Paul Thompson's Public Bodies (Reform) Blog

The blog will focus in particular on the Public Bodies Bill and will follow the Bill through to its enactment and implementation whilst commenting on related legal and policy developments over the coming months. It is being written from a non-partisan stance and, insofar as it contains criticism of what is proposed, is intended to do so from the point of view of a detached observer. Whilst the blog appears in my name, it is being written with the assistance of colleagues here and I happily acknowledge their considerable help in what is very much a collective effort.

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30: Public Bodies Bill completes committee stage in Lords

10th March 2011

At last, half an hour after midnight this morning, the Bill completed its Committee Stage (see here).

Highlights of this final session included agreement to the Government's amendment No. 118 and, with all party support, Lord Lester's amendment No. 1175ZA (replacing the earlier amendment no.175). Amendment No.118 (which, in its revised substituted form, makes it explicit, in response to the Delegated Powers Committee's sixth report, that the enhanced procedure can be activated by a recommendation of a committee of either House) introduces a requirement for orders to be laid with a reasoned explanatory document and to be subject to super-affirmative procedure. Amendment 175ZA introduces a legally enforceable requirement preventing orders being made concerning specified judicial, enforcement and scrutiny functions from being exercised independently. The forestry provisions and, as Lord Taylor described it, "the waiting room" of Schedule 7 were also deleted , as the Government had earlier agreed to. Incidentally, despite how this is reported in Hansard (which is a mistake:see column 1738), clause 11 was also deleted.

Other particularly noteworthy elements included amendment 113ZA substituting the Scottish Parliament, Welsh Assembly and Northern Ireland Assembly as the relevant consenting bodies where consent is required in place of the Scottish Executive, Welsh Ministers and the relevant Northern Ireland department, confirmation that the Government is committed to a Grocers Code adjudicator and to enforcing a groceries code of practice with a draft bill to be produced in due course (see debate on amendment No.85A) and that the Government will continue to meet British Waterways funding until 2022-23 (see debate on amendment No.86).

It was also revealed that there will be consultation on the transfer of HFEA and HTA functions in 2011, with the preparation of draft orders following in 2012-13 (see debate on amendment No.92). In relation to consultation, Lord Taylor of Holbeach for the Government also indicated that "The Government also accept that in some cases it is completely appropriate to consult the public in relation to such proposals. For example, I can confirm to the Committee that the Department for Business, Innovation and Skills intends to consult this year on its proposed changes to competition bodies. We discussed that earlier this evening. It will be a public consultation. The Government Equalities Office will soon publish its consultation document on reform of the Equality and Human Rights Commission. Later this year, Defra will issue a public consultation on its plans to replace British Waterways with a charitable body."

Lord Taylor also confirmed that the Government is committed to considering further the possibility of a sunset clause for the bill at report stage.

The bill will now proceed to report stage on 23 and 28 March and, whilst there is also a separate third reading stage in the Lords when amendments can be taken, it looks very much as if the the intention is to complete all stages in the Lords before the Easter recess so that the bill can commence its passage through the Commons when it comes back on 26 April and then move through to royal assent before the summer recess at the end of July.

Here is a revised Amendment Scorecard for the Public Bodies Bill:

Amendments agreed: Nos.1, 26, 47, 64, 68, 72A, 74A, 76, 79A, 105ZA,113ZA, 113AA-AB,113BA-BC,113E,114, 118, 175ZA,175C,175D,175E,179 and 182.

Amendments disagreed: No.17.

Amendments not moved: Nos. 5, 9-14, 16, 16A, 21, 24, 32, 34-36, 40, 42, 45, 50-58, 60A, 67A &B, 69, 69A, 74, 74B and 75, 77 77A-79, 80, 81, 102-105,107,113,113D, 114A-117,118A-B, 119, 121, 122,124,125A, 131, 134-134ZA, 137D, 138,139A, 140,141, 141A,144,145, 146,148A, 150-153,154,154A-B,155,156,158,159,160A,161,163,164,165A,166,166BZA, 166BA-EA,166EB-G,168A-D,174ZA-ZB,174AB, 175ZB, 176,177,178,180 and 181.

Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22, 23, 23A., 25, 27, 28, 29, 30, 31,33. 36A,37,39, 41, 43, 44, 46,59 and 61, 62, 63, 65, 65A, 66, 66A, 67, 70, 70A, 71, 72, 73, 82, 105A,106A, 108, 111,112,113A-B,113C, 120,123,125,126,131A-133A,136A-C,139, 139ZA,139B,140A,142,142ZA,143,143A,146A-148,149,149A,153A,154YA-ZB,154C,157,157A,159ZA-160,160,160B,161A,162,163A-E,164A,165,165AZA-B,166ZA,166A-B,166BZB,167,168,169-174 and 175(replaced by 175ZA).

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29: Public Bodies reform gathers pace

8th March 2011

In a wide ranging debate yesterday (see here), starting just after 3pm and extending until just after 1am, the Lords managed to complete consideration of Clauses 2 to 4 , Schedules 1, 2 and 3 and much of Schedule 4 to the Public Bodies Bill.

Bodies discussed included the General Lighthouse Authorities (out of Bill now that Schedule 7 has been deleted), the Victims Advisory Panel (to be abolished), the Youth Justice Board (functions to be transferred to the Ministry of Justice), the UK Film Council and BFI (outside scope of the Bill), the Central Arbitration Committee and Certification Officer ( to be merged), the Gambling Commission and National Lottery Commission (to be merged), the Theatres Trust (appointments by Secretary of State to be removed), the DWI (new powers proposed to enable recovery of costs from the water industry), the Broads Authority and National Park Authorities (constitutional changes possible but subject to ongoing consultation), the Church Commissioners (outside scope of the Bill), the Commission for Equality and Human Rights (CEHR) (to be reformed following consultation), Internal Drainage Boards (possible transfer of functions to them, and the Environment Agency to take over responsibility for determining non-contentious changes to areas, amalgamations and main river designations), the Joint Nature Conservation Council (to be streamlined), the Marine Management Organisation, Natural England and Ofcom (improved charging powers).

Whilst there were no divisions, it looks as if the Government's position on the Youth Justice Board in particular will be further tested on report (ie the next stage of the Bill in the Lords).

The debate also saw discussion of the group of amendments in the name of the Lord Whitty which, as summarised by Lord Taylor of Holbeach for the Government, would require that, before laying an order under Clauses 2 to 6, a Minister must lay before Parliament a report setting out the reasoning for any change in the status of a body or bodies he or she proposes to make, with the said report being subject to debate and approval by resolution in each House; amendment 119 then introducing an additional requirement for a report where an order affects a body or office within a particular set of categories. Though ultimately withdrawn, the whole subject of parliamentary scrutiny remains at large and will be returned to, in particular when amendment 114, 118 and 175 is reached at the next sitting.

Two assurances given during the course of the debate, being reiterations of earlier assurances given, were also particularly noteworthy, namely:

In relation to the CEHR,: "The Government made it clear in their announcement of 14 October that they intend to retain but substantially reform the commission, refocusing it on its core functions of regulating equality and anti-discrimination law in Great Britain, fulfilling EU equality requirements and being a national human rights institution under the United Nations. We also intend that it should provide better value for the taxpayers' money spent on it-something that it has so far failed to do."

In relation to Ofcom: " As I said at Second Reading-I am happy to reiterate it-the Government intend the economic and regulatory functions of bodies such as Ofcom and Ofgem to be excluded from the powers of the Bill for precisely this reason. I do not believe that it is necessary to place such a requirement in the Bill, because the Government expect Ministers to consider such issues as a matter of course and because our Amendment 118,which requires Ministers to produce an explanatory document with a draft statutory instrument setting out the reasons for an order, will provide another opportunity to inform Parliament of such matters."

The Committee next meets tomorrow, 9 March and the committee stage may then be completed. See now the 9th marshalled List of Amendments (here) the new amendments 114 (consultation) and 118 (procedure) in the name of Lord Taylor of Holbeach being of particular note.

Meanwhile, in the Commons yesterday, Bob Neill indicated that from 1 April 2011, the London Thames Gateway Development Corporation's planning functions in the London Riverside area will be returned to the London boroughs of Barking and Dagenham, Havering, and for part of Newham.  He indicated that "This important first step towards complete localisation will be effected by the London Thames Gateway Development Corporation (Planning Functions) (Amendment) Order 2011 which I am laying before Parliament today."

