PUBLIC SERVICES REFORM (SCOTLAND) BILL: STAGE 1

Speech delivered on Thu 7th Jan 2010

Under other circumstances, I might well have commented on the important issues that Adam Ingram raised, but Mr Swinney might not be surprised that I want to concentrate my remarks on part 2, which relates to order-making powers that the Scottish Government wishes to bestow on itself. On that issue, Mr Swinney intervened and was intervened on at some length this morning, but I was left a little depressed by the content of the exchanges, because it was by no means clear that the Government really gets the concerns that Liberal Democrats and others have about part 2. I commend John Scott's comments on the Scottish Parliamentary Corporate Body.

The finance secretary has offered several concessions, which are not unwelcome, but you can bet your boots that, when a minister prior to a stage 1 debate offers an enhanced super-affirmative procedure to Parliament by way of reassurance, we are dealing with a Government and a minister that have got things seriously wrong.

Let us look more closely at part 2, which provides a classic textbook example of what are known as Henry VIII powers. Section 10 will enable ministers by order to do anything

"which they consider would improve the exercise of public functions".

They could abolish or amalgamate a body that carries out a function and the function itself, change that body's constitution or create a new public body. That was the point of the exchange to which Ross Finnie referred in his point of order earlier this afternoon.

Those powers do not relate only to Government quangos, although that is bad enough; they cover all the independent parliamentary commissioners that have been established by or are under the jurisdiction of the Parliament, including Audit Scotland, Scotland's Commissioner for Children and Young People and the Scottish Human Rights Commission.

John Swinney: Will the member take an intervention?

Robert Brown: I want to make a little progress.

Section 11 empowers the Scottish ministers to add to the extensive list of bodies in schedule 3, in case they have forgotten anybody. Dare I say it, the cabinet secretary appears not to have heard of the Paris principles, under which the independence of such bodies should be protected. Certainly, nothing that he has said to the Parliament today gives reassurance that he understands what those principles mean in practice.

John Swinney: Would Mr Brown care to add to his remarks the fact that I confirmed this morning that ministers do not have any powers to act in such a fashion? It is absolutely central to the bill that the power of decision making remains with the Parliament in those circumstances.

Robert Brown: I am coming on to that.

Section 13 is, if anything, even worse, because it allows Government by order to remove financial costs, administrative inconveniences or even a criminal or civil sanction, and to change a statutory order, public general act or an act of the Scottish Parliament to do so. John Swinney seems to want the royal dispensing power that was claimed by the Stuart kings and which led to their removal in 1649 and again in 1688. I wonder whether he, like Charles I and James VII, regards Parliament as an administrative inconvenience.

John Swinney: What about my intervention?

Robert Brown: I would rather not deal with such matters in the face of interjection from a sedentary position.

I commend the comments of Derek Brownlee's colleague Oliver Heald MP. Admittedly, his name is not widely known to the public; nevertheless, he led for the Tories at Westminster on the Legislative and Regulatory Reform Bill, which is not dissimilar to the Public Services Reform (Scotland) Bill. Mr Heald described the Westminster bill as "a threat to Parliament". He said that it was

"a major move ... towards government by Ministerial edict ... Parliamentary corner-cutting"

and that the winners would be

"civil servants and Ministers". -[Official Report, House of Commons, Standing Committee A, 28 February 2006; c 6.]

I asked myself why Mr. Brownlee's approach here is different-

Derek Brownlee: Will the member give way?

Robert Brown: I am sorry, but I cannot.

I suppose that the difference between them is that, down there, the Conservatives claim to be the principal Opposition, whereas up here the job of the Conservative Party appears to be to sustain the SNP Government.

I hope that no one on the Tory, or indeed the Government, benches would dispute that the powers in part 2 are extraordinarily wide. That is what has led to the huge concern among stakeholders and across the parliamentary committees. The powers would, for example, allow the abolition by order of both the role and the office of the Auditor General for Scotland and the Scottish Public Services Ombudsman.

Derek Brownlee: Will the member take an intervention?

Robert Brown: No, I am sorry.

Parliamentary commissioners could be transferred into quangos under ministerial direction. Despite Mr Ingram's recent exchange with members, ministers could allow the scrapping of the entire children's hearings system because children's panels are bodies listed in schedule 3 and their functions could be scrapped or changed under section 10. [Interruption.] I hear mutterings of "Rubbish" from ministers, but they could do all those things if they were so minded.

Mr Swinney says that having the powers is okay because ministers would still need the approval of Parliament for the orders concerned. That is true, but the orders, draft or otherwise, are not amendable by this Parliament. There is no stage 1 examination of the careful kind that is done by the committees considering the bill, and the cabinet secretary's proposition totally ignores any proper basis for when subordinate legislation procedure, enhanced or not, is appropriate and when full parliamentary scrutiny of the legislative process is appropriate. The difference is one of principle. Professor Alan Page said:

"primary legislation should be about important matters of principle, and subordinate legislation should be about picking up the detail."

Aileen McHarg developed the point as it relates to the parliamentary commissioners. She said that a statute

"is an important guarantor of public bodies' independence and enables them to resist inappropriate attempts by Government to interfere with their functions. A public body can say to Government, 'You might want us to do that, but we cannot do it, because our statute says that our functions are X, our duties are Y and our powers are Z.'"-[Official Report, Finance Committee, 15 September 2009; c 1492-93.]

Mr Swinney seems to think that the only principle is the need for public economy and efficiency as stated in the current bill. Important though that is, the principle is the purpose set out by the Parliament for the existence, functions and operation of the bodies in question.

The Parliament has been remarkably restrained in its dealings with this minority Government. Part 2 is not a step but a mile too far. I strongly urge the minister to think again about the matter, to recognise the reasonable limits of ministerial power and to scrap part 2. As it happens, the existing powers in the UK Deregulation and Contracting Out Act 1994 appear not to have been used by this or indeed previous Governments in any event.

To read the debate in full please click on the link below:

Related Link:

PUBLIC SERVICES REFORM (SCOTLAND) BILL: STAGE 1.