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This year, another place has decided to experiment with a shortened form of pre-legislative scrutiny. The Minister and I will shortly be discussing the Child Maintenance and Other Payments Bill, which had its Second Reading in another place last week. It has been agreed that the first two Committee sittings will be evidence-taking, before that House settles down to discuss it in the normal way. If this modified procedure is a success, it will be suitable for far more Bills.

Like the noble Baroness the Lord President of the Council just now, I am therefore a devoted fan of pre-legislative scrutiny. However, there is a gap in our legislative armoury which my noble friend has quite properly identified in the amendment.

It often takes a minor earthquake—perhaps losing a court case—to persuade the Government of the day to bring in an amending Bill. Even then, it takes forever to squeeze it into the legislative programme for a particular year.

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When Parliament is faced with a Bill on such a complicated subject as pensions, it is almost inevitable that it contains clauses with perverse effects or which do not achieve what was intended. Rather than drip-feeding those niggles into the government machine, it would be far better to have a thorough

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review of the resultant Act after a period. My noble friend Lord Fowler, with all his experience, believes that that should be four years, and I agree. It is a point on which the consensual alliance between the Minister and me may, I suspect, break down. Large chunks of Parts 1 and 2 of the Bill are hideously complicated and they are there for life. Who is to say now that the amended dispute resolution procedure in Clause 16 will prove satisfactory; or that the new arrangements for carer’s credits and the deductions in qualifying years for a full state pension will benefit women to the extent that Ministers say they will; or that 68 will remain the appropriate age to receive a state pension? A properly orchestrated review would identify such problems and point to the need for alterations, not only administrative alterations but also legislative ones.

In the past, I have made adverse comments about skeleton Bills that are filled in with innumerable statutory instruments. The financial assistance scheme—about which we talked at some length, although it is only a clause—is a prime example. The Merits Committee has said time and again that orders should not be made, except for the purposes defined in their parent Acts. I could not agree more strongly. Altering Acts by statutory instrument years after their enactment because failings are identified or circumstances change is not the way that government should behave. A review, such as that proposed by my noble friend, which leads to the correction of administrative mistakes and, if necessary, to an amending Bill, is a worthy adjunct to our parliamentary procedures, and I support it unequivocally.

Lord Oakeshott of Seagrove Bay: My Lords, I am delighted to give the official support of these Benches to the amendment tabled by the noble Lord, Lord Fowler, and I am equally delighted that we are ending this stage of the Bill in this House with both of the main official Opposition parties singing again from the same hymn sheet.

In his introduction, the noble Lord discussed the rather incorrect report in the Guardian on Monday of the great triumph last week. The report was even more interesting than that because it named every speaker apart from the two of us from these Benches, my noble friend Lady Thomas and me. If you read it, you would not be aware that only the Liberal Democrats were officially supporting that Motion. However, the Guardian has its own ways. In the Daily Telegraph on Saturday, Ian Cowie and Harriet Meyer gave an excellent, full and proper account, and so did the Sunday Telegraph. It is interesting how the wheel turns.

I was particularly pleased to hear the noble Lord, Lord Strathclyde, saying on the Statement how much he welcomed post-legislative scrutiny. We hope that all noble Lords will take this opportunity to strike a blow for that today.

The noble Lord, Lord Norton of Louth, pointed out the Law Commission report. I have done a little digging on that. Before this debate, I asked the Library to check what the latest state of play on that was. I

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remind noble Lords that on 10 January the previous Leader of the House said that the Government were grateful to the Law Commission for its work on post-legislative scrutiny—let me say that it was excellent work—and that they were consulting within government before responding formally to its proposals. Indeed, she said that she was attracted to the notion. This afternoon, the Library checked with the Law Commission to see where this had got to. A fair summary of the Law Commission’s reply was, “We don’t know when the Government will respond, and we don’t even know which Minister is in charge of seeing that we get a response”. That is six months on from the reply I quoted from the Leader of the House. On the assumption that we hear nothing more this Session, it will be at least a year from the publication of the Law Commission’s report before, at the very earliest, the Government give their reply. You do not often hear long grass growing quite so loud, do you? So, whatever the result of this amendment to the Bill, will the Minister undertake to find out from the new Leader of the House who is in charge of responding to the Law Commission’s report, and when that response will appear?

