Clause 70 - Agreement between a Minister and designated body

Natural Environment and Rural Communities Bill – in a Public Bill Committee am 10:30 am ar 5 Gorffennaf 2005.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs) 10:30, 5 Gorffennaf 2005

I beg to move amendment No. 132, in clause 70, page 28, line 18, leave out 'unconditionally or'.

Photo of Eric Forth Eric Forth Ceidwadwyr, Bromley and Chislehurst

With this it will be convenient to discuss the following amendments:

No. 133, in clause 71, page 28, line 36, leave out 'unconditionally or'.

No. 134, in clause 72, page 29, line 15, leave out 'unconditionally or'.

No. 136, in clause 72, page 29, line 19, leave out 'unconditionally or'.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

The Government have referred to part 8 of the Bill as a tidying-up exercise following the creation of the Department for Environment, Food and Rural Affairs, and an opportunity to put into legislation the ability to make agreements with other bodies. Some of that is simply conducive to the pursuit of DEFRA's normal activities. The Opposition do not have a problem with the principle of what the Government are attempting. We do not believe in big government and therefore we are more than happy in principle for the Government to devolve some of their functions and activities to other bodies, as long as that takes things closer to the ground and the people who are affected by those decisions.

While I was studying the clauses, however, my eyes lit on the word ''unconditionally'', which causes me concern. The Government want, in clauses 70, 71 and 72, to allow an agreement to be made unconditionally with an outside body. Agreements under clause 70 would be with a ''designated body''; those under clause 71 would be with a ''non-designated body''; and those under clause 72—something of even more concern—would be between a ''designated body'' and a ''non-designated body''.

The clauses thus cover a sort of subcontract arrangement; the Government would be subcontracting to one body, and, under clause 72, that body could subcontract further. I do not believe that such an arrangement should be unconditional. It is essential that there should be, as the phrase goes in the Bill, ''specified conditions''. Those might be fairly wide-ranging, but the idea that a Minister might, to take the provisions of clause 70(1) as an example,

''enter into an agreement with a designated body authorising that body to perform an eligible function of the Minister . . . wholly . . . generally'' and ''unconditionally'' suggests a pretty wide-flung opportunity. It is too wide for the delegation of ministerial responsibilities. If the delegation is made ''wholly'', ''generally'' and ''unconditionally'', any strain of accountability has clearly been lost.

Clause 71(1) uses the same phraseology, but about an agreement between the Secretary of State and a non-designated body—one that is one step removed from Government. However, clause 72, as I suggested, gives me the greatest concern. Under that clause, the   designated body A—perhaps half a step removed from Government, subcontracts with a non-designated body B, which could mean anyone

''authorising B to perform an eligible function of A''

That would be a subcontracted subcontract. The same phraseology is present in the clause, with the words ''wholly'', ''generally'' and ''unconditionally''. That causes me great concern and we need at least to challenge the Government on the use of the word ''unconditionally''. Some conditions should be attached to the agreements.

In a few moments, we shall consider another amendment relating to clause 72, hingeing on much the same points, but I shall not trespass on to that now. The point is clear: we support the principle of the Government devolving functions and agreeing their provision with other bodies, which is right and proper in a modern, democratic form of governance. Nevertheless, a theme of accountability to some elected body is necessary. As we are primarily dealing under the Bill with non-elected bodies, that must mean the Government. That is why the use of the word ''unconditionally'' causes me such concern. I hope that the Minister will allay my worries or at least understand my point, as we may wish to return to the matter at a later date.

Photo of Roger Williams Roger Williams Opposition Whip (Commons) 10:45, 5 Gorffennaf 2005

I, too, believe that the Minister needs to reflect on the word ''unconditionally'' as applied to a designated or non-designated body. I know that it has become more common for Government bodies and local authority bodies to pass across some of the functions that they have a duty to carry out or wish to carry out to other bodies, and I do not disagree with that process. However, it occasionally leads to difficulties whereby that other body finds itself in financial difficulties, perhaps having contracted with the private sector for the supply of goods and services. The question then comes of who is responsible to the private sector to make good the money owed by virtue of the provision of services and goods. Is it the designated body, the non-designated body or DEFRA? Perhaps the Minister will reflect on that when answering the points raised by the amendments tabled by the hon. Member for South-East Cambridgeshire (Mr. Paice).

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

The effect of this group of amendments, as we have heard, is to restrict Ministers' ability to delegate functions unconditionally. Hon. Members have expressed concern that that goes too far and have questioned the need for such delegation. It might be worth while first to say something about why the provisions are in the Bill.

We have deliberately created the powers in chapter 1 of part 8 on a broad and flexible basis in order to enable Ministers to respond more easily to the need for changes in delivery: to increase efficiency, to deregulate and to improve joined-up service to customers. For example, we have already touched on the ways in which those powers are likely to be of importance in helping to join up the working of the Forestry Commission and Natural England, to the benefit of customers.  