Today has also seen the publication of the 11th report of the Delegated Powers and Regulatory Reform Committee, on the government amendments to the Public Bodies Bill (see here). Its key conclusion is that:

"In conclusion, the Committee welcomes the further amendments which have been tabled by the Government. However, these further amendments do not meet the concerns that the Committee has already reported about the exceptionally wide delegated powers which remain in clauses 1 to 5 and 13 of the Bill. The Committee therefore remains of the view that, as the Bill stands, those clauses are not appropriate delegations of legislative power. The Committee also invites the House to consider carefully the Government's revised "enhanced" procedure for orders under the Bill."

Further afield, it should be noted that the Yes vote in the referendum in Wales held on 3 March (517,132 to 297, 380) means that the Welsh Assembly will be able to make laws on all matters in the 20 subject areas it has powers for, without needing the UK Parliament's agreement. This fundamentally affects how public bodies reform will now proceed in Wales.

Here is a revised Amendment Scorecard for the Public Bodies Bill:

Amendments agreed: Nos.1, 26, 47, 64, 68, 72A, 74A, 76 and 79A
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16, 16A, 21, 24, 32, 34-36, 40, 42, 45, 50-58, 60A, 67A &B, 69, 69A, 74, 74B and 75, 77 77A-79, 80 and 81 .
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22, 23, 23A., 25, 27, 28, 29, 30, 31,33. 36A,37,39, 41, 43, 44, 46,59 and 61, 62, 63, 65, 65A, 66, 66A, 67, 70, 70A, 71, 72, 73 and 82.

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28: Schedule 7 bites the dust, whilst waterways to be dealt with in two phases

1 March 2011

In what is a remarkable turnaround, Lord Taylor of Holbeach announced at the start of the resumed Committee proceedings on the Public Bodies Bill yesterday (see here) that the Government is agreeing to the deletion of clause 11 and Schedule 7 (being the provisions which would have enabled a wide range of public bodies to be brought by order within one or more of the other Schedules that allow abolition or change by order). He went on to indicate that "a small number of amendments" to move some bodies listed in Schedule 7 into other Schedules to "ensure that all reforms announced as part of last year's review of public bodies can be implemented" will be made "at a later stage in the bill's passage" (a phrase that suggests that this could be in the Commons).

Lord Taylor also confirmed that discussions are ongoing, particularly with Lord Lester of Herne Hill and Lord Mackay respecting amendment 175 and its proposals for bolstering the parliamentary procedure for scrutiny of orders made under the Bill, Lord Lester indicating that in his view the House will need to be quite sure that the safeguards in amendment 175, or something very close to them, are in place before the Bill leaves Committee.

Together with the prospective deletion of the forestry clauses from the Bill, which the Government formally confirmed its agreement to during the debate, the Bill is now set to become a shadow of its former self, with the more extreme elements of its "Henry VIII" style powers effectively removed.

Early on in the debate, Lord Taylor of Holbeach also made an interesting assurance respecting charities: "I make it absolutely clear that the Government have not considered , nor would they ever consider, using the Bill to transfer functions to charities without their consent or make consequential changes to their consitution without such consent".

Yesterdays debate also involved discussion of the fate of NESTA, ie the National Endowment for Science, Technology and the Arts (to be re-constituted as a charity), the Railways Heritage Committee (proposed to be abolished and its power of designation transferred to the board of trustees of the Science Museum), the RDAs (still due to be abolished) and the Securities Industry Authority (to be replaced by a new self regulating industry regime but not before the 2012 Olympics). Given continuing concerns from various peers, the fate of NESTA, the RDAs and the SIA are now likely to be returned to on Report.

In a separate development (see here), Richard Benyon announced by way of a Written Statement that the Government is convinced that there is a compelling case for a national trust for the waterways that includes the British Waterways and the Environment Agency navigations but that it wished to proceed by way of a phased approach, with the Environment Agency navigations being transferred in a phase 2 if sufficient funding can be found in the next Spending Review to enable the charity to take on the liabilities associated with them in 2015-16, and subject to the agreement of the charity's trustees.

Here is a revised Amendment Scorecard for the Bill:

Amendments agreed: Nos.1, 26 and 47
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16, 16A, 21, 24, 32, 34-36, 40, 42, 45, 50-58 and .
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22, 23, 23A., 25, 27, 28, 29, 30, 31,33. 36A,37,39, 41, 43, 44, 46 and 59.

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27: Public Bodies Bill out of the woods?

18th February 2011

The Government's remarkable turnaround on the sale of the Forestry Commission's forests in England means that clauses 17 to 19 (powers in relation to forestry) will now go, Caroline Spelman confirming in her statement to the Commons yesterday not only that the Defra consultation will be brought to an immediate end and that it will now establish an independent panel to consider forestry policy in England but also that the Government will support the removal of the forestry clauses from the Bill.

Lord Greaves had  already tabled some time ago notice to oppose the retention of these clauses or, as it is called in parliamentary jargon, the Question that they should stand part of the Bill. Whether this also means that the Government will agree to the Forestry Commission being removed from Schedule 7 (bodies capable of being added to other Schedules) I am not yet too sure about but presume not.  However, Lord Greaves also has an amendment tabled (No.145) for its deletion from Schedule 7.

For more from Defra on the subject of the Forestry Commission, see here.

The change of heart on Forestry Commission sales should certainly help oil the wheels of the Committee proceedings which have been grinding pretty slowly but there is much to do yet. As well as a 7th day booked in for February 28, Monday 7 and Wednesday 9 March are now also pencilled in as possible future days.

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26: Public Bodies Bill to get back on track

15th February, 2011

After a rather lengthy sojourn whilst the Lords has kept busy with the voting reform legislation (and the last entry on this blog appeared as long ago as 28 January) the Public Bodies Bill is now due to re-commence its Committee proceedings in the Lords on Monday 28 February. This is the first day the Lords is back from next week's break, now called the February recess ( it used to be known as the constituency week).

Additional amendments have been tabled by, amongst others, Lord Hunt of Kings Heath for Labour (see here) to add further elements to the proposed Parliamentary procedure for scrutinising orders, including the facility for committees scrutinising orders to recommend that they be amended or even that the proposals should only proceed by way of a bill, and to enable revised orders to be laid.

Meanwhile, as reported widely in the press, the wider public debate on disposal of Forestry Commission assets continues and included an Opposition Day debate in the Commons on 2 February (the Opposition motion was lost and the Government's amendment to it won by 310 votes to 260 and 301 votes to 253 respectively: see here). Subsequently, Defra announced (see here) the temporary suspension of the Spending Review forestry sales until extra protections on access and biodiversity are put in place (whilst making clear that its intention is that, once this has happened, the sales will go ahead).

Generally, it has been a quiet month though there was a joint union lobby on the Bill, organised by PCS, Unite, Unison, Prospect and GMB on 9 February, to ask the government to Stop Listen and Think Again.

In terms of the wider public sector agenda, we have also now seen the Prime Minister re-assert his commitment to the Big Society concept and the Cabinet Office publish its new strategy for the Big Society Bank and announce the first payments from the £100m Transition Fund that is intended to provide vital support to charities. Additionally, we have the Cabinet Office's quarterly status check on public bodies (as at 31 January: see here) indicating that to date 26 of the public bodies reviewed are now either no longer an NDPB, Public Corporation or Non-Ministerial Department.  Also, there has been published a new enhanced protocol for departmental boards (see here).

But much of the government's agenda for public sector reform is dependent on the Public Bodies Bill and, so, progress with it remains a necessary condition for many of the proposed changes. Given that it was proposed and Labour did accept on Second Reading that it should be possible to complete Select Committee proceedings on the Bill by 28 February, if the Government had been prepared to agree to a Select Committee rather than a Committee of the Whole House, maybe the Government is now regretting not going along with that suggestion.

