Henry VIII or Henry II? Ministers need to rethink powers in the Public Bodies Bill

There is often Parliamentary controversy when the government seeks to give itself 'Henry VIII powers' - extensive powers through secondary legislation. The last government's Legislative and Regulatory Reform Act (2006) had a torrid time in Parliament for that reason. The House of Lords Constitution Committee has flagged similar concerns about the Public Bodies Bill due for second reading in the Lords on Tuesday and the Institute for Government has produced a briefing note (PDF, 68KB). In normal circumstances, it would be controversial enough to propose one bill to take powers to implement the outcome of a review of the entire quangos landscape through secondary legislation. The key feature is that, as the House of Lords points out, secondary legislation does not allow debate – yet many of these bodies were the subject of extensive parliamentary debate when they were set up.

A sword of Damocles over public bodies

Equally, if not more concerning yet, is clause 11. This gives Ministers the power to add, at any time, any body listed in Schedule 7 of the bill to earlier lists of bodies to be abolished, merged or have its functions modified. The sword of Damocles thus hangs over bodies which have been established to act free from ministerial pressure and interference. Included in that list are bodies as sensitive as:

• The Parole Board
• HM Chief Inspector of Prisons
• The Low Pay Commission
• The Office of Fair Trading
• Ofcom.

The rationale of all of these bodies is to take decisions without being beholden to ministers. The hidden threat will inevitably affect relationships with departments and ministers – as fearless independence could lead to loss of function.

Not all arm's length bodies are equal

The answer is for the government to recognise in the bill the point we made in our Read Before Burning report. Not all arm's length bodies are equal. Some need more entrenched independence than others.  Those whose credibility and ability to function depend on genuine freedom from ministerial interference need to be removed from Schedule 7 of the bill. Otherwise, the bill risks being both Henry II and Henry VIII. It was Henry II who asked to be rid of that turbulent priest. The danger for ministers is that the simple existence of these powers will undermine the very rationale for the existence for many of these bodies in the first place.