Public Bodies Bill

Lord Norton

Both Baroness Murphy and Lord Soley have commented on the Public Bodies Bill, which comes up for its Second Reading on Tuesday.  It is proving highly controversial and there is now a long speakers’ list for the debate.  The principal problem with the Bill is what is known as an ‘Henry VIII’ provision: that is, ministers being given power to amend primary legislation by order.  Instead of an Act of Parliament being amended or repealed by a later Act, a power is given to ministers to decide to change it.  Such changes may be subject to an affirmative resolution procedure, but this is not wholly adequate, given that it involves at best a short debate and vote.  There is also the point that the Lords does not usually employ its power to reject an order. 

The Bill was discussed by the Constitution Committee on Wednesday and we issued our report on the Bill yesterday.  It draws out the constitutional implications of what is proposed and why as it stands the Bill does not embody adequate safeguards.

20 comments for “Public Bodies Bill

  1. Lord Blagger
    05/11/2010 at 2:34 pm

    A better name is an Ermächtigungsgesetz act.

    You can guess who thought of that one.

    However, you’ve let plenty of such legislation through in the past. Why the sudden change of heart?

    You’ve even allowed the government to change the law retrospectively.

    In other words, the Lords is no safeguard whatsoever.

    115 million a year as a retirement home for old politicians.

    Half a billion over this parliament, at least.

    • Lord Norton
      Lord Norton
      08/11/2010 at 6:12 pm

      Lord Blagger: There is plenty of data to show the difference the Lords can and does make to legislation.

  2. Lord Blagger
    05/11/2010 at 3:19 pm

    Mind you I’m suspicious too.

    After all, large numbers of Lords sit on Quangos and earn cash by doing so.

    With the Quangos going, lots are going to lose a large chunk of income.

  3. Carl.H
    05/11/2010 at 4:03 pm

    I am against Ministers having what appears carte blanche, this is not democracy and one could see why current Government wants to limit numbers of Politicians. They`d only need a limited amount of Ministers with this type of power. This is not democracy, nor anywhere near it.

    I was appalled at the preposed powers last term that the then Government wished to give Lord Mandleson, this is just as bad if not worse.

    At a point where current Government states clearly it wishes to give more power to the people it acts in the hypocritical fashion. The electorate, the public do not trust Ministers to act alone. If this passes as is then any form of trust, of faith between Government and the electorate will be gone.

    My Lords it is now upto you to stop Tsar`s actually becoming thus. I cannot vote, I used mine back in May for possibly the only time in a few years I`m able. The consensus between you the Lords that this appears bad, is noticeable from all Parties.

    This goes back to Lord Haskey`s question ” What are you there for ?” If you cannot stop what appears to be oppressive, damage to civil liberties and fairly scrutinise this Bill, you may all as well pack up and go home.

    • Lord Norton
      Lord Norton
      08/11/2010 at 6:07 pm

      Carl.H: I agree. Ministers should not have the power to do virtually as they wish through the use of orders to overturn what Parliament has previously decided. The measure as it stands is not giving power to the people but rather to ministers, and at the expense of Parliament.

  4. Lord Norton
    Lord Norton
    05/11/2010 at 6:28 pm

    Lord Blagger: There hasn’t been a change of heart. The House makes a substantial difference to legislation (as evidenced by Meg Russell’s research) and in recent years has strengthened its capacity to identify problems with Bills before they even reach committee stage. The work of the Delegated Powers and Regulatory Reform Committee, the Constitution Committee, and the Joint Committee on Human Rights do sterling work; they are also efficient, given that they cost little to run.

  5. Lord Blagger
    05/11/2010 at 8:00 pm

    That’s not the case. You make 2,500 amendments a year. You can’t even tell how many of those are ministerial changes on the direction of the party in power. It’s a lot. You can’t dispute this either because you would be saying that the FOI department of the Lords has lied.

    As for costs, you’ve made statements without mentioning any numbers. Why’s that? Either you don’t know what they are, or you don’t want them known.

    Over half a billion over the next five years. In reality, its likely to hit the 600 million mark.

    Lots of things are worth it, but not at that price. I’d like a Ferarri, it will be worth it. Will you fund it? I doubt it.

    Here’s a solution. The tax payer stops paying you. You start up Lords Aid. People can then donate if they think you are worth it.

    • Lord Norton
      Lord Norton
      08/11/2010 at 6:05 pm

      Lord Blagger: I can dispute it, for reasons previously given. There are no authoritative figures for how many amendments tabled by the Government have their origins in the Government Department, in promises made to backbenchers in response to amendments moved at committee stage, and in response to recommendations made by select committees. The Constitution Committee has variously written to ministers about problems with Bills, with the result the minister has introduced amendments to the Bill. It is quite common for backbenchers to move amendments at committee stage and for the minister to subsequently meet the backbencher to discuss how the point of the amendment can be met by a government amendment at Report stage. It is a constructive process, but one that masks the origins of the amendment. Government amendments do not necessarily embody points emanating from Government.