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25: Labour to challenge Forestry Commission sell-off in the Commons next week

28th January 2011

Labour has now tabled the following motion in relation to the proposed Forestry Commission sell-off for debate in the Commons on 2 February:

That this House believes that the Government's intention in the Public Bodies Bill to sell off up to 100 per cent of England's public forestry is fundamentally unsound; notes that over 225,000 people have signed a petition against such a sell-off; recognises the valuable role that the Forestry Commission and England's forests have made to increasing woodland biodiversity and public access with over 40 million visits a year; further recognises that the total subsidy to the Forestry Commission has reduced from 35 per cent of income in 2003-04 to 14 per cent of income in 2010-11; further notes that the value of the ecosystems services provided by England's public forest estate is estimated to be £680 million a year; notes that the value of such services could increase substantially in the future through the transition to a low carbon economy as a carbon market emerges; notes that the public forest estate has been retained in Scotland, Wales and Northern Ireland; and calls on the Government to rethink its decision on the sales of England's public forest estate in order to protect it for future generations.

So we won't have to wait now for the committee stage on the Public Bodies Bill to resume in the Lords before this subject gets debated in Parliament and the government comes out to defend its position as set out in yesterday's consultation paper.

Comments

My (tory) MP who voted against the Labour Party amendment said that it would have had no statutory effect. Is this the case?

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24: British Waterways Advisory Panel appointed

28th January 2011

Defra announced on 26 January (see here) that an independent Advisory Panel has been set up to provide advice to the Government as British Waterways makes the transition from public corporation to charitable body in England and Wales. Evidently, the Panel first met on 21 December. It is chaired by Andrew Hind, former chair of the Charity Commission and the other members are Roger Clarke, Dinah Nichols and Robion Ritzema. We now await publication of the proposed public consultation on the detailed proposals promised for early 2011.

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23: Consultation on Forestry Commission sell-off announced

27th January 2011

Defra today issued its consultation (see here) with responses due by 21 April. As part of the consultation process, the Forestry Commission (England) will host a number of local stakeholder workshops as well as one national stakeholder event. The Government expects to publish its response to this consultation in the summer of 2011.

Criteria to select woodlands for sale in 2011/12 have already been approved (see here) and will be used to determine the sales programme for 2011/12. Sales criteria for 2012/13 and beyond will be determined following the public consultation on the Public Forest Estate in England as now launched.

The consultation paper proposes in particular:

* Inviting new or existing charitable organisations, to take on ownership or management of the heritage forests to secure their public benefits for the long-term future;
* Creating opportunities for community and civil society groups to buy or lease forests that they wish to own or manage;
* Finding commercial operators to take on long-term leases for the large-scale commercially valuable forests. By leasing rather than selling, the consultation paper says that it will be possible to make sure that these forests continue to deliver public benefits through lease conditions.

It will no doubter be a little while before the principal stakeholder interests' considered views on the Government's detailed proposals become clear but, given the hostility expressed in advance of the consultation, wide-ranging concerns are likely to remain, particularly as respects the financial viability of possible transfers to community interests and the preservation of public access in all its forms (not just rights of way). The National Trust published its views, including 27 principles which it says should be followed, on the eve of the consultation (see here).

For the background to the proposals more generally, see blog entry No.21.

At the time of writing, there is still no news as to when the deferred 7th sitting of the Lords' committee stage on the Public Bodies Bill is to take place. However, a further amendment has now been tabled by Lord Greaves precluding clauses 17 and 18 applying to the New Forest, Sherwood Forest, the Forest of Dean and Kielder Forest.

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22: Committee proceedings on Public Bodies Bill deferred again

25th January 2011

Once again and despite still being in the programmed business yesterday, the Lords' committee proceedings which were due to continue today have been deferred. No future dates have yet been announced.

It may also be noted that four Labour MPs (John McDonnell, Paul Flynn, Katy Clark and Joan Walley) have tabled an early day motion (No.1322) on the subject of the bill:

"That this House recognises the good work done by many of the non-departmental public bodies included in the Public Bodies Bill [Lords]; is concerned that a single Bill gives Ministers the power to abolish or change the status of a wide variety of organisations with diverse functions; and calls on the Government to reconsider and to consult further with relevant stakeholder organisations and unions on the social need and economic value of the work undertaken by these bodies, and to ensure that decisions on the future of each public body are, where appropriate referred to the relevant select committee and subjected to full parliamentary scrutiny. "

Other MPs are free to add their names to the motion but such motions are not ordinarily debated.

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21: Who cares about taking an axe to the Forestry Commission?

24th January 2011

It is not often perhaps that as eclectic a bunch as the Sunday Telegraph, the Archbishop of Canterbury and such miscellaneous luminaries as Tracey Emin and Ranulf Fiennes make common cause against a government proposal.

But, as highlighted in the media over the weekend, a head of steam has built up, and is now being released, challenging the Government's proposals for selling off the Forestry Commission's English woodlands. Why just England? Because the devolved administrations have responsibility for the Forestry Commission in Scotland and Wales and, having no ideological problems with the principle of state ownership (if anything, quite the reverse), have no similar plans.

Defra issued its outline plans last October (see here) and has elaborated on them little since (which itself is part of the problem). A consultation paper is due out on Thursday. Then, in the next few weeks, clauses 17 to 19 of the Public Bodies Bill, which would give the Government enabling powers to implement a sell off and transfer by order, will be reached in the on-going committee stage on the bill in the Lords. Hence the current political and media activity. Those clauses are the subject already of numerous proposed amendments tabled in the names of Lord Greaves, Baroness Smith of Basildon, Baroness Benjamin, and Baroness Royall of Blaisdon, including both amendments to introduce new safeguards and amendments requiring the provisions to be deleted from the bill.

What is all the fuss about, particularly given the general unpopularity of quangos? The Forestry Commission, at least to date, does not seem to have the aura of a much-loved institution and its track record looks to be a bit mixed. Surely it could do, at the very least, with a degree of judicious pruning if not more more widespread re-shaping?

If it were just a question of people being committed to the principle of government ownership, one might also wonder why they are not also having a go at the National Trust and the RSPB (reported by Country Life last year as England's 2nd and 7th largest landowners respectively). Neither are government owned as such but, also of course, unlike the Forestry Commission, the Government is not proposing to do anything to them. Such landownings, as the government will no doubt argue, would seem to demonstrate that public protection does not necessarily demand public ownership, at least in the sense of government ownership, though maybe in the future, landholdings by such charities will be viewed much more as part of the public estate and will more routinely attract vehement criticism (remember the debate about the National Trust and fox hunting not so long ago).

No-one may greatly love the Forestry Commission but fear of change, particularly in the form of privatisation, is readily engendered, not least when issues about ensuring conservation and preserving public access are, or appear to be, at stake. Combine these ingredients with a widespread popular distrust of government in all its forms, deep-seated community attachment to particular local woods and forests and stir in allegations about selling off community assets to the highest bidder and it is easy to see how the campaign has taken off.

As it happens, the issue has also been picked up by that new phenomenon in our political firmament, the mobilised social network. "38 Degrees" in particular , a small web-based lobby group whose executive director, David Babbs, was fomerly head of activism at Friends of the Earth and which it is reported was also responsible earlier this month for the "Is George Osborne the most artful dodger" campaign, has produced an online petition which has attracted over 180,000 signatures (see here). Its own membership, it claims, is over 300,000 so very possibly the petition will attract many more signatures.

Now, we have the Save England's Forests campaign (see here) though, possibly for some, the celebrity status of some of its signatories may be something of a turn-off.

At the root of the matter is the difficulty which is at the heart of the Public Bodies Bill generally, namely that proposals are being brought forward and which require Parliament endorsement in principle without any of the important fine details being available for examination, modification or endorsement.

Will the Governmernt change its proposed stance or stand firm? We have yet to see what its detailed stance in relation to the Forestry Commission is but various reports (see eg Matt Ridley in the Times today) suggest that the sell-off in any event will favour community groups and bodies that guarantee public access and biodiversity, rather than just being a a sale to the highest bidder. If so, much of the current disquiet may melt away and groups such as the Woodlands Trust , arguably, will have little to worry about and much to gain. Then again, the Defra consultation will no doubt contain a number of things that cause further disquiet and also leave quite a lot still up in the air. And for those who really don't like the Public Bodies Bill, it certainly looks as good as any option to stand up and fight against the conferment of  "Henry VIII" style order-making powers.

To view an informative House of Commons Library Information Note on the subject of the proposed sale, dated 6 January 2011, see here.

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20: Human Rights Committee joins in criticism of the Public Bodies Bill

21 January 2011

In a report issued today (see here), the Human Rights Committee, which is a joint committee of both Houses of Parliament chaired by Dr Hywel Francis MP (Aberavon), issued its own critical report on the bill.