The Hansard Society a couple of years ago also made a similar and strong point that Parliament should review the laws it passes. It referred to the fact that when a law is enacted and implemented, its provisions bind society, unless it is subsequently repealed or amended, and that it is often only after its implementation that the effects and implications of an Act can be truly assessed. But it is at that point that Parliament usually shifts its focus to other measures. So, rather than leaving post-legislative review to chance, there should be an agreed process to assess how legislation is working in practice. It says that,

Funnily enough, it then mentions the Child Support Agency, which is exactly the point that the noble Lord, Lord Skelmersdale, rightly brought up,

We remember well the previous Pensions Bill. This would be about the time that, had we had this provision in that Bill, we would be undertaking post-legislative scrutiny. I refer in particular to the position of the Pensions Regulator which is now for the first time likely to be tested in court. The regulator has just served his first contribution notice in the case of Sea Containers. The Pension Protection Fund is now fully up and running. Looking back three or four years is the ideal time to do post-legislative scrutiny on that Bill.

It is high time that we stopped talking and voted to start scrutinising. Pensions are the ideal place to start.

Baroness Hollis of Heigham: My Lords, I shall not be supporting the amendment, but I have a lot of sympathy with both the proposal and many of the arguments made this afternoon. The noble Lord, Lord Fowler, mentioned SERPS, which, with your Lordships’ help, I had the delight of seeking subsequently to untangle in a way that did not betray any understandings or misunderstandings of what was envisaged.

Let me give some other examples. There was the 1995 legislation and what turned out to be the

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inadequacy of the minimum funding requirement, and the failure, as a result, to put in place a pension protection fund—a central discontinuance fund—which might have abated that risk. There was the failure when we were dealing with stakeholders, and I was the Minister responsible. We chose not to go for a compulsory contribution from employers because of the argument about burdens on business. We were led to believe that employers would none the less do the decent thing. Not surprisingly, something like 85 per cent of them did not. They erected the schemes but did not contribute; they remained shell schemes. There was a clause in the Bill allowing compulsion to be introduced for 3 per cent. It was not fleshed out; it did not happen; and we therefore have to have personal accounts and a brand new start again.

Another example is pension credit, which I am sure we would all agree on. I was delighted that pension credit has done so much to address the poverty of our elder pensioners. Perhaps we did not fully appreciate the fact that if the basic state pension stays price-linked and pension credit is earnings-linked, you have built in an impetus with the best of intentions to bring more and more people into the thicket of means-testing. That is what we have done. All those issues might have been picked up by some version of review.

What perhaps surprised me a little was that although we expect Ministers to churn about within departments every 18 months or so, I had not appreciated that senior civil servants churn on average, so far as I can see, about every three years within a department. So departments come to a topic with a departmental agenda but not necessarily with a departmental memory. The result is that, despite all the best intentions and the highest intelligence in the world, you do not actually have a learning loop informally built into the system in which experience can be brought to bear on continuing processes. That is why in my view we need a more structured way of dealing with this. I am not sure whether the amendment is the right way, any more than an independent commission is, and I am hoping that my noble friend can suggest ways that the department will be dealing with this. Certainly we have been doing that for some women's pension issues—gender issues—and that has been extremely valuable.

In most areas of social security, if there is a problem with benefits, because they are instantly available—people are instantly eligible and instantly pick it up—we can see problems very quickly. With pensions, we are laying down ground rules that may not mature to affect the individual until 20, 30 or 40 years down the road. If there is no ongoing process of scrutiny, by the time that problems see the light of day naturally, people may have already lost entitlement and rights and may have behaved in ways that end up being against their financial best interest. For all our sakes, we want to avoid that.

I am not persuaded that the amendment is necessarily the right way to proceed; but I am persuaded that there is an issue here that needs to be addressed. I hope that my noble friend can tell us how the department proposes to proceed with this.



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Baroness Turner of Camden: My Lords, I am not necessarily opposed to the amendment, but I do have some questions for its supporters. The Bill will not become fully operative for quite some time. Four years seems to be a very short time after which to undertake post-legislative scrutiny. By its nature, pensions legislation is concerned with long-term stability. We are anxious to ensure that people expect legislation to be in place and operative for a very long time, until the time when they become entitled to their pensions. If there is to be constant scrutiny, people will wonder about the degree of stability that exists in pensions legislation. So I have some doubts about whether the wording is appropriate.

