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The Parliamentary Under-Secretary of State, Department for Work and Pensions (Baroness Hollis of Heigham): Clause 85 sets out the procedure for issue and publication of codes of practice. Before a code of practice, including a revised code of practice, can be issued by the regulator, a draft of the code must be published for consultation with persons whom it considers appropriate and anyone the Secretary of State identifies.
Before a code of practice may be issued, the regulator must send it to the Secretary of State which, if it approves the code, will lay before Parliament or, if it disapproves, must publish details of its reasons for withholding consent. The normal procedure then applies associated with either negative or affirmative regulations.
Amendment No. 344 would require each code of practice to be subject to the affirmative procedure, which we would resist because we believe it would create unnecessary delay and restrict the ability of the regulator to respond quickly to changes and address changes needed to its code of practice.
However, the noble Lord, Lord Skelmersdale, raised a couple of different issues. On the negative/affirmative issue, perhaps I may put a proposition to him which on that point he might find helpful. It is that we do not move away from the negative procedure simply because some of the codes may be extremely technical and not appropriate to come to Parliament. Others may be general.
I am happy—and I hope that the noble Lord, Lord Oakeshott, will find this helpful—that wherever a code of practice is being laid under negative procedure, I write to the two Opposition spokes people and place it in the Library so that they will know it is there. They will not then have to rely on their researchers to be informed that it exists.
That would give ample opportunity to pray against it and make a judgment about whether it is appropriate to bring it on to the Floor of House. I would not wish to make all codes of practice affirmative because they will vary in their degrees of specificity and it might be a waste of the time of the House. If it would be helpful for me to give advance notice—indeed, I would be happy to send copies of each instrument—noble Lords can then decide whether they wish to pray against them. This might meet that objective. Let me pause for a moment and see whether that would be helpful.
Lord Oakeshott of Seagrove Bay: I shall obviously have to consider that. How far in advance would this be? What sort of timescale or notice would we get from these letters? What is the intention?
Baroness Hollis of Heigham: I have no idea. I am trying to find a way through a dilemma here. It is quite
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clear that some codes of practice, though not legally binding, can none the less be used evidentially—that was the phrase we used last time. It is therefore important, at least to start with, that people have an opportunity to scrutinise them. Some codes of practice may be sufficiently technical not to do so. When Secretary of State lays a code of practice before Parliament, there is normally up to 40 praying days against. When he lays it in the Library, I will undertake to notify noble Lords so that as a result there are 40 praying days in which to look at it. I do not know whether that would be helpful but it is a way of us doing the noble Lords' research work for them. It allows noble Lords to discriminate in a way that cannot be done if we make blanket negative or affirmative regs.
Lord Skelmersdale: I shall respond to that as the noble Lord, Lord Oakeshott, has done so. Personally, I would find that extremely helpful and I am sure that my successors will, too. I take it that this suggestion will be binding, but more on the department than the Minister of the day. As the noble Baroness will remember, in Opposition the research work available is next door to nil, although I have to accept that under recent arrangements it has got marginally better, but only marginally, in this House. All of us in Opposition are still extremely jealous of our MP colleagues and what they manage to achieve.
I assume from what the Minister has just said that at the same time that the instrument is sent to the Clerks of the Joint Committee it would also be sent to the spokesmen of the day in this House. It would be the easiest way for everybody.
Baroness Hollis of Heigham: My concern is entirely for this House. What they do down the other end is a matter for arrangements down there. I was giving an undertaking. I have been in the situation myself and it is very difficult to monitor negative regs and keep apace of them, particularly in the DWP. I was trying to think my way through the dilemma by what I would have found useful. I am making the offer that when laying the instrument in the Library, I shall write to the noble Lords and do my best to ensure that a copy of the instrument is enclosed. That would make approximately 40 days' praying time available for the noble Lords to decide. It is important and the noble Lords will decide that perhaps one code in two, three or seven may be appropriate to be debated on the Floor of the House.
As to the other point raised by the noble Lord, Lord Skelmersdale, on whether codes of practice are legally binding, they are not, but they are evidential. The reason is that a code sets out the regulator's interpretation of good practice. Therefore, any person to whom a code is relevant—for example, a trustee taking action within a "reasonable time"—may take an alternative course of action as long as he complies with the law. In the event that the regulator was of the opinion that that trustee was not complying, the onus would fall on the trustee to show that, although he did not follow the code, he is still within the law. In other
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words, there may be a way to get to the terminal point that is not along the route laid out by the codes of practice. If the trustee can establish that, this procedure would be acceptable.
It not legally binding because it would put in rigidity—at least as rigid as that on the face of the Bill. The last thing one wants is for a code of practice to have that degree of rigidity but it does carry strong evidential weight. The onus of proof is on the trustee to show that he has arrived at the objective by a somewhat different route, perhaps, than is acceptable to the code of practice. I am advised that that is the reason why it is not legally binding. With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.
Lord Skelmersdale: Not yet, because the noble Baroness has not answered my third point, which concerned the complicated drafting of the clause compared with Clause 301(1).
Baroness Hollis of Heigham: One area that I have difficulty describing, explaining or negotiating is drafting. Having had the pleasure of being Ministers, the noble Lord and the noble Lords, Lord Higgins, Lord Hunt of Wirral and Lord Lucas, will know that what happens is that policy intent goes via parliamentary counsel. Parliamentary counsel determines the precise phraseology of clauses and it is the judgment of parliamentary counsel that this is the appropriate way to meet the objectives. So I cannot help the noble Lord any further.
However, I am perfectly happy to ask our lawyers to write to him explaining why the clause has taken the form that it has. I can deal only with the policy intent and try to get parliamentary lawyers to explain why it has come back in the form that it has, rather than taking what would appear to be a more obvious route. I am sorry that I cannot help the noble Lord any further than that but, as I know that he has been in this position himself, I expect the utmost sympathy.
Lord Skelmersdale: Of course I am sympathetic, but I was fishing for exactly the response that I received: an explanation from the draftsmen, or from lawyers in the department, of what I still regard as a curious and unnecessary form of drafting. However, I have responded to the very generous offer that the noble Baroness made to us about advance warning of negative resolutions. I am very pleased with that. Of course, codes of practice are the regulator's interpretation of good practice; I accept that. However, as the noble Baroness and I pointed out in opening the debate, they have the sanction of the Secretary of State, so they are a little more forceful, shall we say, then they would otherwise be. I shall continue to consider the matter, but in the mean time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 168 not moved.]
On Question, Whether Clause 85 shall stand part of the Bill?
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Lord Higgins: I shall speak briefly because my noble friend Lord Skelmersdale dealt in considerable detail and with expertise with the strangely drafted form of the clause. The trouble with giving parliamentary counsel instructions is that when you come months later to debate the Bill in Committee, you often find a clause that is totally incomprehensible and unrecognisable, so you wonder what on earth it is about until you realise that it is the thing that you originally gave instructions about.
I have only two trivial points to make about the clause. It states:
that appears to be appropriate.
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