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I am not very impressed with the so-called compromise being offered by the Government on when their form of post-legislative scrutiny should take place. Many advocate scrutiny after three years. I have proposed four years, but with the addition that the Secretary of State can carry out further scrutiny at any stage later on, which I think meets many of the points that the Minister put. The Government propose their form of post-legislative scrutiny not in 2012 or 2015 but 10 years hence by the end of 2017. Frankly, it puts a whole new time-scale on the plea, “Make me good but not yet”. Even then it sounds as though it will be only half good because I suspect that the review being offered is the Secretary of State’s own review and not that of a Select Committee. However, I may be wrong on that. I am afraid that, as regards the timing, the offer is impossible to accept. I suspect that that does not come as a vast surprise to him, the Government or the department.



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4.30 pm

I also do not accept the argument that we are now running out of time. The forthcoming business of the House of Lords is not a state secret; it is set out in the programme of Forthcoming Business, and for Wednesday 25 July and Thursday 26 July it is set down that consideration of Commons Amendments may be scheduled. I stand ready to respond to whatever new proposals the Government wish to make.

I will be brief, as I have rehearsed my argument at earlier stages of the Bill. In essence, it is that some of the worst mistakes take place not because legislation is badly drafted, but because it is wrongly implemented. In other words, pre-legislative scrutiny may be important, but checking the legislation after it is passed to see that it is being implemented properly is also essential. We are not concerned with repeating the arguments used during the passage of the Bill, but in checking the outcome. That process of checking what happens after the Bill becomes an Act is supported by, among others, the Hansard Society, the Law Commission and by the House of Lords Constitution Committee. It has also been strongly endorsed by a number of influential individuals. One said:

That was the noble Baroness, Lady Amos, when she was Leader of the House.

Another former Minister said that she advocated post-legislative review,

That was Margaret Beckett, former Foreign Secretary and at one stage deputy leader of the party opposite. Perhaps the most interesting intervention was by a current member of the Cabinet, who said:

That was Peter Hain, the Secretary of State in charge of this legislation, who is now resisting the amendment.

The trouble is that, when it comes to it, Ministers are in favour of post-legislative scrutiny in principle but not when it comes to their own Bills. It reminds me of the position with departmental Select Committees when they were set up by my noble friend some years ago. All Ministers thought that in general it was a good idea, as long as it did not apply to their department. In post-legislative scrutiny, they do not want to run the risk that it may be pointed out that their plans are not working out. I suggest that that is wrong and that the earlier the intervention the better, from the point of view of the public and the taxpayer.

Pensions are a prime example. At an earlier stage, as the Minister said, I gave an example of legislation of my own, the Social Security Act 1986, which reduced and changed the amount of SERPS that widows or widowers could inherit. My then Minister of State,

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John Major, promised a major publicity campaign. We both left the department in 1987, there was no publicity campaign, and the department published the wrong advice in a leaflet. A Select Committee carrying out post-legislative scrutiny would have picked that up, and it may well have picked up the fact that the department was giving the wrong advice about the security of final salary occupational pension schemes, about which we were talking earlier, which led to the adverse finding against the Government in March 2006 by the Parliamentary Ombudsman. As the noble Baroness, Lady Hollis, fairly pointed out in our debate on 11 July, post-legislative scrutiny could have helped in avoiding the failure of stakeholder pensions and one of the unforeseen consequences of pension credit; bringing more and more people into means testing.

Potentially, the amendment could prevent error and avoid costly mistakes. What is the Government’s case? Up to now, it has been that the amendment is unnecessary. I am glad to say that they are now moving from their position that they do not need any advice. Now their position is that four years for post-legislative scrutiny is too early; for example, they say that the earnings uprating of pensions will come into effect only in 2012. However, the Bill is about much more than that. It is 65 pages long, with 70 pages of Explanatory Notes. To give but one example, the workings of the Personal Accounts Delivery Authority may be important for the success of widening pension ownership. Even the statement about the earnings uprating coming into effect in 2012 is not quite true; as the Minister said, the Government’s White Paper states:

Therefore, it could come in in 2015, and post-legislative scrutiny might want to point out the cost of that delay in extra pension credit. More generally, it might want to take into account any events of importance affecting pensions over the previous four years, which is the average length of a whole Parliament, after all.

