Contribution
My Lords, I will also speak to Amendments 267ZA, 267AA and 267AB in my name in this group. Schedule 7 tries to bring together a whole bunch of legislation in a meaningful and sensible way so that it can handily be used in future. I could have extended some of these amendments, but I decided to focus Amendment 266A on paragraph 35(5)(b) of Schedule 7, which relates to Clause 89 on the delegation of functions. I could have considered a whole number of these, because this is a classic Henry VIII clause—put something in primary, shove something through regulations and, hey presto, a whole Act can change before our very eyes. In particular, Clause 89(6), which I address in Amendment 267AB, stood out to me.
My concern is that we start off with this agency, the enforcement officers and all these different things, but Clause 89(1) says:
“The Secretary of State may make arrangements with a public authority”.
I do not think “a public authority” is defined anywhere else in legislation at all. This is the first time I have seen it defined, as
“a person certain of whose functions are functions of a public nature”.
That could be a whole bunch of people. What does it really mean? Are they seeking to act in the public interest, or in a different way?
The Explanatory Notes do say what they are, but, as the Minister and the Committee will know, they are not part of legislation. One of the reasons for bringing this out is to try to understand from the Minister precisely what it means. The consequence of these bits of the legislation is that, by statutory instrument, this novel area that we are getting into could be changed very quickly, away from what might have seemed a sensible agency, though I appreciate that the noble Lord, Lord Carter of Haslemere, would rather have operational independence.
This is why I have peppered through my amendments in this group the very specific point that it should be a public authority that has civil servants in it and is not a non-ministerial department. I think that there are about 24 non-ministerial departments. Perhaps really only two—the Supreme Court and the Crown Prosecution Service—should be non-ministerial, recognising the accountability that, understandably, Parliament and the public expect.
The difference of a non-ministerial department is that it is accountable to Parliament. The device to do that is principally through the Select Committee in the House of Commons, perhaps the Public Accounts Committee, not so much in the House of Lords. Therefore, significant parts of the work being done are left to an occasional accountability meeting, whereas if civil servants are not in a non-ministerial department, the Secretary of State is directly responsible and can be held to account by Parliament and can hold those civil servants to account. I am therefore very nervous about how easy it will become to change Clause 89(6) and what that then means. It would be better for the Government to have more in the Bill about what it is.
As we are starting to get into Part 5, could it be that the public authority starts to become not-for-profit groups of solicitors who start to have these enforcement functions? Could arms of trade unions suddenly start enforcing and be able do all these different elements and to take employers to court so this starts to spread? The reason for my amendments is to try to get better legislation about what this is supposed to be. I am desperately trying to make sure that the only people to whom these things can be delegated will be civil servants who honour what the Government have set out in Part 5 and that the variety of enforcement officers and the fair work agency will be directly accountable and have the executive powers of the Secretary of State. That can be done only if people are civil servants and they are not in a non-ministerial department. I beg to move.