David Howarth writes… The Public Bodies Bill is sloppy, lazily drafted and must be radically amended

On Friday, Mark Pack wrote on Lib Dem Voice about Public Bodies Bill – Abolition of Parliament: it was wrong then and it’s wrong now – highlighting how some parts of the Public Bodies Bill echo the proposals previously made by Labour and against which David Howarth led the opposition. Now David Howarth gives his take on the Bill:

The Public Bodies Bill gives ministers powers to abolish, merge, reform or change the functions or financial arrangements of public bodies (i.e. quangos). Ministers will be able to use these powers by issuing unamendable statutory instruments that require a single vote in each House of Paliament to become law. By clause 27 of the Bill, these statutory instruments may repeal, revoke or amend any enactment “(whenever passed or made)”, which means that they can change any law, even Acts of Parliament, including future Acts of Parliament.

Some people have been comparing this bill to the notorious Legislative and Regulatory Reform Bill of 2006, in which the Labour government sought to give itself power to change any Act of Parliament by statutory instrument, including the statutes that lie at the heart of the constitution. In truth, the Public Bodies Bill is not the threat the Leg and Reg Bill was. Its effect is confined to specific lists of public bodies and it does not include the threat contained in the Leg and Reg Bill that by applying the mechanism of the Bill to the Bill itself, it could dissolve parliamentary democracy by a single vote.

But the Bill does contain dangers and is seriously defective in its present form. It gives ministers the power to transfer lawmaking and judicial power to themselves. Clause 1, for example, means that ministers can abolish the post of Chief Coroner and transfer the powers of that office to themselves. They could also give themselves the power to make rules for the Crown Court and for Magistrates Courts. No doubt the government will say that these effects are not intended, but what matters is what the Bill says.

Another objectionable aspect of the Bill is the list of public bodies (schedule 7) which are not currently subject to abolition, merger, reform etc, but which can be transferred into one of those categories. That mechanism removes the protection many of those bodies currently enjoy that they can only be interfered with by primary legislation. It gives ministers a way to threaten them if they do not behave as ministers want.

One of the schedule 7 bodies is the Information Commissioner. It is not at all acceptable that an officeholder who comes into frequent conflict with government should be put into such a vulnerable position. Perhaps even worse is the appearance in schedule 7 of the Judicial Appointments Commission. Since judicial appointment is not itself the exercise of the judicial power of the state, and so is not subject to the limitation in the Bill that legislative and judicial powers can only be transferred to other public officials, in theory ministers could transfer the power to choose judges not just to themselves but to anyone else, including to a commercial company (perhaps to the ubiquitous Capita). The possibility of abuse of schedule 7 also extends to local government and the universities, since the list includes the Standards Board for England (which a real localist surely would just straightforwardly abolish along with all of its powers and functions, not make them available for transfer to ministers) and the Higher Education Funding Council for England, the presence of which on the list is an ominous sign for the autonomy of the universities and for the Haldane principle that the government should not direct the content of academic research.

There is also the puzzle of clause 5, which allows ministers to confer new functions on a short list of specified public bodies and to transfer their functions to some other person, including themselves. Read literally (which, of course, a court might not do) this clause allows the government to confer the power to legislate on any topic (including a power to legislate without parliamentary approval) on any organisation on the list (for example the Environment Agency) and then to transfer that power back to themselves. This is the nearest the Bill gets to the bootstraps mechanisms of the Leg and Reg Bill. Fortunately, the mechanism involved is, unlike the 2006 mechanism, fairly easily challengeable in the courts, since one would hope that a court would say that ministers cannot confer on anyone else a power that they themselves do not already have.

The Public Bodies Bill might not presage the end of parliamentary democracy in the way the 2006 Bill did, but it is a sloppy, lazily drafted bill that assumes, just as the 2006 Bill did, that those in power are all good chaps who would never abuse the powers assigned to them. It must be radically amended before it becomes law.

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19 Comments

  • This seems like a clandestine attempt to grab power and by-pass parliament. The House of Lords select committee compared it the powers held by “Henry VIII”

    Which ministers are behind this?

    http://www.guardian.co.uk/law/afua-hirsch-law-blog/2010/nov/09/lords-quangos

  • John Roffey 20th Nov '10 - 4:55pm

    It certainly must be hoped that it is sloppiness and laziness which would give the Coalition so much power and not a deliberate act. Are any of the Lib/Dem ministers directly involved in this legislation?

    The C4 program ‘Britain’s Trillion Pound Horror Story’ was intended as a justification for the wholesale privatisation of public services, including the NHS – I hadn’t realised it could be so easily done by ‘sloppily’ wording in this single piece of legislation.

