Douglas, L.
Sharman, L.
Sharples, B.
Shaw of Northstead, L.
Sheikh, L.
Shephard of Northwold, B.
Shipley, L.
Shrewsbury, E.
Shutt of Greetland, L. [Teller]
Skelmersdale, L.
Smith of Clifton, L.
Spicer, L.
Stedman-Scott, B.
Steel of Aikwood, L.
Strathclyde, L.
Taverne, L.
Taylor of Holbeach, L.
Tebbit, L.
Thomas of Gresford, L.
Thomas of Swynnerton, L.
Thomas of Walliswood, B.
Tonge, B.
Tope, L.
Tordoff, L.
Trefgarne, L.
Trenchard, V.
Trimble, L.
Trumpington, B.
Tugendhat, L.
Tyler, L.
Ullswater, V.
Vallance of Tummel, L.
Verma, B.
Waddington, L.
Wade of Chorlton, L.
Wakeham, L.
Waldegrave of North Hill, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Warsi, B.
Wei, L.
Wilcox, B.
Younger of Leckie, V.
5.36 pm

Amendment 2

Moved by Baroness Royall of Blaisdon

2: Clause 1, page 1, line 3, at beginning insert "Subject to the provisions of section (Duration of this Act),"

Baroness Royall of Blaisdon: In moving Amendment 2, I shall speak also to Amendment 181. These amendments would introduce a sunset clause to the Act, which would mean that it will automatically expire five years after coming into force. As a natural consequence, the powers of Ministers to make orders abolishing or fundamentally changing these bodies will also expire at this time. It was the Second Reading speeches of the noble Lords, Lord Norton of Louth and Lord Kirkwood of Kirkhope, and of the noble Viscount, Lord Eccles, that made me reflect further on the wisdom of a sunset clause for the Bill, as did the first report of the Delegated Powers and Regulatory Reform Committee. The effect of a sunset clause is to set a deadline for the end of this legislation in the event that Parliament decides to enact it into law. It is a prudent step in relation to this Bill.



23 Nov 2010 : Column 1043

My reasons for tabling the amendments are twofold. First, like noble Lords on all sides of the Chamber, we agree that many arm's-length bodies play an important part in our public governance and public life. However, they must be effective and efficient and they must not be set in aspic. We must be able to improve and streamline them, as the noble Lord, Lord Renton of Mount Harry, said in our earlier debate. There needs to be a sensible alternative to the status quo, which is what the Labour Government were developing in our March White Paper. When we were in office we managed to cut the bodies which had come to the end of their usefulness-to which my noble friend Lord Warner can give testament-and we recognise that there must be a means by which this can be done. We do not agree with the Bill in its present form, but if we are able to amend it in an acceptable way, then, like the noble Lord, Lord Norton, and others, we believe that it would be appropriate to consider a Public Bodies Bill in each Parliament to enable tangible proposals to be put forward and properly scrutinised by both Houses. In this way, we will continue to recognise the importance of bodies being accountable not to the Government or the Minister of the day but to Parliament.

Secondly, I reiterate the sentiments of my noble friend Lady Andrews which she expressed so cogently during the debate on Second Reading. She said:

"We have a Bill that brings with it a threat of future changes that are as yet unknown either to the institutions identified or to the Ministers in place".-[Official Report, 9/11/10; col. 86.]

The noble Baroness, Lady O'Loan, observed earlier that this Bill places many organisations in peril. It is not appropriate to continue an indefinite threat to the bodies listed in any of the schedules to the Bill, and Clause 11 and Schedule 7 are particularly insidious. They are a feature of the Bill that noble Lords have quite appropriately labelled as "pernicious", a "zombie list" and a "death row for quangos". The noble and learned Lord, Lord Woolf, made another powerful speech today, as did the noble and learned Baroness, Lady Butler-Sloss. How can a body such as the Gangmasters Licensing Authority be on Schedule 7?