The Government’s case ignores the point that my amendment explicitly gives the power to the Secretary of State to have further scrutiny. We should remember that a second Pensions Bill is behind this one; I doubt very much that all the unseen problems will be dealt with in one round of scrutiny.

In a sense, my next point is even more crucial than all my others. Some in the House may have their reservations about my amendment; the Minister clearly does. I hope that not all noble Lords share them; certainly, that was not the case in earlier debates. The amendment was originally carried by 141 votes to 138. It then went to the House of Commons. Any of your Lordships who wanted to check the argument used there for rejecting the amendment would be sadly disappointed. It was never debated. Ministers were never questioned. The guillotine came down before any Member of the House of Commons had the opportunity to say a single word. That is utterly destructive of the parliamentary process. The Minister says that

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the other place has decided, but it has decided without debate, questioning or words being uttered.

The new Prime Minister talks of restoring the authority of Parliament. I agree. The kind of parliamentary scrutiny by a Select Committee or some other parliamentary committee implicit in my amendment would certainly help that process. Equally, I am sure that guillotining Bills so that the Commons simply does not have the opportunity of even debating the amendments of this House is against the interests of anyone who believes in the effective working of Parliament. For both those reasons, I ask the House to support my amendment.

Moved, as an amendment to Motion E, Motion E1, leave out from “House” to end and insert “do insist on its Amendment No. 28”.—(Lord Fowler.)

Lord Norton of Louth: My Lords, I support my noble friend in pursuing his original amendment. The Government have only themselves to blame for the fact that the Motion is before us. Had they responded to and acted on the Law Commission’s report on post-legislative scrutiny, there would be no need to pursue the case for such scrutiny on an ad hoc basis.

The Law Commission published its report in October last year. The Government are committed to providing a detailed response to all commission reports as soon as is practical and, as the former DCA website states:

Nine months on, we are still waiting. At Third Reading, the Minister said:

The Minister’s reply was the same as that given to justify the delay in responding to the report of the Merits of Statutory Instruments Committee on the management of secondary legislation. That report was published in March last year and the Government’s response was debated in this House at the end of November. The justification for the delay—consultation across government—meant that it was proving difficult to gain agreement from departments because, I suspect, officials realised that the recommendations, if implemented, smacked too much of hard work and there was a lack of leadership from the top.

The result was a response that came from the bottom up, rather than from the top down. The noble Lord, Lord McKenzie, would be well advised to read in that debate the concluding comments of his noble friend Lord Filkin, chairman of the Merits Committee. I very much hope that we will not see a repetition with a late and meagre response on this occasion. The delay is far from encouraging. There is movement within Parliament, primarily through the Liaison Committee in the other place, but not much, apparently, within government.

The noble Lord, Lord McKenzie, said at Third Reading that accepting the need for post-legislative scrutiny of this Bill might pre-empt some of the Law Commission’s recommendations. That does not

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follow. The Motion is not prescriptive in terms of form, which I regard as a strength not, as the Minister does, a sign of weakness. There are precedents for providing for post-legislative review in specific cases, as shown in appendices to the Law Commission report. In any event, as my noble friend pointed out, the case is now conceded by the Minister’s own amendment.

The principle embodied in my noble friend’s Motion is important. The Government, as the Minister indicated, now accept the principle. During the Committee stage of the Legislative and Regulatory Reform Bill, the noble Lord, Lord Bassam, declared:

However, the Government have yet to deliver a mechanism for such review. The Minister’s amendment accepts now the case for review in respect of the Bill, but the delay until 2017 is essentially a long-grass provision. The chances of it being undertaken earlier are, I suspect, slim.