An agreement under clause 70 will also be the means by which functions currently performed by the Rural Development Service will be delegated to Natural England. The powers are therefore fundamental to what the Bill is seeking to achieve. They must be quite broad because we are trying to future-proof, if such a phrase exists, so that we do not have to delay sensible change. I apologise, Mr. Forth. I see you grimacing at the use of the phrase future-proof, and I have some sympathy with that. The powers must be quite broad because we are trying to ensure that they stand the test of time, so that we do not have to delay sensible change by possibly many years because of statutory constraints on moving functions around.

Various sorts of delegations of functions are envisaged that will be potentially valuable as we seek to join up and improve rural delivery. To turn to the specific provisions in the amendments dealing with whether agreements may be unconditional, the Bill uses standard wording to explain how a Minister or a body may—and I stress the word ''may'', not ''must''—enter into agreements for the performing of eligible functions. In fact, the terms found in the clauses are virtually the same as those found in the Deregulation and Contracting Out Act 1994. That includes the use of the phrase

''unconditionally or subject to specified conditions'' when a Minister is contracting out a function. They seem to have stood the test of time—indeed, they have been future-proofed—and provide a useful precedent. The Minister would expect to be able to exercise judgment as to when to apply conditions to an agreement and when to make it unconditional, and would do so appropriately. The effect of the amendments would be to require the Minister always to make an agreement subject to specified conditions, irrespective of whether the Minister wished to impose any conditions. That seems to me to be particularly perverse.

There are already sufficient safeguards incorporated into subsection (2) of both clauses 70 and 71, so that the agreement can be cancelled at any time or the Minister can still perform the function if necessary. The Minister remains fully accountable for the exercise of the functions; it is only the delivery that is contracted. Therefore, if the receiving body is not acting appropriately where an agreement has not been subject to conditions, safeguards are already in place.

I suggest that the amendments, in themselves, are unnecessary. However, in looking carefully at the specific amendments—I am grateful to the hon. Member for South-East Cambridgeshire for the careful way in which he has approached things in this Committee—I have considered the clauses again. In many ways, the amendments do not go far enough. In the light of my reflection, I am minded to discuss further with colleagues whether we have the balance right in the provisions. It might be that the clauses would be better restricted to DEFRA-related functions only. Clause 71 is so restricted, and it is possible that we have left clause 70 too broad. I should like to consider what is required in order to achieve the core purposes of the Bill, and that might narrow the   application of the powers. I shall work closely with the key delivery bodies and other colleagues on the matter, and come back to the House with a clear line on it on Report. Then we can give due consideration to the issues raised by the debate. I hope that, on that basis, hon. Members will withdraw their amendments.

Photo of James Paice James Paice Shadow Minister (Environment, Food and Rural Affairs)

Well, Mr. Forth, we are starting Tuesday in a good mode. It is not often that I am told that I am not going far enough, and I am grateful to the Minister for saying that. He is right that clause 71 is restrictive and clause 70 is not. Even more seriously, though, there is clause 72. That covers what I would call the second-tier agreement between a designated body and another body. Under clause 70, the Government could make an agreement with a designated body—one of the 19 listed in schedule 7, including the Wine Standards Board, the National Forest Company, a very small but worthwhile body, the Gangmasters Licensing Authority, which the Chancellor has announced that he is getting rid of, and many others. Then clause 72 allows one of those to contract with any non-designated body. Therefore, if it is not a DEFRA function in clause 70, it certainly is not in clause 72. I appreciate the point, and I am grateful to the Minister for having read all the clauses that are in front of him, and for having picked up the general purport of my amendments. I look forward to seeing what he comes back with on Report, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of David Chaytor David Chaytor Llafur, Bury North

On clause 70(4), in respect of his power to add a body to the list in schedule 7, or to remove one from it, is my hon. Friend the Minister aware of any bodies that are in line to be added to the list, or that he would expect to remove from it?

Photo of Jim Knight Jim Knight Parliamentary Under-Secretary (Rural Affairs, Landscape and Biodiversity), Department for Environment, Food and Rural Affairs, Parliamentary Under-Secretary (Department for Environment, Food and Rural Affairs) (Rural Affairs, Landscape and Biodiversity)

I am grateful to my hon. Friend for that question, as I am to all hon. Friends for theirs. The short answer is no, but we set out the powers in order to allow ourselves to deliver a streamlined, more customer-focused service. While the answer now is no, we want to make sure that the legislation stands the test of time, and that is why we have set it up as we have done.

Question put and agreed to.

Clause 70 ordered to stand part of the Bill.

Schedule 7 agreed to.

Clause 71 ordered to stand part of the Bill.