    I also had not realised that Capita were in the running for Coalition contracts – I thought they were Labour supporters, but I suppose as Mr Dylan says ‘money doesn’t talk – swears’!

    http://en.wikipedia.org/wiki/Capita

  • “By David Howarth MP”? Best change that…

  • I’ve looked it up to see who is behind this legislation. Seems it has come from the Lord President of the Council and the Minister for the Cabinet Office: Nick Clegg and Francis Maude.

  • Perhaps we should call it the Charles I bill. He didn’t like that parliamentary process much either.

    In line with the, in my opinion too swift, move to fixed parliaments and boundary changes this is sloppy legislation and sloppier politics. Interesting how yet again the Lib Dems in Government will be forced to vote for a something they had previously opposed. It enforces my opinion that the Tories can’t be trusted and are destroying the hopes of the Lib Dems.

    the Government have proved singulalry unnafected by reasoned debate so far so expect a very similar bill to gain royal assent and another PR coup for Labour.

  • John Roffey 20th Nov '10 - 6:20pm

    @ RichardSM

    Has Cameron got something on NC – pictures or such like?

  • Before granting themselves new powers all governments should apply the “That lot over there test”. They should ask themselves whether they are prepared to grant the same powers to “that lot over there”, otherwise known as the opposition and potential future government. If there are any shadow ministers who they do not trust with the same powers, they should not grant them to themselves.

  • I suspect civil servants are to blame for the drafting – from the comparisons made by David above, they cut and pasted bits from one they prepared earlier for Labour.

  • John Roffey 20th Nov '10 - 8:28pm

    @ Simon G

    Surely the same test needs to apply as to what will prevent the next Labour government from returning the Nation to insolvency, should the Coalition be successful with their austerity program.

    I have not seen any legislation planned which would prevent this – inexplicable!

  • To John Roffey

    Legislation to prevent the banks from leaving the country wallowing in debt would have been a very good idea. However, Gideon (call me George) Osborne’s comments over the years have shown just how vigorously the Tories would have opposed any increase in regulation of the banks. That would be the same Osborne who praised Ireland for their lack of regulation just a few years ago. That worked out well didn’t it?

  • John Roffey 20th Nov '10 - 9:24pm

    To Simon G

    Am I the only one to notice that the Party is in a position to insist that this gaping black hole be closed? And if I am not, to those who also have noticed – what the hell are you in politics for?

  • There’s another point here that seems to have been missed. David Howarth led the opposition to the Labour bill and therefore has great knowledge regarding the subject. Why on earth did the coalition not use him to help draft the new one to avoid the same pitfalls.

    The only answer I can see it that they are not pitfalls but features of the bill and the Tories and their Orange book friends will push it through regardless.

  • Anthony Aloysius St 21st Nov '10 - 12:25am

    “what the hell are you in politics for?”

    In it for the money, presumably. It’s very hard to discern any other motivation at the moment.

  • With respect Steve, the Party can refuse to support this bill – it may be that Labour would choose to give their support, but Cameron is not going to call an election, that he will lose, if the Lib/Dems refuse. This is very serious development, it is one thing for the members to stand by and watch the Party being destroyed because Clegg has lost his marbles or worse, that’s just years and years of effort wasted, but to support such a Machiavellian piece of legislation could have very serious consequences for the people of this Nation for years to come. Surely the members would not want that on their heads too!

  • Anthony Aloysius St 21st Nov '10 - 12:53am

    “Surely the members would not want that on their heads too!”

    But what can the members do about it, if the MPs go along with it?

  • John Roffey 21st Nov '10 - 1:51am

    Presumably if a new leader were elected – the other MPs would be obliged to do what the new leader wanted.

  • Patrick Smith 21st Nov '10 - 10:50am

    The shortcomings of the proposed Public Bodies Bill, as outlined, show that the Liberal Lord Acton in the late 19thc was right when he said, `Liberty is not a means to a higher political end.It is itself the highest political end’.

    Small wonder that the constitutional opinion forming Lord Acton was a critical influence on the mind of Gladstone in 1892, when Gladstone formed his fourth Liberal Government,

    `Gladstone influences all round him but Acton,it is Acton who influences Gladstone’.

    I would join agreement with the concerns of all those Liberals who would rather Parliament remain the only arbiter of all leglislation and not Ministers.

    We can also look to Montesquieu, the emminent French jurist and political philosopher of the 17thC who first defended the doctrine of `Separation of Powers’ i.e.Executive,Judges and law makers should be separated and in the interests of the pursuit of good government .He said,

    `The sublimity of administration consists of knowing the proper degree of power that should be exerted on different occasions’.

    Mr Howarth is clearly in support of transparency and delegated powers test that is fair balanced and open and Liberal and meets both Acton and Montesquieu`s salutary warnings.

  • tonygreaves 24th Nov '10 - 9:51pm

    The Minister in charge of this Bill is Francis Maude.

    Tony Greaves

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