      The cost of the House of Lords per person in the UK is apparently about £3 a year. I don’t think that’s bad value at all.

  6. Howridiculous
    05/11/2010 at 9:09 pm

    Dear Lord Norton,

    I say ‘bravo’ to the Constitution Committee for issuing such a damning report.

    It beggars belief that a Government pledged to increase the strength of Parliament could introduce such a Bill. It also beggars belief that the Government could not foresee the controversy doing so would cause. I’m afraid to say I think the Bill as drafted demonstrates a complete lack of understanding at ministerial and official level of our system of governance and of Parliament’s place in it.

    I very much hope that the Bill is substantially amended during its passage through your House.


  7. Alex
    06/11/2010 at 4:49 am

    Far from making the quango state more accountable, this bill seems to do the exact opposite. Why should anyone trust a Tory when they decry quangos or Labour illiberalism, ever again?

  8. Gareth Howell
    06/11/2010 at 8:07 am

    Instead of an Act of Parliament being amended or repealed by a later Act, a power is given to ministers to decide to change it

    Is this a bill to provide power to change an act by saying so within the said act itself, or a bill merely to highlight existing methods of putting through regulations on the nod?

    Lord Blagger’s first reaction seems relevant to the question, if superficial.

    • Lord Norton
      Lord Norton
      08/11/2010 at 6:10 pm

      Gareth Howell: It doesn’t change anything within a previous Act as such, but rather allows ministers by order to make changes to public bodies (such as the Information Commissioner) without requiring a new Act to amend the original Act that established the office.

      • Gareth Howell
        09/11/2010 at 9:29 am

        As long as the Orders to make changes to public bodies are recognisable, ie distinguishable from the original Act, it should not matter.

        There are so many campaigners for the most footling things and the worst of causes, that an unacceptable change would surely come to the attention of the wider public?!

        If the order changed the aims and objectives of the Public body, ie the main purpose of the act, then the Minister would find if hard to do, in any event.

        If the Order changed the meaning of one word,
        such as “bicycle”, then it would scarcely be worthy of comment.

        If the meaning of the Word “Information” changed, re “Information commissioner” it would need a new act! And boy doesn’t it change!?

  9. Gareth Howell
    06/11/2010 at 8:22 am

    Instead of an Act of Parliament being amended or repealed by a later Act, a power is given to ministers to decide to change it

    Is this a bill to provide power to change an act by saying so within the said act itself, or a bill merely to highlight existing methods of putting through regulations on the nod?

    Lord Blagger’s first reaction seems relevant to the question, if superficial.

    The substance of the change to the act would
    have to be sufficient for it NOT to be read
    as mere tinkering by staff regulation, in the minister’s name, in which case it would be excessive.

    Staff changes with regulations are usually concerned with the meaning of certain words
    (Eg Dft meaning of the word “bicycle”.

    The new legislation would enable Ministers to dismantle and rearrange at will in a far easier fashion. Is this a good thing? I’m ambivalent; it’s a pretty draconian bill in giving powers to the Executive

    Ah! now this submission to the blog transforms Lord Norton’s close argument and shows up the full implication of the change!

    arghhhhhhhhhhhhhhh! No! EACH quango must be dealt with one by one!

    It is high time they are dealt with also; not a moment too soon.

    Can you imagine the Sections of the mental health act being changed by the Minister willy nilly!

  10. Lord Blagger
    06/11/2010 at 10:56 am

    I very much hope that the Bill is substantially amended during its passage through your House.


    Not a hope. The Lords are in on the game. They have already passed lots of bills that contain dictatorship laws enabling ministers to enact laws and regulations by dictate.

    • Lord Norton
      Lord Norton
      08/11/2010 at 6:11 pm

      Lord Blagger: Even if true, nothing about a trend ensures its continuation.

  11. Senex
    08/11/2010 at 7:41 pm

    LN: I provided a link under BM (8/11/2010) to an academic piece by Andrew Majzlik, a teacher at Guildford College. Perhaps you might take the time to read it?

    He talks of the Weimar Constitution where he says:

    “The Reichsrat, the upper and less important house of the legislature, was much less powerful than the Reichstag. The Reichsrat was little more than an advisory body. It was able to veto legislation passed by the Reichstag but this veto could be overridden by a two-thirds majority in the Reichstag.”

    This seems to be the correct way to do things. You might even consider using the piece for your own students by expanding the scope to the creation of the Federal Parliamentary Republic of Iraq looking for parallels and the powers of the President.