Although, as my noble friend Lady Hollis said, issues often arise that have not been thought about when legislation is discussed in the House, I remind her that the issue of the minimum funding requirement was raised in an amendment at the time that that Bill was before the House, as was the whole issue of the wages index. My friend Lady Castle and I fought on a number of occasions to have the wages index linked to the state pension provision. These issues come up during the discussion of legislation without it necessarily requiring post-legislative scrutiny at frequent intervals to provide effective legislative cover for pensioners and future pensioners.

Baroness Howe of Idlicote: My Lords, I was very impressed by what I heard about post-legislative scrutiny as an instrument in many instances and I support that whole approach. I regard it as even more important for this Bill, not least because the complications that, as we all know, arise almost at once when expectations are not matched tend to be put to one side by both Ministers and civil servants, rather than facing up to the longer-term implications.

I am not certain that I would not have preferred to have had the original amendment tabled by the noble Lord, Lord Oakeshott, but I can see that, as a compromise, this may be a step towards confronting the issue. If we can have at least one go at assessing in four years’ time just what the effect has been, with a Select Committee looking at what has taken place, it will, I hope, make a firm recommendation that there should be another look in another four years’ time.

There are some very important aspects of the Bill. There is the whole recognition by the Government of the Turner report view of the role of carers, redressing some of the awful behaviour towards those who have carried out that role in the past. It will be good to see exactly how that is working out. We will want to see the effect of the very welcome amendment tabled by the noble Baroness, Lady Hollis, on the nine years of contributions that we can add to people’s earnings. It was passed last week, and I hope that it will stay in the Bill when it goes to another place.

It would be very helpful to know those things, as well as life expectancy trends. Life expectancy has changed really quite considerably. On a personal note, I would like to know whether the gap between men’s and women’s life expectancy has narrowed to the point where I really can press for the annuities question to be taken on board. For all these reasons, I

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warmly support the amendment of the noble Lord, Lord Fowler, as a step forward, but I rather hope that someone will recognise the need to do this rather sooner than in four years’ time.

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Baroness Thomas of Winchester: My Lords, I have one small point to add to the point made by the noble Lord, Lord Skelmersdale, about delegated legislation. One of the many benefits of post-legislative scrutiny of the Bill would be that it would enable Parliament, practitioners and the public to know which parts of the Bill have been triggered by the appropriate delegated legislation and which have not, and whether there is any timescale in which the rest of it may be triggered. Clause 36, for example, deals with orders and regulations. Subsection (3) says:

How do we know when these regulations will be made? That is one virtue of post-legislative scrutiny which is not brought out enough. People think that all parts of a Bill come into force at the same time once it is enacted, which is very far from the case.

Lord McKenzie of Luton: My Lords, I rather hoped that we could end with consensus across the House on this last amendment. We thought long and hard about this matter, but unfortunately I cannot support the amendment. I suppose that the noble Lord, Lord Skelmersdale, and I can at least say that we have the satisfaction of being reunited with our Back-Benchers on an issue.

The noble Lord, Lord Fowler, has argued strongly for the value of post-legislative scrutiny. Indeed, we support the idea that greater effort should be given to this issue. I begin by reminding noble Lords of the Government’s commitment to maintaining the consensus that has been established through a transparent review of the assumptions underlying the reform programme. We have already set in train a programme of work to develop an evidence base in consultation with a range of stakeholders that can underpin the future evaluation of our reforms. This includes a series of recent workshops with academics, pension experts, stakeholders and other government departments to explore their views. We aim to produce an evidence and strategy document later this year. I reject the suggestion that the Government believe that their job is done when legislation is passed—a point pressed by the noble Lords, Lord Norton of Louth and Lord Fowler. That is not the Government’s view.

Alongside what we are doing, noble Lords may be aware—indeed, several noble Lords commented on this—that the Law Commission has reported on post-legislative scrutiny, and we are very grateful to it for its valuable contribution. It rightly recognises that one size does not fit all and that any system of post-legislative scrutiny will need a degree of flexibility. Different Acts will need to be treated in

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different ways. Some will have longer timescales than others before any assessment can be made of how they are working out in practice. In some fields, new legislation may be only a small part of the overall picture. In others, a new Act may be absolutely central to the policy and administrative framework. The Bill falls within that definition. We continue to give close consideration to the Law Commission’s report into how parliamentary and other structures can best deliver its objectives. I do not think that anyone wants a structure that involves the formulaic, time-consuming and burdensome scrutiny of every Act, irrespective of need. Nor do I think that a structure that leads simply to a re-run in Parliament of high-level policy debates would be appropriate, and, to be fair, that is not what the noble Lord proposes.