It raises three concerns in particular:

1. The inclusion in the Schedules of the bill of bodies which serve a function as part of the institutional machinery for the protection of individual rights in the UK.
2. The abolition or reform of other bodies which serve a particular decision-making function.
3. The excessive use of delegated powers which it says may reduce the effectiveness of parliamentary scrutiny for human rights compatibility of proposed legislation.

Whilst welcoming the Government's decision to remove some bodies from Schedule 7, the Committee goes on to state that, in its view, as a minimum the bill ought to be amended to provide the safeguards proposed by Lord Lester of Herne Hill and Lord Pannick rather than those proposed by the Government. It explains that by this it means that clear restrictions should be introduced to safeguard independence, the rule of law and the UK's human rights obligations. Those restrictions should be binding and subject to judicial review. Together with greater provision for public consultation and parliamentary oversight, it indicates that this proposal goes some way to meeting its concerns.

The Committee also joins in the chorus of those, including the Constitution and Delegated Powers Committees in the Lords, who conclude that the breadth of delegation proposed in the bill is wholly inappropriate. What it wants to see in particular is a fuller explanation of the Government's decision to use a framework bill to achieve its objectives in this case, including an explanation of:

* the roles of the bodies covered by the bill;
* the Government's related current policy intentions and reasons for including particular bodies in the bill; and
* the Government's view that, where necessary, adequate safeguards have been provided to protect the independence of public bodies in practice.

The Committee stage on the bill resumes next Tuesday.

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19: Royal Parks Agency to go to GLA

19th January 2011

John Penrose, the Minister for Tourism and Heritage, announced yesterday (see here) that the Royal Parks Agency, an executive agency which forms part of the Department of Culture, Media and Sport, is to be wound up and the team with its existing responsibilities for the royal parks transferred to the GLA to report to the Mayor. This will require legislative change to give the GLA equivalent powers to the DCMS. Intriguingly in this instance, the ministerial announcement includes an indication that the Secretary of State is to have reserve powers to intervene if it appears that the national interest is to be compromised.

Meanwhile, yesterday's prospective session in the Lords on the Public Bodies Bill had to be postponed due to then over-running debate on the "Alternative Vote" Bill and the committee stage will now resume next Tuesday 25 January.

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18: PM issues rallying call on public sector reform

17th January 2011

David Cameron issued a rallying cry today in relation to the Coalition's agenda for public sector reform, in a major speech given at the RSA (see here).

There appears to be little new in the speech as such beyond confirmation of the government's strategic approach, the estimate that measures to date have saved £3 billion in this financial year alone, and an indication that publication of the Health Bill in Parliament can be expected later this week and of the Education Bill next week, followed by the expected White Paper on the next steps for modernisation next month.

A number of key messages in the speech do however stand out. One is the Prime Minister's conviction that he must make rapid progress in a way that new Labour did not in its first term ("Tony Blair as good as admits that he wasted his first term, flogging the horse of centralised control") . Not surprisingly, he therefore trumpets that the Government has created as many academies in seven months as Labour managed in seven years and, far from fearing new commissioning arrangements, over 140 GP-led consortia have now come forward, covering over half the country, and that 65,000 public sector workers submitted ideas for how money could be saved without damaging the quality of services.

The second is a further emphasis on the concept of the Big Society and its role as the new middle way: "The right were guilty of focusing too much on markets. The left were guilty of focusing too much on the state. Both forgot that space in between - society...From schools to the NHS, policing and prisons, we have developed a clear plan for modernisation based on a common approach. A Big Society approach, which empowers not only services users, but professionals that strengthens not only existing providers, but new ones in the private and voluntary sectors too."

Then, too, the speech includes a striking series of commandments, almost in the nature of a hymn to public service: "Revere, cherish and reward an ethos of public service. Free professionals from top down control and bureaucracy. Give choice to the user. Encourage competition between the suppliers. Pay by results wherever appropriate. Publish information available everywhere you can. Make public service professionals answer to people, rather than the government machine." The result we are told is "Services that are more local, more accountable and more personal where people are the drivers, not passengers which call on every part of society - from churches to charities, businesses to community organisations - to come in and make a difference."

Committee stage in the Lords on the Public Bodies Bill continues tomorrow: see now the Seventh Marshalled List of Amendments, here

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17: No end in sight for Lords' Committee proceedings?

14th January 2011

It has now been announced that, following Day 7 next Tuesday, the Committee stage will continue the following day, 19 January, and then provisionally for a 9th day on Monday 24 January, with no further provision made in the future business announced up to 3 February. Ordinarily, this would suggest that the Committee stage was expected to conclude on Day 8 or 9 but we are still only half way through amendments on Schedule 1 with amendments tabled to clauses 2 to 31 and Schedules 2 to 7 still to be reached.

Maybe we will learn more next Tuesday.

There is now a sixth marshalled list of amendments plus three supplements to it (see here).

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16: Day 6 of Lords' Committee

12th January 2011

The four and half hour debate yesterday on Day 6 of the Committee proceedings in the Lords (see here) saw no changes made to the Bill but some further light thrown on the fate of a number of bodies listed in Schedule 1 for abolition (and one proposed for addition to that Schedule). Those discussed were:

* the Courts boards
* the Disability Living Allowance Advisory Board and Disability Pensions Transport Advisory Committee
* the Food Standards Agency (FSA)
* the Football Licensing Authority (FLA)
* the Inland Waterways Advisory Committee (IWAC)
* the Library Advisory Council for England
* the National Consumer Council (Consumer Focus).

The FSA was the one body not listed for abolition but proposed by way of amendment for listing in Schedule 1 though, as Baroness Thornton made clear in moving the amendment, this was merely done as a probing amendment and not in support of its abolition. Evidently, whilst some policy based functions are to go to Defra and the Department of Health, all are agreed that the FSA is to continue, Lord Taylor commenting that we have enough on our plate without adding an extra dish to the menu.

As to the FLA, Baroness Rawlings for the Government indicated that the Government's intention is only to abolish it after 2012 when it is to become part of an as yet unspecified other body, the precise arrangements to be the subject of consultation over the next 12 months. Furthermore, the Government is supporting a Private Members Bill (see Sports Ground Safety Authority Bill here) which seeks to reconstitute the FLA as a sports ground safety authority and to extend its advisory functions in respect of the safety of sports grounds generally.

Turning to Consumer Focus, it was explained that the Government intends to transfer its functions to the citizens advice service (Citizens Advice and Citizens Advice Scotland) with consultation to take place in the spring. There are 349 Citizens Advice Bureaux across England and Wales (and about 200 in Scotland), all of which are charities and the Citizens Advice and Citizens Advice Scotland, which are also charities, are the membership bureaux for these bodies. No details were given in the debate but one of the interesting questions in relation to these bodies, and also quite a number of others, is how statutory functions are to be transferred to independent charities, something which in relation to these particular bodies it seems will emerge in the consultation planned for the spring.

The debate will be resumed next Tuesday, 18 January.

Here is a revised Amendment Scorecard:

Amendments agreed: Nos.1 and 26
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16, 16A, 21, 24, 32, 34-36, 40 and 42.
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22, 23, 23A., 25, 27, 28, 29, 30, 31,33. 36A,37,39, 41 and 43.

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15: Public Administration Committee reports

7th January, 2011

As well reported in today's newspapers, the Public Administration Committee in the Commons, chaired by Bernard Jenkin, has published a report today on the reform of public bodies (Smaller Government - Shrinking the Quango State: see here). In headline terms, this describes the exercise as poorly managed and not something which will deliver significant costs savings or better accountability.

Labour has naturally seized on this, Liam Byrne the Shadow Cabinet Office Minister remarking that "the committee appears to confirm that Francis Maude is now Britain's most expensive butcher" (see here).

The report is clearly a thoughtful and well-informed review of all that has happened and, depending upon your point of view, a pretty comprehensive analysis of real or perceived deficiencies with the proposals. Whatever position you take on that, no-one can deny that what has happened so far has been rushed through. With that in mind and given the number of specialist agencies and jobs at risk, it is hardly surprising that there should be calls for more care, further consultation and less haste. As always but particularly at the start of a new Parliament, the balance to be struck between on the one hand getting on and doing something and on the other exhaustive preparation and scrutiny is a contentious one.

