The long awaited Public Bodies Bill was introduced to the House of Lords by Lord Taylor of Holbeach last 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 is due to have its second reading in the Lords on 9 November.
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 have already 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.