The coalition’s approach to legislation is neither conservative nor liberal. That much is clear from the new Quangos (Bonfire) Bill, or the Public Bodies Bill as it is more properly called in parliament.
It is through this legislation that the government intends to reform nearly 500 public bodies. Of these, 192 are to be scrapped: their functions will either be brought under ministerial control, devolved to local government, privatised or abolished altogether.
Announcing these plans last month, cabinet office minister Francis Maude promised greater transparency. But when his bill was published at the end of October, it soon became clear that individual decisions would receive little or no parliamentary scrutiny.
Just a week after its publication – and shortly before a stormy House of Lords second-reading debate on Tuesday – the bill received a skewering from the Lords constitution committee. Peers complained that the bill would give ministers extensive powers to amend primary legislation by ministerial order. Instead of the normal legislative process, affirmative resolutions from both houses of parliament would be all that was needed to give a ministerial signature the force of law. Any government minister would do, however junior.
Most of the public bodies facing reform or abolition were created by an act of parliament. Some even had royal charters. Take, for example, the Revenue and Customs Prosecutions Service, established as an independent prosecutor by the Commissioners for Revenue and Customs Act 2005. Despite the service’s statutory underpinning, a minister would have power to abolish it and transfer its functions to the Crown Prosecution Service. But because the bill is drafted so loosely, the minister could just as easily abolish the CPS instead and transfer its powers to the already-defunct Revenue and Customs service.
Another statutory office to be abolished by ministerial order is that of chief coroner. The appointment of Judge Peter Thornton QC to that post was announced at the same time as the decision to abolish it. He remains a senior circuit judge at the Old Bailey and it will be interesting to see whether he is asked to sit as a deputy assistant coroner in a future high-profile case.
The power to overturn an act of parliament by ministerial order is known, disparagingly, as a Henry VIII power.
As the Lords committee says, such powers ‘are pushing at the boundaries of the constitutional principle that only parliament may amend or repeal primary legislation’.
If there are good reasons for departing from this principle, ministers should tell us what they are. No doubt the government will say that there are too many changes for each one to be the subject of an individual bill. All the more reason, then, to provide effective scrutiny. As the committee says, 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’.
Sadly, this is not the first time that ministers have taken such wide powers as these. The Legislative and Regulatory Reform Act 2006 allows a minister to make any provision that the minister thinks would remove or reduce any burden resulting from any legislation.
These would be staggeringly wide powers if the act did not include a number of safeguards. One of these is a requirement to consult interested parties. The 2006 legislation also provides a ‘super-affirmative resolution procedure’, requiring ministers to consider representations and parliamentary recommendations before making a draft order. And there are further restrictions: the effect of the order must be proportionate to the policy objective; the order must strike a fair balance between the public interest and the interests of those adversely affected; and the order must not be of constitutional significance.
But many of these safeguards were introduced in response to a public outcry over the ‘Parliamentary Scrutiny (Abolition or Avoidance) Bill’, as Tony Blair’s opponents called it. No such safeguards will be included in the new quango-burning legislation unless, perhaps, the government is forced to introduce them.
A search of Westlaw UK reveals that just nine ministerial orders have been made under the 2006 act, one of them little more than a month ago. The new bill is expected to generate several hundred such orders, with even less opportunity for public scrutiny and parliamentary debate.
As well as listing the public bodies that the government intends to abolish and those that ministers are planning to merge or modify, there is also a long list of bodies that ministers can choose to scrap, merge or change – we don’t know which – at some point in the future. These include the Judicial Appointments Commission, the Law Commission (which advises on law reform), the Legal Services Commission (which administers legal aid) and the Legal Services Board (which supervises the regulation of lawyers).
All are covered by clause 11 of the bill, allowing ministers to add them to the lists of those facing the chop or the salami slice. Others unexpectedly threatened in this way are the Chief Land Registrar, the Public Guardian, the Civil Justice Council, the Official Solicitor and the children’s service Cafcass.
It seems unlikely that the government could do away completely with the important functions performed by these public bodies. But all of them are now operating under a cloud. If this bill becomes law, ministers will be able to scrap or refashion them with little more than the stroke of a pen. Their independence has been lost.
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