Amongst other points of interest, it is worth noting that the Committee concludes that the Public Bodies Bill as introduced contains insufficient safeguards to prevent the misuse of powers by ministers, promises a further report once the Public Bodies Bill completes all stages in the Lords, indicates that it is minded to favour a "sunset clause", furthermore that it will bring forward proposals for strengthening select committees' role in scrutinising changes to public bodies and that it considers that the executive agency model offers the best solution to balancing ministerial control with general accountability.

Also now published are two further supplements to the 5th Marshalled List of Amendments in the Lords, the first by Lord Greaves seeking to secure public access to Forestry Commission land and the second, by Lord Taylor for the government today, omitting the Criminal Procedure Rule Committee from Schedule 7.

The Committee stage in the Lords resumes on Tuesday.

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14: Day 5 of Committee proceedings and significant new Government amendments tabled

22nd December

In what was a busy day's proceedings in the House of Lords yesterday, there was only time for just over two and a half hours debate on Day 5 of the Committee proceedings on the Public Bodies Bill. Just five probing amendments were moved (and four others spoken to) all of which were withdrawn and in relation to which the Government confirmed that:

* the Child Maintenance and Enforcement Commission is to be transformed from a NDPB to an executive agency
* the Commission for Rural Communities is to be abolished
* the Committee on Agricultural Valuation (which has not met for 10 years (or, Lord Henley suggested, 16) is to be abolished
* the Environment Agency's Environmental Protection Advisory Committees and Regional and Local Fisheries Advisory Committees are to be abolished in favour of more flexible non-statutory arrangements
* Food for Britain is to be abolished
* the Home Grown Timber Advisory Committee is to be abolished
* the Competition Service may be transferred to the Tribunals Service but, despite it featuring in Schedule 1 rather than Schedule 7, this depends on further review by a working group which is now examining the position.

For the full debate, see here.  The Committee proceedings are now adjourned until Tuesday 11 January when consideration of proposed amendments will be resumed (see now the Fifth Marshalled List here and the Supplement to it here).

That supplement includes amendments tabled for the Government by Lord Taylor of Holbeach providing for the omission from Schedule 7 of the Agricultural Lands Tribunal, the Civil Procedure Rule Committee, the Surveillance Commissioners, the Competition Appeal Tribunal, the Family Procedure Rule Committee, the Horserace Betting Levy Appeal Tribunal, the Insolvency Practitioners Tribunal, the Investigatory Powers Tribunal, the Judicial Appointments and Conduct Ombudsman, the Plant Varieties and Seeds Tribunal, the Sea Fish Licence Tribunal, the Sentencing Council for England and Wales, the Tribunal Procedure Committee and the Valuation Tribunal for England. So quite a victory for those seeking to slim down Schedule 7.

Here is a revised Amendment Scorecard:

Amendments agreed: Nos.1 and 26
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16, 16A, 21 and 24.
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22, 23, 23A., 25, 27, 28, 29 and 30.

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13: Opposition from Lord Chief Justice reported

17th December

It is reported (see in particular Lord Norton, a member of the Constitution Committee, writing on Lords of the Blog here) that the Lord Chief Justice, Lord Judge, appearing before the Lords' Constitution Committee on 15 December and echoing the concerns expressed in the Committee's earlier report on the Bill and by Lord Woolf and others at Second Reading, has expressed strong opposition to the inclusion of independent quasi-judicial bodies in Schedule 7 to the Bill.

Patrick Wintour, writing about this in the Guardian today, suggests that the Government's plans to abolish a whole raft of quangos will now need to be completely re-drawn. However, it may be that this includes an element of wishful thinking. Whilst it would certainly be striking for a serving Lord Chief Justice publicly to take a stand against a major element of a Government Bill, it also remains to be seen whether Lord Judge's reported opposition will be confirmed or taken forward. Maybe, we will hear more next Tuesday when the committee stage on the Billl resumes.

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12: Reprieve for Chief Coroner (Day 4) but Forensic Science Service to go now

15th December, 2010

Slightly overshadowed by the vote on tuition fees which also took place in the Lords yesterday (14 December), the fourth day's debate in committee on the Public Bodies Bill saw a defeat for the Government with Baroness Finlay of Llandaff succeeding in a division (277 votes to 165) with her amendment No.26 to take the Chief Coroner , the Deputy Chief Coroner and their Medical Advisers out of Schedule 1 (abolition) of the Bill. Provision for a Chief Coroner and Deputy was made by the Coroners and Justice Act 2009 in the light of the Shipman inquiry and the Luce report but Lord Taylor for the Government sought to argue that implementing this now would simply be unaffordable and that it was important therefore to provide for their abolition in order to transfer relevant functions to the Ministry of Justice. In the event, their Lordships were plainly more taken with his remark that it seems counterintuitive for a Government to state on the one hand their commitment to improving the coronial system and, on the other, their plans to abolish the post of chief coroner.

For the full debate, see here. Apart from amendment 26, the only other subject touched on during the debate was the arrangements for winding up BRB Residuary) Ltd. The committee stage will now be resumed next week and, as the Fourth Marshalled List of Amendments which was published on 13 December demonstrates (see here), there is a way to go yet.

Meanwhile, in the Commons, James Brokenshire, the Parliamentary Under-Secretary of State at the Home Office announced the Government's immediate intention to wind up the Forensic Science Service (FSS), stating that "our firm ambition is that there will be no continuing state interest in a forensic provider by March 2012". Various reports indicate that the FSS currently employs 1,600 people. The FSS had been an executive agency but was turned into a wholly owned Government company in 2005 with a £18m loan as a transitional step towards a public-private partnership. According to the Minister, a further £50m grant was made in early 2009 to restructure the business but the FSS is making operating losses of around £2m per month. He went on to explain that the Government wants to see the UK forensic science industry operating as a genuine market to preserve police resources and maximise the impact of forensic services.

For the full statement in the Commons about the FSS, see here.

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11: Localism Bill lands in Parliament

13th December, 2010

At last, the long-awaited Localism Bill has been introduced today, Monday 13 December, and will commence its passage through Parliament in the House of Commons. With over 200 clauses, 24 Schedules and 400 + pages, it is truly a Christmas blockbuster.

Much if not all of its headline content has been trailed in advance through the Queen's Speech on 25 May and later ministerial announcements but the detail will take some pouring over. So far as the reform of public bodies is concerned, key points to note are:

* abolition of the London Development Agency (see clause 162), Regional Development Agencies and Regional Spatial Strategies (see clause 89 in particular);
* abolition of the Infrastructure Planning Commission: see clause 107;
* aboliton of the Office for Tenants and Social Landlords and the transfer of its remaining functions to the Homes and Communities Agency: see clause 150 and Schedule 16;
* abolition of the Standards Board for England and of the need for local statutory advisory standards committees: see clause 14 and Schedule 4;
* directly elected mayors in 12 English cities (it is proposed that council leaders for Birmingham, Bradford, Bristol, Coventry, Leeds, Leicester, Liverpool, Manchester, Newcastle upon Tyne, Nottingham, Sheffield and Wakefield would become shadow mayors, and together with any other areas that call for a mayor, they are to hold mayoral referendums on local Election Day in May 2012 with those areas that vote in favour holding mayorial elections on the local election day in May 2013: see clause 10 and Schedule 2, Part 1;
* mayorial development corporations for London: see clause 167;
* new powers for local authorities, including a new power of general competence (see clause 1 in particular); and
* a duty on local authorities and other designated bodies to cooperate on the planing of sustainale development: see clause 90;

To view the whole Bill and Explanatory Memorandum which, due to other business earlier today, were only introduced and published this evening long after the CLG announcements about them, see here.

It is also worth having a look in particular at CLG's 'Decentralisation and the Localism Bill: an essential guide' and its Media guide to the Bill.

Second Reading of the Bill will not now take place until January 2011.

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10: The BFI leads the way

6th December, 2010

No doubt others affected by the reform of public bodies are paddling as hard underwater but it does look as if the film sector is in some ways now in the front row when it comes to moving forward to the brave new world brought on by quango immolation.

