Whitehall-watchers will be well aware that the UK Government is pushing ahead with its plans to carry out a bonfire of the quangos. The legal vehicle for this is the Public Bodies bill, awaiting its second reading in the Lords on Tuesday (9 November). As the policy underlying the bill is still being developed, the bill itself does very little by way of incineration, but confers on UK ministers the power to do so if they see fit. So while the future of bodies like the Infrastructure Planning Commission or National Consumer Council doesn’t look rosy, they aren’t directly abolished by the bill.
One of the many tangles that the bill faces is the effects of devolution, and the fact that many UK-level quangos exercise devolved as well as reserved/non-devolved functions. I’ve commented on some of these before, HERE. In the normal course of matters, and in accordance with the Sewel convention, this would mean that the UK could only abolish them with consent of the Scottish Parliament, National Assembly for Wales or Northern Ireland Assembly, as the case might be. The bill tries to pre-empt that; clause 9 says that consent on behalf of a devolved legislature can be signified by the appropriate devolved administration, rather than requiring the consent of the legislature itself.
On one level, this is to be welcomed; it is (so far as I can recall) the first time that statute has recognised the prerogatives of the devolved institutions in this. But on another – when it comes to understanding the separation of powers – it’s really quite bizarre. It takes a power that belongs to the legislature, and puts it in the hands of the executive. Every report that has looked at the working of the Sewel convention (which applies to all three devolution arrangements, but is most developed in relation to Scotland) has called for greater control over it to be exercised by legislatures rather than executives, not less. This was, in particular, a major theme of the Calman Commission’s report (see Part 4). It’s been rightly criticised, in this context, by the Lords Constitution Committee (see paragraph 10), in a report that also criticises the extensive use in the bill of what lawyers call ‘Henry VIII’ clauses (clauses which confer the power on ministers to repeal provisions set out in primary legislation).
This is evidently a case where the UK Government is legislating in haste, or trying to. It’s in such haste that the leisure to repent is occurring while the bill is still in Parliament. (It also seems not to be the only case where Nick Clegg has found himself swamped by the intricate nature of government.) But to adopt such a heavy handed and constitutionally inappropriate way of dealing with the devolution aspect of this is a vivid reflection of the limited interest of the Coalition government in getting these right. I’ve been remarking on this trait for a long time (see HERE and HERE), so it’s no surprise, but it’s yet another case where the Government is slipping up because it won’t take devolution seriously.
Ironically, though, Parliament doesn’t have the only word on this. Under the Sewel convention, the Scottish Parliament will certainly have to vote on the bill, and approval of the Northern Ireland Assembly will need to be signalled (though that is often done by the Executive rather than by the Assembly as such). The position in Wales is rather less clear when it comes to conferring executive powers on Welsh ministers. It would be interesting to know what consultation the UK Government has had with the devolved administrations about this, and whether it thought through the position in Scotland, in particular. It’s certainly created something of a political mess to go with the constitutional one.