Practical Law

Daniel Greenberg, PLC consultant:

The coalition government undertook early on to make a major cull of non-departmental public bodies, with a view both to saving money and simplifying public administration.  The first serious step towards achieving that aim was the introduction into the House of Lords of the Public Bodies Bill on 28 October 2010.
 
In advance of the Second Reading of the Bill on 9 November the House of Lords’ Constitution Committee published its report on the Bill on 4 November.  The report is short but sharp, and promises to be only the first shot in what the Committee clearly intends to make something of a constitutional battle (“The Committee will closely monitor the progress of the Bill and may report again to the House.” (para.15)).

The essence of the Bill is to confer extensive powers on the government to use secondary legislation to make any necessary amendments of primary legislation to support measures required for the abolition of a list of scheduled bodies and the redistribution of their functions and property.  The Bill is entirely “skeleton” legislation, achieving nothing on its face other than conferring legislative powers on the Executive, and the powers are to be exercised without more public and Parliamentary scrutiny than is allowed for by the standard draft affirmative procedure (clause 10).  The Bill does contain a number of restrictions on what may be done by order under it (such as on the creation of criminal offences – clause 22), but the extent of the legislative power that it confers is wide, and includes not only the amendment of other enactments but the power to amend the emerging Act itself so as to add to the lists of bodies that may be affected.
 
It is this aspect of the legislation that appears to have alarmed the Constitution Committee, and to which they call attention in their report: they regard the Bill as an extreme instance of a “Henry VIII Power”, the name given to statutory powers to amend primary legislation by secondary legislation.  The key passage of the report states the Committee’s objection as follows:

“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 is provided.”

It remains to be seen how this particular controversy plays out during the passage of the Bill, but the Committee has set out the battle lines by its express references to the failure to use a super-affirmative procedure, to the ability to make “omnibus orders” dealing with disparate bodies, and to the absence of additional safeguards such as a requirement to determine proportionality.  Since these are all fairly predictable demands, it is of course not impossible that the Bill as introduced represents only the government’s opening bid, and that some form of super-affirmative procedure is already in reserve as a planned concession. 
 
One aspect of the Bill which did not particularly attract the Committee’s attention, but which may yet give rise to comment by them or other Parliamentarians, is the “de-hybridising” provision in clause 27(4), allowing orders under the Bill to proceed without engaging the hybrid instrument procedure in the Lords.  Considering the range of quasi-commercial and industrial activities that the listed bodies engage in it is not difficult to imagine that issues of private interests might arise, and one might have expected the rules of hybridity to be allowed to take their course in such a case.  It will be interesting to see if the point is raised during the Bill’s passage.

At Second Reading in the Lords on 9 November the Constitution Committee’s report was referred to by many speakers, who raised a variety of specific concerns about the strength of the powers being proposed in the Bill.  In the face of a rare motion to commit the Bill to a Select Committee for its Committee stage, the Minister (Lord Taylor of Holbeach) made a number of commitments, as a result of which the motion for a Select Committee was defeated (although by a fairly narrow margin).  The Minister said:

“I take equally seriously the concerns raised by a number of noble Lords about ensuring the independence of bodies charged with delivering important public functions, and those regarding the scope and nature of Schedule 7. Accordingly, I wish to make clear my intention to bring forward amendments in Committee to address these issues constructively. I accept the Constitution Committee’s concerns and the need to meet them by devising a parliamentary procedure that will ensure proper public consultation and enhanced parliamentary scrutiny before any proposals to act under the legislation are approved.  We will also seek to amend the Bill to include safeguards to give independence to public bodies against unnecessary ministerial interference when performing technical functions, and when their activities require political impartiality and the need to act independently to establish facts. Finally, we will consider whether some of the bodies need to be removed entirely from Schedule 7. As part of these considerations, we will seek to address the concerns of the noble and learned Lord, Lord Woolf, which were echoed by many other noble Lords, including the noble and learned Baroness, Lady Scotland, about bodies that deal with matters relating to the judiciary or otherwise to the administration of justice.”

Like the Constitution Committee, we will keep the situation under review and report significant developments as they arise.

Daniel Greenberg was Parliamentary Counsel (UK) from 1991-2010 and is now parliamentary counsel in the Parliamentary Team at Berwin Leighton Paisner LLP and the editor of Craies on Legislation.