The industry appeared to have been caught entirely by surprise when it was announced in the Commons on 26 July and without any prior consultation that the UK Film Council, a non departmental public body funded through and distributing lottery money to the film industry, was to go. Furthermore, what was to take its place, if anything, was then none too clear. But, following widespread dismay, letters of concern from the likes of Clint Eastwood and queries from the Government as to whether the UKFC was using its funding inappropriately to stir up a lobby against the change, events have moved swiftly on and plans now appear to be well advanced for the British Film Institute (BFI) to assume the UKFC's role and to do so by April of next year.

As some industry commentators have remarked, this is a remarkable turnaround given that the BFI , which is responsible for the BFI Southbank centre, runs the London Film Festival and looks after the National Film Archive, was itself effectively side-tracked and put under the thrall of the UKFC following that bodies' creation in 2001. Labour had also considered merging the BFI into the UKFC with the BFI in the secondary role. But, now the BFI, under its chairman Greg Dyke, is to regain its place as the lead representative of the film industry.

So what does this all mean for the BFI's governance? Ed Vaizey, the Culture Minister responsible has said : "The BFI will change fundamentally. It will become more open to partnerships with others, more engaged with the nations and the regions, more able to realise an exciting vision of a coherent, joined up film industry. These plans will involve a renewed BFI Board and senior management structure reflecting the BFI's new responsibilities. Current board vacancies will be filled quickly, following an open process run by the BFI." The BFI in some FAQs confirms: "We will be bringing on new Governors who are senior figures in the film industry, we will be introducing committee structures to address the Lottery distribution and we will create a Film Strategy Advisory Board drawn from all sectors of the film industry and including the devolved Nations and English regions."

It also means reform beyond the BFI and the UKFC. It has also been announced that the eight separate Regional Screen Agencies will now re-configure themselves as a single national body, Creative England, chaired by John Newbigin, with three hubs in the north, Midlands and south. These will continue to support new talent and new businesses wherever they are located, building on their intimate knowledge of the cities and regions in which they have been based. They will engage with the industry to ensure that the views of the sector are properly taken into account. Evidently, the BFI is to establish strategic partnerships with Creative England, Film London which will remain outside the Creative England structure, and with the film agencies in the Nations - Creative Scotland, the Film agency for Wales, Northern Ireland Screen - to ensure that public funding - Lottery and where relevant grant-in-aid - continues to support film in the Nations and the regions.

Presumably, the BFI will need to amend its charter and there may be issues to resolve in terms of governmental and parliamentary accountability. Granted a Royal Charter on its 50th anniversary in 1983 (that charter then being amended by scheme of the Charity Commissioners in 2000), the BFI was established in 1933 as a private company and was the subject of an Act of Parliament in 1949 which authorised the Treasury to make grants to it. As with the changes made in 2000, any revision of its charter will need to pass the scrutiny of the Charity Commissioners and approval of the Privy Council.

For more details on:

a) BFI history, see: here
b) the Royal Charter, see here
c) BFI FAQs: here
d) Ed Vaizey speech: here
e) UKFI website: here

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9: Day 3 of Lords' debate throws light on proposals for Audit Commission but not much else

2nd December 2010

Yesterday (1 December) saw the 3rd day's debate in committee on the Bill but relatively little progress. Questions were asked and explanations given by the Government for the proposed abolition of the 17 Agricultural Dwelling-House Advisory Committees, the Agricultural Wages Board, the Aircraft and Shipbuilding Industries Arbitration Tribunal and the British Shipbuilders Corporation. A probing amendment to include the BBC Trust amongst Schedule 1 bodies capable of being abolished also got debated leading to Lord Taylor of Holbeach indicating that this Bill was not the time nor then place to deal with non-statutory bodies and affirming that the Government has no intention of bringing the BBC's charter to an end before its designated end date of 2016.

The most interesting part of the debate was in relation to the Audit Commission which Lord Warner, in what was described by the Minister as a teasing rather than a probing amendment, had proposed for inclusion in Schedule 1.

Lord Taylor, responding for the Government, indicated that changes regarding the Commission "require power changes to pieces of legislation which are outside the scope of the Bill" and that is why the Commission did not feature in the Bill; rather it will be the subject of separate primary legislation which will deal with its disbanding, the transfer of the in-house practice into the private sector and the setting up of the new local audit regime in a comprehensive and integrated way. Lord Taylor explained that the Commission's responsibility for overseeing and delivering local audit will stop, its research activities will end and its in-house audit practice will be moved to the private sector, and that the Government is considering a range of options for doing this. Councils will be free to appoint their own independent external auditors from a more competitive and open market, and there will be new audit arrangements for local health bodies All local audits will be regulated within a statutory framework, with oversight roles for the National Audit Office and the profession. As a result, the Audit Commission's in-house practice will be transferred out of public ownership. A range of options are being considered for moving the audit practice into the private sector and the Government is aiming to have the new regime begin to come into effect during 2012-13.

The Committee stage next grinds on in the week after next, on Tuesday 14 December. A further days' debate has also now been pencilled in for Tuesday 21 December, with the committee stage then likely to continue after the Christmas recess which extends from 22 December until 10 January.

It remains to be seen how many of their Lordships will have the appetite to continue detailed debate on the miscellany of public bodies which still feature in amendments yet to be reached. However, there are big issues on the Bill which remain to be returned to and which may yet see some sparks fly. Lord Hunt of Kings Heath warned during Wednesday's debate: "The problem is that at the moment we do not find the Government willing to hear the voices around this Chamber or to understand that at some point they will have to make some movement, as it is pretty plain that this bill will not get through your Lordships' House in its present form".

For the full debate, see here

Here is a revised Amendment Scorecard:
Amendments agreed: No.1
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16, 16A and 21.
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15, 18, 19, 20, 22,23 and 23A..

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8: Day 2 of Lords' Committee on Public Bodies Bill

30th November

Day 2 of the debate saw clause 1 agreed to and a start made on debating amendments tabled to Schedule 1 (bodies subject to abolition).

There was one division, on an amendment (No.17) moved by Lord Borrie which was aimed at preserving the Administrative Justice and Tribunals Council (AJTC), and which was lost with the Government prevailing by 156 votes to 147. The AJTC is the successor to the Council on Tribunals established in 1958 on the recommendation of the much lauded Franks committee that led to the establishment of our independent tribunal system. Lord Borrie was supported, in seeking its continuance as an independent body, by Lord Newton of Braintree (its former chair), Lord LLoyd of Berwick, Lord Howe of Aberavon, Lord Pannick and Baroness Scotland but to no avail. Lord Taylor for the Government insisted that its role can now be fulfilled by the Ministry of Justice.

The only other bodies to be the subject of specific debate were the Advisory Committee on Hazardous Substances and the Advisory Committee on Pesticides, both of which Lord Whitty sought to have removed from the ambit of Schedule 1. Lord Henley made clear that these are now surplus to requirements so far as the government is concerned and are to be replaced by departmental expert scientific committees.

There were no substantive concessions made by the Government during the debate which will now continue on Wednesday 1 December. For the full record of Monday's debate see here.

Here is an Amendment Scorecard:
Amendments agreed: No.1
Amendments disagreed: No.17
Amendments not moved: Nos. 5, 9-14, 16 and 16A.
Amendments withdrawn: Nos. 2, 3A, 3B and 4, 6, 7A, 8, 15 and 18.

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7: Day 2 of Lords' Committee on Public Bodies Bill next Monday

26th November

Following the defeat of the Government on Lord Lester's paving amendment on Day 1 last Tuesday (as reported in my last blog entry; also see here the House of Lords' analysis of the division), the Committee Stage continues next Monday (29 November).

A Second Marshalled List of Amendments was published today (see here). Over 30 additional amendments appear in the Second Marshalled List (these being distinguished by letters as well as numbers, e.g. 7A). Many of these seek, rather than limiting the scope of the Bill to particular public bodies, as was such a feature of amendments in the earlier marshalled list, to increase its scope. In particular, Lord Berkeley, who is well known for seeking changes to our lighthouse arrangements, has proposed Trinity House, the Commissioners of Irish Lights and the Commissioners of Northern Lights for Schedule 1 (abolition) and Schedule 2 (merger), whilst Baroness Thornton has proposed the Food Standards Agency and Lord Inglewood the Church Commissioners for Schedule 1 (abolition). In the earlier marshalled list, only Lord Warner (Audit Commission for Schedule 1) and Lord Faulkner of Worcester (Football Licensing Authority for Schedule 4 - modification) had sought to extend the reach of the Bill

It is also worth noting that various letters dated 16 November from Lord Taylor of Holbeach answering particular queries from peers have been published on the Parliamentary website (see here). These include letters confirming the Government's intention to transfer the regulation of social workers from the General Social Care Council to the Health Professions Council, confirming that no changes are proposed to the Low Pay Commission or to its functions and confirming the Government's intention to abolish the Administrative Justice and Tribunals Council.  Another of these letters explains that the Design Council is not listed in the Bill as it is a non-statutory body, that it is intended that it should remain as a Royal Charter charity but not as a non-departmental public body and that the level of funding for it will be confirmed as soon as possible.

