Public Bodies Bill [HL]|
1. The Constitution Committee is appointed "to
examine the constitutional implications of all public Bills coming
before the House; and to keep under review the operation of the
constitution." In carrying out the former function, we endeavour
to identify questions of principle that arise from proposed legislation
and which affect a principal part of the constitution.
2. The Public Bodies Bill [HL] was introduced
in the House of Lords on 28 October 2010; its second reading debate
is scheduled for 9 November 2010. The Bill follows from the Cabinet
Office review of public bodies.
3. The Bill grants extensive powers to Ministers
to abolish, to merge, to modify the constitutional arrangements
of, to modify the funding arrangements of, to modify or transfer
the functions of, or to authorise delegation in respect of a very
significant number and range of public bodies, as listed in the
Schedules to the Bill.
4. The majority of these public bodies were created
by statute (some were created by Royal Charter). Thus, the Bill
vastly extends Ministers' powers to amend primary legislation
by order. Such powers are commonly referred to as 'Henry VIII'
powers. We have several times in recent years reported on the
extended use of such powers.
As we have previously acknowledged, while they may have become
an established feature of the law-making process in this country,
they remain a 'constitutional oddity'.
That is: they are pushing at the boundaries of the constitutional
principle that only Parliament may amend or repeal primary legislation.
5. Where the further use of such powers is proposed
in a Bill, we have argued that the powers must be clearly limited,
exercisable only for specific purposes, and subject to adequate
When assessing a proposal in a Bill that fresh Henry VIII powers
be conferred, we have argued that the issues are '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'.
In our view, the Public Bodies Bill [HL] fails both tests.
The point of principle
6. The Government has not made out the case as
to why the vast range and number of statutory bodies affected
by this Bill should be abolished, merged or modified by force
only of ministerial order, rather than by ordinary legislative
amendment and debate in Parliament. As we have said, and as is
axiomatic, the ordinary constitutional position in the United
Kingdom is that primary legislation is amended or repealed only
by Parliament. Further, it is a fundamental principle of the constitution
that parliamentary scrutiny of legislation is allowed to be effective.
While we acknowledge that exceptions are permitted - as in the
case of fast-track legislation, for example - we have also sought
to ensure that such exceptions are used only where the need for
them is clearly set out and justified.
As we have said, the use of Henry VIII powers, while accepted
in certain, limited circumstances, remains a departure from constitutional
principle. Departures from constitutional principle should
be contemplated only where a full and clear explanation and justification
Safeguards and limitations
7. Under clause 10, ministerial orders to abolish,
merge, or modify (etc) a public body are subject to the affirmative
resolution procedure. This is a necessary procedural safeguard
(and, as such, we welcome it) but of itself it is far from sufficient.
Two comments may be made in this regard. First, unlike in the
Legislative and Regulatory Reform Act 2006, no mention is made
in the Public Bodies Bill [HL] of 'super-affirmative resolution
procedure' (see section 18 of the 2006 Act). This procedure requires
Ministers to take into account any representations, any resolution
of either House, and any recommendations of a parliamentary committee,
in respect of a draft order (a draft order being laid for a period
of 60 days). Secondly, and again unlike in the Legislative and
Regulatory Reform Act, there is in the Public Bodies Bill [HL]
no requirement on Ministers to consult with interested or affected
parties before an order is made. This strikes us as an unacceptable
omission. Under the Legislative and Regulatory Reform Act (section
12) not only must there be consultation, but following that consultation
the Minister must lay his order in draft, and it must be accompanied
by an explanatory document.
8. Furthermore, the Bill as drafted appears to
allow for the rolling up in a single ministerial order of changes
to a number of diverse public bodies. Such bodies may even operate
in unrelated policy domains. We are concerned that "omnibus
orders", covering a disparate range of institutions, pose
yet more difficulties in terms of effective parliamentary scrutiny.
