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Baroness Hollis of Heigham: I thank the Minister for that response. First, we welcome his commitment about consultation. Secondly, of course, he is right that one needs flexibility through regulation to align the new benefits that may be introduced in the future to displace some of the benefits that are currently listed. I entirely accept that. That may be one of those situations where regrettably a Henry VIII issue does come into play.
I am much more concerned, not about the need for some flexibility because benefits are continually being monitored, reviewed and altered, but that the Government may more malevolently seek to realign or introduce further heads of compensation, to increase the degree of clawback, and thus subvert the good intent of this Bill. To give an example, the Government, as I understand it, have indicated informally that they are not expecting to recoup for medical expenses if they have been paid for privately, but suppose a future government wanted to offset an award for medical expenses perhaps against free medical prescriptions. That would be a major change to the Bill, one that was unwelcome to claimants and compensators, and one, I suggest to the Minister, that could be made under his regulatory powers, not in the name of simple flexibility, but in a rather more malevolent way, to increase clawback and payments and compensators. As the Bill stands, the Minister could do that by regulation. Frankly, I do not think he should be allowed to do so.
Lord Mackay of Ardbrecknish: Perhaps I may help the noble Baroness and show that I have no malevolent intention. We fully intend that any changes made to Schedule 2 under this power should in any case follow the broad principle that compensation should be reduced only if a corresponding benefit has been paid as a consequence of the same accident, injury or disease. I hope that allays the noble Baroness's fear.
Baroness Hollis of Heigham: We shall reflect on it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 29 [Regulations and orders]:
Earl Russell moved Amendment No. 47:
The noble Earl said: This amendment again deals with the regulation making power. Perhaps I may clarify matters a little for the Minister. I understand perfectly clearly that there are some situations where the regulation making power is needed and indeed is the only appropriate way of dealing with things. My concern is that the power should be subject to parliamentary control. In that respect I am extremely grateful to the Minister for what he has already said. However, what is covered by this amendment is the affirmative/negative distinction. The amendment seeks to provide that the first regulations under each of the powers in the Bill shall be affirmative in order to find out exactly what is being done and how the power is being exercised. Since the debates on the Jobseekers Bill it has been an increasingly common principle in this House to apply that way of dealing with the regulation making power to new examples of its creation. I wonder whether this is a case in point.
I appreciate that the distinction between the affirmative and the negative is not quite as crucial in this place as it is in another because in another place very often what is negative really cannot practically be debated at all. But if, as happens in this wicked world, people find more need for legislation, it is not impossible that the body of regulations might go on increasing, as over the past few years it has done. I have already had the experience in this Chamber of wanting to pray against regulations and finding it impossible to get down a prayer within the requisite number of days. I am sure the Minister remembers the last case that happened, which I think was as recently as last July. One avoids that danger, which I believe is likely to be an increasing one, by the use of the affirmative procedure for the first example of the use of a new regulation making power. That is what the amendment attempts to do. I beg to move.
Lord Mackay of Ardbrecknish: This amendment refers to the first regulations under the Act; in other words, to the regulations that will have to be brought forward in the next Session of Parliament in order to allow us to get the Bill up and running and into implementation for victims as quickly as we possibly can. I shall return to my reason for making that point, but it is an important one to make.
The regulations we are talking about are not regulations some time down the road when, perhaps after the Act has been working for a while, we decide we need to consider some changes. They are the regulations which will be needed in order to get the new scheme up and running. I hope I have made it clear on a number of occasions that the consultation exercise we shall undertake will be all embracing and will include all those people who have an interest--I had better not
We are asked to make all the regulations the first time round--in other words, in the next Session of Parliament--by affirmative regulations. As the noble Earl rightly pointed out, there was a previous piece of legislation where we decided to do it that way. I do not believe that that would be a very good use of parliamentary time because I and my colleagues certainly have every intention of keeping both Houses very busy in the first Session of the new Parliament with some splendid legislation, which I have no doubt we shall bring forward. The first year of a new Parliament is always particularly busy.
Therefore, I believe it is a little unnecessary to go for the affirmative regulations which inevitably mean that they absolutely have to be debated in both Houses, unlike negative regulations where they have to be debated only if somebody in the House does not feel very happy about them and wants to have an issue aired. I would like to believe that, after we have consulted, many of the regulations will be perfectly acceptable to absolutely everybody and therefore we shall be able to pass them without necessarily taking up the time of Parliament. Indeed, as I have said, even if we deal with the matter by negative procedure, which is what I propose, with the exception of the matter that we have talked about a few moments ago, there is a mechanism for Parliament to challenge their implementation.
With that explanation I hope that the noble Earl does not believe that I am being underhand. As many of the regulations will be pretty close to the ones in the current scheme, I believe that it would be imposing an undue burden to ask for them all to be dealt with by affirmative regulations in what inevitably will be a very busy Session of Parliament.
Earl Russell: I would not dream of accusing the Minister of being underhand on the issue. In fact, he is quite remarkably frank and perhaps slightly franker at moments than he realises. I take the point about consultation, and I am extremely glad to hear it. But the Minister should stop and listen for a moment to what he has just been saying. He said that it will be possible, in a crowded Session, to make new laws--and these were his actual words--"without taking up the time of Parliament". If the Minister were to listen to those words from the Back Benches I wonder what he would hear. However, I shall not make a further issue of the point tonight. I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 31 [Power to make transitional, consequential etc. provisions]:
Baroness Hollis of Heigham moved Amendment No. 48:
The noble Baroness said: In moving this amendment I shall speak also to Amendment No. 49 standing in the name of my noble friend Lady Turner. This is a probing amendment. We want to get on the record the Government's interpretation. Obviously, the clause deals with transitional arrangements. Our first amendment is to delete entirely subsection (2) because we fear that, as it reads, the principle of retrospectivity contained in Clause 2 could be undermined. We do not believe that that is the Government's intention, but we believe that they need to spell out what their intentions are. We are giving the Minister an opportunity which I am sure he will warmly embrace.
Should the first amendment fail, our second amendment provides for consultation on any regulations which attempt to disapply Clause 2. I beg to move.
Page 14, line 33, leave out subsection (2) and insert--
("( ) A statutory instrument containing the first regulations or first order under any section of this Act (other than an order under section 33) shall not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.
( ) A statutory instrument containing subsequent regulations or a subsequent order under any section of this Act (other than regulations under section 23) shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
Page 15, line 25, leave out subsection (2).
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