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Baroness Barker: I thank the noble Baroness for that reply, which was helpful. Her point about the place of research in the code of practice is important, and I understand why different formats have not yet been put in place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 166 to 168 not moved.]

Lord Goodhart moved Amendment No. 169:

"( ) A code shall be issued as an annex to an order made by the Lord Chancellor bringing the code into effect."

The noble Lord said: In moving Amendment No. 169, I shall speak also to Amendments Nos. 173, 175 and 177. Amendment No. 174 is also in the group but, on looking at it again, it seemed to have got in by some mistake; it serves none of my purposes with the group.
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The first purpose of moving the amendment is to raise a discussion of the procedure for issuing the code. Under Clause 41(2), a draft of the code has to be laid before Parliament. It takes effect after 40 days unless, within that time, either House has resolved not to approve it. In effect, that is the equivalent of the negative resolution procedure for adopting statutory instruments. However, the code is not itself a statutory instrument. Why not? After all, it has legal effect. Under Clause 40(4) and (5), someone acting on behalf of the person lacking capacity has to have regard to the code, and so does a court or tribunal. Why not convert the code into a statutory instrument by publishing it as an annexe to an order made by the Lord Chancellor?

As the procedure stands in the Bill, it is distinctly unusual. I recognise that there are precedents for it, such as a code under the Access to Justice Act 1999, which was approved by a parallel procedure corresponding to the affirmative resolution procedure. However, in that case the code was again not a statutory instrument. Having such a structure is confusing. It creates something that is a quasi-statutory instrument that is subject to a similar procedure, but is not quite the same thing. It means, for example, that the code is not published as a statutory instrument. If it were, it would have a statutory instrument number, which would be the simplest way in future to find it because statutory instruments are duly indexed. I am not sure how the code will be indexed so that it can be looked up by someone who wants to find it.

The procedure in the Bill is not unique, but it is unusual and I do not think it desirable. Therefore, Amendments Nos. 169, 173 and 177 would convert the code into something that was a statutory instrument, which would automatically be subject to the negative resolution procedure under Clause 61(2). Will the Minister consider adopting what I believe to be a better procedure?

10.30 p.m.

Amendment No. 175, coupled with consequential Amendment No. 177, deals with a related but different point—is the negative procedure appropriate for the code or should the affirmative resolution procedure apply? That point was made by the noble Baroness, Lady Greengross. It was also examined by the Delegated Powers and Regulatory Reform Committee. A memorandum from the Department for Constitutional Affairs to the Delegated Powers and Regulatory Reform Committee, printed on page 13 of the report of the committee on the Bill, states in relation to the code that:

The words "clause 40 (1)" is a misprint for Clause 41(1), which was the intended subsection. But the requirements of Clause 41(1) are very flimsy. They require the Lord Chancellor to consult the National Assembly for Wales and such other persons as he considers appropriate. That could be no one at all. The code is of central importance to the Bill, as everyone recognises. It is surprising that the
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DCA thought that the requirements of Clause 41(1) were adequate to justify the negative procedure and it is more surprising that the Delegated Powers Committee accepted the view of the DCA and did not mention the code in its report.

Amendment No. 175 will require the use of the affirmative procedure—a resolution of each House. That would be the correct procedure, although, in practice, the code has received wide consultation. I accept that the affirmative resolution procedure would be somewhat heavy-handed for the minor revisions of the code which will be necessary from time to time. But the Delegated Powers and Regulatory Reform Committee has proposed a procedure in the past, when I was a member of it, that was accepted on several occasions by the Government, to require the affirmative procedure for the initial publication of the code and to move to the negative procedure for subsequent variations. If that appeals to the Government more than using the affirmative resolution for all variations to the code, as well as the original one, that would be a compromise that I would find acceptable. I beg to move.

Lord Alton of Liverpool: I support the spirit of the amendments that the noble Lord, Lord Goodhart, has tabled. In Amendments Nos. 174 and 175 the noble Lord is correct to direct us towards the affirmative procedures as being appropriate in such cases. The codes that we have discussed are of sufficient importance to warrant that level of parliamentary scrutiny and accountability. Anything less than that would send the wrong signal outside your Lordships' House, so I hope that the Minister will be sympathetic to the arguments that the noble Lord has advanced.

Baroness Greengross: I am aware that I brought this matter forward too early in the proceedings, so it is not necessary to repeat my comments.

Baroness Ashton of Upholland: I might have known that the noble Lord, Lord Goodhart, would find the mistake in the Bill. I can always rely on the noble Lord to do that and I am grateful to him. I feel a little like saying to your Lordships that I cannot quite win, because I take great note of the Delegated Powers and Regulatory Reform Committee. I was taught when I first became a Minister that it was a committee that I should not only take note of, but to whose requests I should immediately accede. If the committee had asked me to take action on this matter, I would have done so. I also urge noble Lords to accept that the Delegated Powers and Regulatory Reform Committee does a fantastic job. It holds the Government to account on these issues and makes recommendations.

Perhaps I may also say, in a slightly churlish manner at this hour, that we thought very carefully about this matter. It is worth saying that from the Law Commission's earliest draft Bill through to the Joint Scrutiny Committee, no one suggested that we needed to come forward with anything. It was our decision to make some kind of parliamentary scrutiny available. The scrutiny that we put forward was accepted by the Delegated Powers and Regulatory Reform Committee.
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The code will be statutory guidance and that is important. As the noble Lord, Lord Goodhart, knows, people will be under a duty to have regard to it. It will be admissible as evidence in relevant court proceedings. So I think that it has great force and that it is an important document.

The critical point is that we are going to consult very widely to ensure that the code is the best that it can be. It will be a living document. I expect it to change, grow and develop because, as time goes on, we shall wish it to do that. Therefore, I would be deeply reluctant to keep bringing it back in any way.

I recognise that those involved in Parliament will want to ensure that we develop the code. I shall be happy to ensure that all the Members of your Lordships' House and another place—well over 100—who have shown an interest in this matter receive copies of the code. I shall also be happy to ensure that they are invited to take part in the consultation. I have no desire to prevent that happening in any way. But, having brought in a procedure that we did not need to introduce and having cleared it with the Delegated Powers and Regulatory Reform Committee, which holds us to account on these issues, I am a little reluctant to bring back the code through the affirmative procedure. The way that we have talked about the consultation and the way that we have put it before Parliament, enabling people to pray against it if they wish to do so, has been right. In that spirit, I ask the noble Lord, Lord Goodhart, to withdraw his amendment.

Lord Goodhart: I am sorry that the noble Baroness did not reply to the first part of my argument—that is, that the code should be brought in formally as a statutory instrument rather than in this alternative way. However, that is a highly technical point which does not appeal to the Minister and it is not one that I shall particularly press.

The second point is one of substance and I am sorry that the noble Baroness has not felt able to be helpful on it. As I well know, the Delegated Powers and Regulatory Reform Committee does excellent work here and it brings independent judgment to these issues. But it cannot always be right and I am grateful to the noble Lord, Lord Alton, and the noble Baroness, Lady Greengross, for supporting me. However wide the consultation, in something as absolutely central to the Bill as this, it is plainly desirable that we use the affirmative procedure—at least for the approval of the initial code, even if not for subsequent variations of it. Therefore, I think that we are likely to bring back this matter for further discussions on Report. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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