The Minister was asked repeatedly during the Second Reading debate what bodies were included in Schedule 7, what the rationale was and what the Government's criteria were for establishing that status. The Minister did not answer the points during the debate but, understandably, he promised to come back at the Committee stage with amendments to address the concerns expressed. He has indeed tabled amendments, but none of them addresses the underlying concerns about why bodies are included in Schedule 7, or why they, their staff and the people they serve are made to live with constant insecurity. If the Minister was serious about the concerns-as I believe he was-he would have recognised more fully that the only way of addressing them is to table an amendment to delete Clause 11 and Schedule 7. He has not done this and the safest way to proceed is with a sunset clause, even if, as I hope, later in the proceedings the Minister either accepts the amendments to Clause 11 and Schedule 7 or the clause and the schedule are defeated.

It is not right and proper that the powers granted by the other schedules are left unchecked for Parliament after Parliament. The noble Viscount, Lord Eccles,

23 Nov 2010 : Column 1044

said at Second Reading that a sunset clause would hold the Government's feet to the fire and ensure that they acted. I am sure that this is correct. It would also ensure that in each Parliament specific organisations are considered. I would hope that this would follow consultation and would not be out of the blue, but there would be an opportunity in that case for proper parliamentary scrutiny and debate, something which we are denied by this Bill.

I also wonder what consideration is being given to the many new quangos which have already been announced by the coalition Government. It may be that this Government or some future Government would wish to consider their viability in the long term, and it may be that a Public Bodies Bill in each Parliament would enable Parliament to address the viability of the bodies which are now being created.

I learned the value of sunset clauses from the Constitution Committee of your Lordships' House in discussions before, during and after publication of its excellent report, Fast-track Legislation: Constitutional Implications and Safeguards. It took me a while, but I got there in the end and fully accepted what the Constitution Committee was wisely telling us. One of the reasons for a sunset clause in expedited legislation is that such legislation is, by necessity, hastily drafted. There is no necessity here for hasty drafting. The Government have given no clear reason why we are being asked to consider a Bill that has been so hastily drafted. Indeed, the Minister seems to have tabled an almost unprecedented number of stand-part interventions to oppose clauses of his own Bill. We all agree that a great deal of change needs to be made to the Bill and we shall be testing the strength and coherence of those amendments during the course of the debate, as we shall with our amendments and those of other noble Lords.

As has been said repeatedly today, the Bill fundamentally alters the balance of power between the Executive and Parliament with its "misconceived delegated powers". It is sidelining Parliament by legislation. I recommend Amendments 2 and 181 as both reasonable and necessary so that we strike the right balance between accountability to Parliament and an ongoing public bodies review regime. I think the vast majority of noble Lords believe that it is right and proper to keep these bodies under review. I beg to move.

5.45 pm

Lord Taylor of Holbeach: My Lords, these amendments of the noble Baroness, Lady Royall, and the noble Lord, Lord Hunt, would have the effect of time-limiting the Bill for a period of five years following Royal Assent. After this time the Bill would expire and Ministers would no longer be able to make use of the order-making powers within it to make changes to public bodies. I recognise, as the noble Baroness did when presenting them to the Committee, that these amendments have their origins in the Second Reading debate and the contributions of a number of my noble friends explaining why they thought that a sunset clause might be a good idea. The Constitution Committee also suggested that in its report, as well as suggesting that the Bill's order-making powers are broad and not balanced by appropriate safeguards and parliamentary scrutiny. That was its position.



23 Nov 2010 : Column 1045

The government amendments address these concerns. They protect the independent exercise of important public functions and give Parliament an enhanced role in scrutinising orders made using the Bill. In doing so, they provide great reassurance that both this and future Governments will use the Bill's powers in the responsible and considered manner that I know your Lordships would expect.

By sunsetting the Bill as the amendments propose, Parliament would be denying the opportunity to use the Bill to make changes to public bodies following the five-year period. This seems to me a disproportionate response. I recognise noble Lords' concerns about the Bill-and we have acted to address those concerns-but I also recognise the wide support for the policy intent not only in Parliament and among the general public but, indeed, on the Benches opposite, as the noble Baroness, Lady Royall, said in her remarks about the need to review public bodies.

The Government's preferred approach is to pass a Bill which allows the flexibility to make changes to public bodies quickly when it is in the public interest, but which also ensures the protection of important public functions and allows for full consultation and parliamentary scrutiny. However, there is a strength of feeling in the Committee that the Bill and the powers in relation to the relevant schedules should not be open-ended, and I must take account of that.


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