  12. vicpendis
    09/11/2010 at 7:15 am

    Carl.H quite rightly observes: ‘I am against Ministers having what appears carte blanche, this is not democracy…’ The State Pension scheme as it is applied to expatriate pensioners is an apt example.

    All workers and their employers make mandatory contributions to the National Insurance Fund in order to purchase their pensions which Lord Goodhart QC considers to be ‘an implied contract’ with universal application. The original legislation excluded from pension entitlement anyone ‘absent from Great Britain’, later confining the exclusion to the payment of uprating. The European Union would not tolerate such discrimination and issued a decree to preclude its application within member countries. UK pensioners in any EEA country have uprated pensions just as those paid in Britain.

    The legislation contained a further clause by which the Secretary of State was empowered (evidently at his sole discretion) to waive the exclusion by regulation and it was used to uprate those in the USA and such unlikely countries as Serbia, Turkey, Israel and the Philippines. In effect the Minister employs this provision – unique to the UK – in order to discriminate against those pensioners mainly in Commonwealth countries by freezing their pensions at the amount which applied when first they qualified or emigrated as existing pensioners.

    Lord Carswell adjudged ‘Once it is accepted that pensions should be paid to contributing pensioners resident abroad, then no justification remains for paying some less than others and less than UK residents’ while former Pensions Minister Lord Rooker, confessed ‘I have already said that I am not prepared to defend the logic of the present situation. It is illogical. There is no consistent pattern. It does not matter whether a country is in the Commonwealth or outside it. We have arrangements with some Commonwealth countries and not with others”(Hansard 13/11/ 2000).’

    In the judgment of the Court of Appeal (Civil Division), Neutral Citation No: [2009] EWCA Civ 749, Case No: C3/2008/2777, Lord Justice Cornwath’s concluded in respect of the Persons Abroad Regulations (emphasis added):

    ‘….There may be a more fundamental issue. Section 113, the enabling provision in the 1992 Act, is a straightforward, albeit draconian, exclusion of those “absent from Great Britain” from any right to benefits under Parts II to V of the Act, “except where Regulations otherwise provide”. The 1975 Regulations seem to go much further than one would ordinarily expect by way of exceptions. For the benefits in question they involve in effect tearing up the section and starting again with a different scheme, constructed by reference to the ordinary residence of the claimant or her spouse, and directed only to annual increments of benefit. It seems surprising, and possibly objectionable in principle, that such a radical change of approach should have been effected without direct Parliamentary sanction.

    To compound the iniquity, the annual Uprating Regulations which prolong the discrimination, condemning many of the 500,000 pensioners to end their lives in poverty, is categorised as a negative resolution so the House cannot debate it.

    Nor is DWP obliged to submit the Uprating Regulations to the Social Security Advisory Committee, insisting that, under the Social Security Administration Act 1992 (c5) ‘Consultation is not necessary because the Order forms part of the regular annual uprating requirements’. As a final blow to equitable procedure, DWP admits it has never issued an Impact Assessment for an Instrument which does so much harm to so many.

    As Lord Norton observed: ‘The measure as it stands is not giving power to the people but rather to ministers, and at the expense of Parliament’.

    • 10/11/2010 at 12:43 am

      Vicpendis is absolutely clear with his comments.He could also have included, in addition to his findings, Government legislation that changed the course of the State Second Pension (SERPS).
      In 1978 the Government pamphlet NP34 explaining the “Additional Pension” stated quite clearly that, “unless you contribute towards it you will gain no benefits from it”. In saying that it becomes the property of the contributor. This was confirmed by the DWP’s own legal team in 2002. Therefore,
      the Governments decision to freeze, for one year only, the annual increase to the SERP, for both pensioners at home as well as those living in some overseas countries,then use the proceeds (some 335 millions yearly)to reduce the National debt must be classed as illegal.When Robert Maxwell tried it on with his Daily Mirror Pension Fund,using it for other purposes it was declared illegal.
      Further, unless future annual payments are increased to compensate for the one year loss, the 335 millions will continue to be deducted every year.The SP2 is not a case where todays workers pay for todays pensioners.There is no army of pensioners waiting in the wings ready to receive the SERP. As the pamphlet NP34 states, “No contribution, no benefit”
      The Government should be taken to task over this obscene legislation.

      Yours sincerely
      Disgusted of Deal

  13. Senex
    09/11/2010 at 8:35 pm

    Its interesting that the Act of Proclamations 1539 (31 Henry VIII c.8) brings what is an established practice by Kings under the primary authority of statute in Parliament. Before this Henry VII is changing statutes without the approval of either house of Parliament and we could easily at this time have gone down the route of totalitarianism; fortunately the practice is abandoned. Wise man Henry VII

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