The Committee Stage is due to be continued, after Monday's session, on Wednesday 1 December and Tuesday 14 December.

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6: Day 1 of Lords Committee leaves Government reflecting

24th November

In a spirited 5 hour debate yesterday (see here), the House of Lords left the Government in no doubt that, overall, it does not think that the safeguards proposed in amendments tabled by the Government go nearly far enough and that more needs to be done to circumscribe the powers of the Executive to make orders under the Bill

The scene was set by the publication, shortly before the start of proceedings, of the report of the 6th report of the Delegated Powers Committee (here). This is seriously critical of the Government's proposed amendments and formed much of the basis for the ensuing debate. More than 20 speakers then contributed to a debate led by Lord Lester and Lord Pannick on proposed Amendment No.1, a paving amendment to insert at the beginning of Clause 1: "Subject to section ...(Restrictions on ministerial powers)".

This led into discussion of the contrasting approaches suggested by the Government, by Lord Lester and Lord Pannick and by Lord Hunt of Kings Heath for Labour, as to how to upgrade the procedures for making orders under the Bill and for ensuring the continued independence of those bodies listed in the sweep-up Schedule 7, or as Lady Andrews chose to describe them, those "on death row".

As at Second Reading. Lord Taylor of Holbeach for the Government took a non-combative and conciliatory stance, promising to reflect further on much of what was said.  Despite Lord Lester, in a gesture of loyalty to the Coalition, seeking to withdraw his amendment, this was then voted on and passed at 5.31pm by 235 votes to 201. In effect therefore, negotiations continue on the main issues, including the issues of independence, consultative and parliamentary procedures and the possibility of "sunset provisions" which will need to be returned to later in the Committee stage. However, the extent to which the Government will be prepared to offer more concessions remains to be seen.

In many ways the debate was more of a Second Reading debate than a Committee debate and rehearsed again many of the arguments then aired. As the many contributions from distinguished lawyers illustrated, underlying the central issue of the respective powers of the Executive and Parliament is a more general question of the extent to which legal concepts of due process ought to constrain political expedience. These are difficult but very important constitutional issues. Lord Lester did suggest at one point during the debate that this was "a remarkable debate that will be read long after we are dead". Whether that proves to be the case may depend on just how the remainder of the Committee Stage pans out.

Here is an Amendment Scorecard:
Amendments agreed: No.1
Amendments withdrawn: Nos. 2, 3A, 3B and 4.

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5: Stage set for Committee stage in the Lords

22nd November

The curtain comes up on Day 1 of the Committee proceedings in the Lords tomorrow afternoon (Tuesday 23 November) and no less than 181 amendments and new clauses have now been tabled for debate: see here

The marshalled list of amendments is, not surprisingly, dominated at least in numerical terms by proposals to leave out various specified public bodies from the ambit of one or more of the Schedules to the Bill but perhaps the most noteworthy proposals tabled are the new clauses tabled for the Government by Lord Taylor of Holbeach substituting a form of super-affirmative procedure for the affirmative order-making procedures currently to be found in clauses 10, 12 and 19.

This would mean orders being subject to prior consultation (minimum 12 weeks) outside Parliament, then being laid with a detailed explanatory document and with Parliament having the option to require, within a 30 day period, a 60 day examination period prior to any affirmative resolution and obliging the Minister to have regard to any representations, any resolution of either House and any Parliamentary committee report before deciding to proceed to an affirmative resolution, either on the order as originally laid or on a revised order.

In essence, this is similar to the procedures for orders under the Legislative and Regulatory Reform Act 2006: see here. Such a procedure will necessarily slow down the order-making process but, as proposed, the public consultation could take place before the Bill is enacted so helping progress to be made in the interim.

Lord Taylor has also tabled an amendment to clause 8 (No.108) requiring Ministers to consider in deciding to make an order under clauses 1 to 6, the extent to which functions need to be exercised independently of Ministers, this being intended to respond to the concerns expressed at Second Reading about those bodies which exist specifically to act impartially of government.

Amongst the numerous other amendments tabled are amendments from the Opposition front bench seeking to preserve public accountability functions (e.g. audit by the Comptroller and Auditor General), their version of provisions for consultation and super-affirmative procedure and new clauses to require cost benefit justification (No.180) and introducing a "sunset provision" killing off the Bill, once enacted, after 5 years (No.181). Lord Lester of Herne Hill and Lord Pannick have also put their names to a number of amendments designed to constrain the powers of the Bill ,as has Lord Greaves amongst others.

The House will be considering the Bill in accordance with an instruction of 16 November (see here) in the following order: Clause 1, Schedule 1, Clause 2, Schedule 2, Clause 3, Schedule 3, Clause 4, Schedule 4, Clause 5, Schedule 5, Clause 6, Schedule 6, Clauses 7 to 11, Schedule 7, Clauses 12 to 31. After Tuesday, the Committee stage is expected to continue on 29 November and 1 December.

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4: British Waterways and the Big Society

16th November 2010

The detailed nature of the intended transformation of British Waterways into a charitable trust became clearer yesterday (15 November) with presentations from the Waterways Minister Richard Benyon and BW's chief executive, Robin Evans, at the annual conference of the Association of Inland Navigation Authorities.

The concept, which is to be the subject of a general consultation early in 2011 followed by a further consultation on the proposed transfer order at the end of 2011, is for the new body to be up and running in April 2012, for which purpose the charity will be established, initially as an arm of BW, with 7 shadow trustees appointed by March 2011. As now conceived, the new body will be a charitable trust, broadly similar to the National Trust in terms of its governance model, with a small board of trustees appointed by a Council of 40-50 people meeting 2-3 times a year and local boards of 8-10 members for each of the 11 waterways appointed by the Council and meeting 6 times a year who will be responsible for the development of sub-national strategy, raising local funding and holding local management to account as well as agreeing the annual budget.

Whilst there appears to be some uncertainty about what, if any, general membership arrangements will be proposed, Robin Evans did indicate that he thought that the new body would not be membership-based but rather would have a subscription system, and went on to venture that there would be scope for people to be elected to the Council and that, possibly, it would be a good idea for licensed boat owners and, in due course, subscribers each to elect one Council member. This suggests that the Council will be mostly appointed by specified representative bodies rather than by any general membership.

So far as the transfer of powers is concerned, the idea is that an order will be made under the Public Bodies Bill, once enacted, substituting reference to the new body for references to BW in existing legislation, so enabling it to operate as BW's successor and with BW's property assets transferred to it. A funding settlement is to be agreed with the shadow trustees, that settlement providing an as yet indeterminate level of government funding for, it was suggested, a period of some 10-15 years. The assumption is the new waterways charity can attract approximately £17m p.a. in voluntary contributions at the end of 10 years but, even if that is achieved and if the funding settlement still to be agreed proves to be generous, some significant cutback in revenue is in prospect (BW's current annual budget is some £60-70m). The new waterways charity will therefore have to cut its cloth accordingly.

As yet, it seems that no decision has been made on whether to include the Environment Agency's waterways in the proposed transfer but the Scottish Government has determined, as was announced last week, that BW's Scottish waterways will remain in the public sector and not form part of the transfer.

Whilst Richard Benyon expressed the hope that the proposals will blaze a trail for the Big Society and they have been greeted with enthusiasm by a number of interests, not everyone is convinced. Notably, the Inland Waterways Advisory Council, which is one of the quangos to be abolished, expresses quite afew reservations about the concept in its recent report Surviving the Cuts and Securing the Future. Implementation will also present quite a number of challenges including, it was pointed out by the Minister, going through the process of securing EU agreement that the proposals do not amount to illegal state aid. Overall, the hoped for April 2012 transfer date may well prove overly optimistic.

