UK: Public Bodies Act Orders: The Bonfire Is Lit

This blog has been quiet for a while and will shortly be terminating. In the spirit of the Public Bodies Act and having regard to "efficiency, effectiveness and economy" (see section 8 of the Act), it seems right to contemplate its abolition. However, as draft orders are rolled out under the Act, a process which has now begun and many more draft orders can be expected shortly, I and colleagues here will be continuing to take a close interest in the subject for anyone who cares to instruct us.

So what is the present position? In a nutshell:

• the Act reached the statute book on 14 December 2011 (see here);
• the Commons has decided that, ordinarily the departmental select committee or, in the case of Cabinet Office proposals, the Public Administration Select Committee should have the scrutiny role in the Commons (see here);
• the Lords has made provision for the Merits Committee in that House to be its scrutiny committee (see here);
• the Joint Committee on Statutory Instruments will exercise its usual function of checking the drafting and technical issues on the draft orders;
• two Public Bodies Orders have now been laid, one for the abolition of the National Endowment for Science, Technology and the Arts (NESTA) (see here) and the other for the abolition of the Courts Boards (see here). Both have been subject to reports form the Merits Committee (see here and here) and are proceeding on the affirmative resolution procedure;
• quite a number have been promised very shortly, including that for the British Waterways Board and its replacement by the new Canals and Rivers Trust;
• various statutory consultations required before an Order be laid have now been completed and some, including those for the Railway Heritage Committee (1 March), British Shipbuilders (26 April) and S4C (4 May) have yet to conclude.

Whilst the scrutiny process for draft orders in the Commons seems still to be a little inchoate, the position in the Lords is much clearer, the Merits Committee having made clear (see here its 50th Report for the current session and its reports on NESTA and the Courts Boards Orders) that it will aim to get out an initial report within 15 days of an order being laid, setting out its recommendation, if it makes one, for the adoption of enhanced affirmative procedure. In doing so, it will look at the s.8 statutory tests, whether the statutory consultation requirements have been met and at various other matters such as the effectiveness of the consultations and the implications of points made during the debates on the Public Bodies Bill. In what appears as something of a criticism of the MoJ on the draft Courts Boards Order, it has also made clear that it will expect the Government to present a properly argued case that the tests in the 2011 Act have been satisfied, supported by objective evidence. What though will happen if it finds that this is not done?

That brings us neatly to the general question of whether the Act makes adequate provision for Parliamentary scrutiny and involvement and whether Parliament is going to rise to the challenges which this presents. As I indicated at a seminar which we gave today, jointly with the Hansard Society on the subject of "Orders which change Acts", this gives rise to some difficult questions. On the one hand, whilst much was made during the course of the bill for the 2011 Act about the horrors of Henry VIII powers, it has to be conceded that Parliament's record in scrutinising and vetting public bills is in some respects far from wonderful and the treatment of secondary legislation needs to be seen in this context . Take for example the case of Public Bill Committees that are strictly controlled by the Whips to avoid real examination and debate of contentious provisions and then those cases where whole sets of provisions are parachuted into bills by the Government at the last moment, often in the second House. In contrast, on looking at the consideration given to bodies affected by the Public Bodies Act during the Bill's passage, now to be followed by enhanced affirmative procedure in many cases, it can be argued that they are getting pretty full and fair treatment. On the other hand, there are issues with delegated legislation and particularly the process under the Act which suggest that the Executive has been given too much control over the legislative process, which are likely to present problems and which can be seen as a wasted opportunity for Parliament in its very necessary function of scrutinising and maintaining a check on the Executive. For example:

• unlike Legislative Reform Orders, there is no power of veto during the process (something which the Government very firmly resisted);
• as with statutory instruments generally, Parliament has been given no power to amend;
• there are huge time constraints - the 30, 40 and 60 day periods for affirmative and enhanced affirmative procedure include non-working days (other than when the Houses are not sitting for more than 4 days) and allow almost no time for reflection;
• Parliamentary Committees, particularly the departmental select committees, already have very significant workloads and it may be wondered whether those with a a lot of orders to consider (eg the Efra and Justice Committees) will be able to cope;
• in the Commons, the problem of overlapping committee remits means that some committees will have to play second fiddle to others, unless the Liaison Committee in some way intervenes;
• stakeholder interests may have to chose between Lords and Commons scrutiny committees in making their submissions or be in both places at once;
• there is in some respects a lack of complete transparency in the process eg in so far as informal dialogue will take place in advance of the laying of orders and appears to be encouraged between departments and committees which will be out of the public view (this is likely to include the submission of draft orders in advance of laying); also, transfer schemes don't have to be lodged with draft orders, though one was informally with the NESTA Order (see here).

Whilst I may be in a minority, it seems to me that Parliament really ought to have been given an opportunity to amend Public Bodies Orders presented to it, even if (as happens eg with special procedure orders), government retains a right to override the result then reached. It may well be that, with good work from the scrutiny committees, Ministers will exercise judgement in all appropriate cases to withdraw drafts and submit replacements with material modifications where these are truly merited (as the enhanced affirmative procedure allows) but, then again, this may be wishful thinking. Either House has of course the ultimate remedy of failing to approve the necessary affirmative resolution at the end of the process. As the Companion to the House of Lords Standing Orders makes clear, and this reflects the position taken in the Conventions Committee Report of 2005 and an exchange of letters with Lord Strathclyde in 2010, the Lords does retain "an unfettered freedom to vote on any subordinate legislation submitted for its consideration" (see here). Maybe we will see it doing so more frequently in the future.

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