We are consulting across government before we respond formally to the commission’s proposals in the coming months. I am conscious that perhaps I should reply in more detail to the noble Lord, Lord Oakeshott, to give him a clearer indication of quite who will be responsible and who will be driving forward that response. In those circumstances, it would be wrong for me to pre-empt the Government’s response, but we support the idea that greater effort should be given to post-legislative scrutiny, which will enable Parliament to assess whether legislation is having the intended effect.

Perhaps I may remind noble Lords that the key recommendations of the Law Commission include, for example, a joint parliamentary committee with a flexible remit to decide which Acts should receive scrutiny, how, by whom and when. In a sense, by putting the amendment in the Bill, we might pre-empt that recommendation if it were something that the Government might wish to adopt. I assure noble Lords that any proposals involving Parliament will be open to debate in this House and in the other place. I hope that I am right in thinking that the noble Lord’s main objective is to ensure that we are fully committed to keeping this Bill, when enacted, under review to make sure that we are in a position properly to judge whether it is working out in the way intended.

There are two elements to the amendment. The second part, to provide a power to arrange subsequent scrutiny, would not substantively add anything to the inherent ability of the Secretary of State to keep legislation under review. The first part, which requires post-legislative scrutiny after four years, could interfere with the flexibility needed to make sure that any review is conducted at the most appropriate time. My noble friend Lady Turner touched on that in particular. The Bill provides for a package of reform measures that will come into effect over approximately the next five years. It would be premature to carry out any post-legislative scrutiny before the reform measures have been implemented or have had time to bed in. For example, we will not, within four years, have implemented the reforms to simplify state second pension or have abolished contracting out for defined contribution schemes.

Neither is it right to suggest that there is no scrutiny going on at all. Post-legislative scrutiny is currently carried out by Select Committees, including

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the Work and Pensions Select Committee. This is in addition to internal departmental reviews. We need to be concerned about adding another layer in the suggested form, which I believe would be inflexible. The reforms to the basic state pension will take effect for people reaching state pension age in April 2010. By the time the scrutiny would have to take place, there would have been little time to gauge the effect of the reforms. It would take place a year after those provisions came into effect.

I would hope to have persuaded the noble Lord, Lord Fowler, and other noble Lords not to press the amendment, because I do not believe that we are apart in recognising that post-legislative scrutiny has an important role to play. But to put it in the Bill with a restricted time limit, and with the use of a term where we have not identified quite what post-legislative scrutiny means and how it should generally be conducted, I would suggest is not appropriate.

Lord Fowler: My Lords, frankly, that is one of the more disappointing replies that I have heard. If it convinces anyone, I would be utterly amazed. It may convince some people who have already made up their mind, but I cannot think that it has convinced anyone else. The noble Lord says that he hopes for consensus: there has been substantial consensus, apart from him and one or two speakers making half-speeches more or less in his favour.

The noble Lord says that he is committed to reform. It is about the slowest process of reform that I have come upon in the House and it is rather invisible. We have had report after report talking about post-legislative scrutiny. I made my maiden speech on post-legislative scrutiny six years ago. How long will this process of consultation and consideration take? Basically, the noble Lord has said, “Not this Act: we don’t mind about other Acts, but not this Act”. The issue of pensions is exactly where post-legislative scrutiny should come, because so much money, including so much public money, is at risk.

I thank everyone who has taken part in this debate, including my noble friend Lord Norton, for his splendid speech, my noble friend Lord Skelmersdale, the noble Baronesses, Lady Howe and Lady Hollis, and the noble Lord, Lord Oakeshott. I referred to him as that other multi-millionaire, the noble Lord, Lord Ashcroft, but I meant the noble Lord, Lord Oakeshott. I also thank the noble Baroness, Lady Turner, who I think was wrong. The Constitution Committee did not regard four years as too long; it favoured scrutiny three years after commencement. Even if she thinks that, the amendment goes on to say that the Secretary of State “may arrange subsequent scrutiny”. That gives as much scope as any Government would require.

Lord McKenzie of Luton: My Lords, can the noble Lord be a bit more explicit about what he thinks post-legislative scrutiny is? What format will it take, by whom will it be done and what will the process be?


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