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3: Public Bodies Bill heads towards committee in the Lords

15th November 2010

With the committee stage in the Lords now programmed to commence on 23 November, amendments are being tabled  and, last Friday (23 November), the Delegated Powers and Regulatory Reform Committee issued its report on the Bill. Echoing concerns expressed in the Constitution Committee's report and by many peers during the second reading debate (stating in particular that the Bill "would grant to Ministers unacceptable discretion to rewrite the statute book, without adequate parliamentary scrutiny of, and control over.the process"), this further report goes on to document possible solutions but without making a recommendation as to which of these, or which combination of these, would be best.

The options highlighted range from removing powers from the Bill, through inserting more detail, inserting limitations, removing bodies from the Bill (or just from Schedule 7), enhancing the provision for scrutiny of orders (by way of more provision for consultation, a form of "super-affirmative " procedure or provision to amend orders), to adding a "sunset provision". Whilst the Committee goes to some pains not to recommend a particular option, it appears nevertheless somewhat negative about opting either for super-affirmative procedure or some procedure to enable the House to amend orders once laid.

In some ways, this might be thought a bit odd for, if it is alright for the Lords to amend primary legislation, why not also secondary and as long as adequate provision is made for scrutiny, why should proceeding by way of secondary legislation matter? As well as a general conviction that matters of principle should be dealt with at the primary legislative stage, maybe part of the underlying concern is a worry that there just isn't sufficient time or resources in the Lords to scrutinise the flood of orders that could flow from this Bill. Then again, maybe it is thought better to proceed on the basis of the principle earlier supported by the Merits Committee, which the Government was challenged to accept at Second Reading, that the convention under which delegated legislation is not voted down in the Lords should not apply to orders made under framework/skeletal legislation. Applying that principle, the Lords could vote down orders as they arise, were they to see fit.

It remains to be seen what proposals the Government will come up with itself for enhanced scrutiny but we may get a feel for these later this week as the deadline for tabling amendments for day 1 of the committee proceedings is this Friday.

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2: Second Reading in the Lords

12th November 2010

The debate on Second Reading took place in the House of Lords yesterday (November 9), culminating after eight and a half hours, just before midnight, with the Bill then being given a Second Reading and referred to a Committee of the Whole House in the usual way. The alternative opposition proposal in the name of Lord Hunt of Kings Heath, that the Bill be referred, as the Constitutional Reform Bill had been in 2004, to a Select Committee, was rejected by 188 votes to 151.

Speakers, and over 50 peers sought to contribute, were almost uniformally critical of the skeletal nature of the Bill and the proposed order-making powers, with much of the debate focusing on the trenchant criticisms of the Henry VIII clauses in the Bill made in the Constitution Committee's report. Comments such as "institutional vandalism", "flamethrower approach" and "as sharp a piece of legislative practice" peppered the debate, reflecting very real unease from many quarters with the constitutional import of the Bill. Particular criticism was reserved for the Schedule 7 list which sweeps up various public bodies as potential candidates for substantive reform, the Schedule being described by Baroness Crawley as a quango version of room 101 but with perhaps the most telling contribution coming from Lord Woolf, the former Lord Chief Justice, who warned of the danger of interfering with the independence of bodies concerned with the administration of justice in particular, said that he believed that the Bill was not consistent with the Constitutional Reform Act in relation to such bodies and described it more generally as wrong so far as the partnership between the legislature and the judiciary and the executive and the judiciary is concerned.

But, whilst Lord Taylor promised to bring forward amendments to address concerns about lack of provision for scrutiny of order proposals generally, raising in particular the possibility of orders being published in draft for consultation and he also promised to review whether some bodies could be removed from Schedule 7, there was no commitment by the Government to additional Parliamentary scrutiny of orders, whether through adoption of the "super-affirmative procedure" or otherwise. The referral of the Bill to a Committee of the Whole House rather than to a Select Committee (which could have heard evidence and looked in detail at the merits of proposals for individual bodies) also means that the ability of the Lords to examine in detail how the Bill might be implemented remains severely constrained.

If nothing else, this Bill, which as one peer remarked includes delegated powers on an industrial scale, ought to bring forward some resolution of the difficult question of how the Lords can best scrutinise framework legislation and then its ensuing implementation through the exercise of delegated powers. If the Lords is truly to be a revising chamber, then most would agree that something more than a debate (without opportunity for amendment), on a motion to approve implementing orders, is needed and that just allowing for advance public consultation on draft orders would not achieve that. But how to achieve proper scrutiny without either unduly frustrating the delivery of the Government's agenda or imposing too heavy a burden on the Lords remains something of a dilemma.

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1: Welcome to our Public Bodies (Reform) blog

This is entry number 1 of a Bircham Dyson Bell blog on the implementation by the Coalition Government of its proposals for the reform of public bodies.

The blog will focus in particular on the Public Bodies Bill and will follow the Bill through to its enactment and implementation whilst commenting on related legal and policy developments over the coming months. It is being written from a non-partisan stance and, insofar as it contains criticism of what is proposed, is intended to do so from the point of view of a detached observer. Whilst the blog appears in my name, it is being written with the assistance of colleagues here and I happily acknowledge their considerable help in what is very much a collective effort.

The long awaited Public Bodies Bill was introduced to the House of Lords by Lord Taylor of Holbeach on Friday, 29 October. Lord Taylor, a former opposition whip and EFRA spokesperson and director of Taylor Bulbs in Spalding, became a life peer in 2006 and is now a Government whip and spokesperson in the Lords for the Cabinet Office, Energy and Climate Change and Work and Pensions. The Bill had its second reading in the Lords on 9 November (see next blog entry here).

Unsurprisingly, the Bill is in the nature of framework enabling legislation, making provision for change by ministerial order rather than by substantive provision in the Bill itself. If the Bill is enacted as it stands and without any ministerial commitment to additional consultation or scrutiny, it would thus follow that none of the orders reforming public bodies might be seen until each was laid in Parliament and, then under affirmative resolution procedure, they would be incapable of amendment and would need only to be voted though after a relative short debate in each House.

Three issues are likely to loom large during the passage of the Bill:
• are the right public bodies identified in relation to the various powers proposed?
• what assurances can be given or constraints imposed on the exercise of the powers?
• are the extent of the delegated powers and the limited provision made for Parliamentary scrutiny of the orders implementing its provisions appropriate?

The delegated powers proposed are certainly very considerable and attracted criticism from the House of Lords Constitution Committee who say that the Bill is a type of framework Bill which "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...We fail to see why such parliamentary debate and deliberation should be denied to proposals now to abolish or to redesign such bodies."

Enabling powers of this sort have proved controversial in the recent past, for example on the Bill for what became the Legislative and Regulatory Reform Act 2006 where the attempt by the then Government significantly to widen the power to modify primary legislation by way of legislative reform orders was severely curtailed by amendments during the passage of the Bill. Debate on this subject centres on what are called, in a critical fashion, ‘Henry VIII clauses'. Named after the Statute of Proclamations 1539, these are provisions which enable primary legislation to be amended or repealed by subordinate legislation. Henry VIII and his generation famously took a robust approach to the exercise of legislative power even providing through legislation for the Bishop of Rochester's cook to be boiled alive. However, until relatively recently, the use of delegated legislation was generally frowned upon and especially Henry VIII clauses. The use of Henry VIII clauses in particular was severely deprecated in the Donoughmore Report of 1932, following which no new powers of that sort were granted until the end of the Second World War. In the last 25 years, the trend has been the opposite way with the majority of public legislation being written upon the basis that detailed implementation is to be through delegated legislation and with Henry VIII clauses though still somewhat exceptional becoming more widespread.

The report from the Constitution Committee suggests that the debate upon them will now be resumed and at a time when there appears to be a particular appetite for Parliament to reclaim some control over the Executive. Let us not forget also that the Queen's Speech included the promise that ‘My Government will propose Parliamentary and political reform to restore trust in democratic institutions and rebalance the relationship between the citizen and the state'. It will be interesting to see how the debate develops and whether that promise extends to some new developments in the treatment of delegated legislation.

For a brief resume of how matters currently stand on the subject of the Reform of Public Bodies, see our related news bulletin here. We will update this from time to time during the life of this blog.

We hope that you will find the blog useful, both for its comments generally and as a reference tool. Feel free to bookmark it or link to it - see the ‘share' link to the right. If you would like any further information on this subject please get in touch.

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