9. We note that, under clause 8(2), an order
to abolish, merge or modify (etc.) may neither 'remove any necessary
protection' nor 'prevent any person from continuing to exercise
any right or freedom which that person might reasonably expect
to continue to exercise'. While we welcome these provisions, we
are concerned whether they go far enough as safeguards. They are
drawn from the safeguards contained in the Legislative and Regulatory
Reform Act 2006, section 3(2). But it is to be noted that there
are several further safeguards included in that Act which are
absent from the present Bill. These include the following: that
the effect of the order is proportionate to the policy objective,
that the order strikes a fair balance between the public interest
and interests of any person adversely affected by it, and that
the order is not of constitutional significance.
10. Clause 9 limits the powers of UK Ministers
in relation to devolved matters. Orders made under clauses 1-6
which contain provision that would be within the legislative competence
of the Scottish Parliament, the Northern Ireland Assembly or the
National Assembly for Wales require the consent respectively of
Scottish Ministers, the appropriate Northern Ireland Department
or the Welsh Ministers. We are concerned that it should be the
consent of the Scottish Parliament, the Northern Ireland Assembly
and the National Assembly for Wales which should be obtained in
these circumstances. We note that the protection afforded to the
devolved institutions is considerably stronger in sections 9-11
of the Legislative and Regulatory Reform Act 2006 than that which
is offered in this Bill.
11. Under clause 11 Ministers have the power
to add any public body listed in Schedule 7 to the range of bodies
over which the Bill confers powers to abolish, merge, modify (etc.).
We note that the Bill makes no provision safeguarding the continuing
independence of these bodies.
12. The House will recall various occasions in
recent years on which Parliament has sought to resist Executive
proposals for wide-ranging Henry VIII powers. In the last Parliament,
both the Constitution Committee and the Delegated Powers and Regulatory
Reform Committee expressed their concerns in a series of reports,
most notably as regards the Legislative and Regulatory Reform
Bill. In the event, that Bill was very considerably amended in
the light of criticism from many sources, so reflecting and reinforcing
the fundamental constitutional requirement of detailed legislative
scrutiny. In our report
on that Bill, we underlined
the then Minister's eventual acceptance of the fact that:
"Our subject matter is sensitive, because it
[is] not just about what the Government of the day might want;
it also takes us into the realm of the relationship between Government
and Parliament, and Parliament's proper role in the scrutiny and
approval of Government proposals in this sphere".
13. The Public Bodies Bill [HL] strikes at the
very heart of our constitutional system, being a type of 'framework'
or 'enabling' legislation that drains the lifeblood of legislative
amendment and debate across a very broad range of public arrangements.
In particular, it hits directly at the role of the House of Lords
as a revising chamber.
14. The Public Bodies Bill [HL] is concerned
with the design, powers and functions of a vast range of public
bodies, the creation of many of which was the product of extensive
parliamentary debate and deliberation. We fail to see why such
parliamentary debate and deliberation should be denied to proposals
now to abolish or to redesign such bodies.
15. The Committee will closely monitor the progress
of the Bill and may report again to the House.
1 For the ministerial statement on the Cabinet Office
review, see HL Deb, 14 October 2010, cols 622-33. Back
See, most recently, our report on the Digital Economy Bill, 6th
report of 2009-10, HL 40. Back
See our report on the Legislative and Regulatory Reform Bill,
11th report of 2005-06, HL 194, para 34. Back
Ibid, para 35. Back
See our report on Fast-track Legislation, 15th report of 2008-09,
HL 116, especially para 186. Back
We have previously expressed similar concerns in the context of
Welsh Legislative Competence Orders: see our 13th report of 2008-09,
HL 105. Back
For a thorough analysis, see P. Davis, 'The significance of parliamentary
procedures in control of the executive: the passage of Part 1
of the Legislative and Regulatory Reform Act 2006'  Public
Law 677. Back
Constitution Committee, 11th report of 2005-06, HL 194, para 3. Back