The response in the other place to the amendment passed by this House can be challenged on two grounds. First, as my noble friend said, the amendment was not debated. Secondly, the reason given for the rejection is at odds with the Minister’s amendment. The Commons reason is that post-legislative scrutiny is unnecessary. The Minister’s amendment provides for post-legislative scrutiny—albeit at a point too far in the future. The Government thus concede that the reason given by the Commons is flawed. The case for post-legislative scrutiny is compelling and I trust that by pursuing this Motion we will spur the Government not only to accept the case for it on this Bill but to respond positively to the Law Commission’s report. I support my noble friend’s Motion.

Lord Oakeshott of Seagrove Bay: My Lords, I am delighted to support my sea-view neighbour, the noble Lord, Lord Fowler. I was invigorated by a bracing dip in Seagrove Bay this morning before I came here and I feel particularly vigorous on his behalf.

I have received a letter from the honourable Mr Justice Etherton, the chairman of the Law Commission, following my speech in support of the amendment of the noble Lord, Lord Fowler, at Third Reading. The letter states that,

In government, I was a special adviser to the Home Secretary, many years ago. I know the code. I know when nothing is happening. The noble Lord, Lord Norton, has already told us the timescale.

I should say to the chairman of the Law Commission and the Government that achieving consensus is not simply, or even mainly, a matter of interdepartmental negotiation within government, as the letter seems to

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imply. It is high time that the Government gave their official and considered response to the Law Commission’s report on post-legislative scrutiny, so that Parliament, opposition parties and informed and interested opinion outside can debate, consider and build on it a genuine and lasting consensus. You do not do that behind closed doors with the long grass growing.

The noble Lord, Lord McKenzie, also kindly sent me a letter on similar lines to that of the Law Commission. I wonder whether they are written by the same person. He said that,

That will not have been a very long meeting.

When will the Government give their response? Can the noble Lord assure us that it will not take four more years? If he can, there is no earthly reason why he should not accept the amendment of the noble Lord, Lord Fowler, today because, if this Government are still in office, they will be able to put this Bill, when enacted, through whatever their preferred form of post-legislative scrutiny might be. If he cannot give us that assurance, he should simply curl up in shame.

4.45 pm

Lord Skelmersdale: My Lords, amusing as that speech was, perhaps it is now time to return from the general to the particular with the amendment of my noble friend Lord Fowler. I am glad that he intends to insist on that amendment. The amendment in lieu offered by the Government is not in any way adequate to achieve the sort of scrutiny that was set out, and it would reduce the concept to what I can only describe as a mere fig leaf.

The whole intention of post-legislative scrutiny is to catch problems before or shortly after they arise. By ensuring higher-level scrutiny of the provisions in the Bill as they are rolled out, the Government’s assurances and commitments to Parliament can be checked against the guidance that is given. That is doubly important, as this Government have drastically reduced the amount of detail in Bills and are in the habit of assuring your Lordships that a promise on the Floor of the House is the same as putting it in the Bill—not that the Minister has done that today. With this amendment, as has been said, such promises would carry more weight and do more to hold Ministers to account.

Much in the Bill would benefit from independent post-legislative scrutiny. Not only would it confirm the Government’s assurances that their new plans are enough to make the amendment of the noble Baroness, Lady Hollis, on women’s pensions unnecessary but it would also provide valuable scrutiny of the initial stages of the Personal Accounts Delivery Authority and, of course, it would allow the Government’s promise that the FAS is poised to start handing out money to be validated.



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I therefore hope that the Minister will appreciate the feeling in this House that it is time that the Government came forward with some serious proposals for post-legislative scrutiny, rather than just talking around the subject. This Bill is an excellent place to start and I hope that noble Lords will continue to support my noble friend today.

Lord McKenzie of Luton: My Lords, I suspect that it will not be fruitful to prolong this discussion endlessly but I want to take the opportunity to make a few points. I emphasise that the issue of post-legislative scrutiny does not divide us. We agree that it is appropriate and confirm that we would want it for legislation—in particular, for this Bill.

The noble Lord, Lord Fowler, said that some say that the timescale should be three years but that he has moved to four. It depends what time you switch the clock on for those timeframes. There is a difference between a date from Royal Assent and a date from when the provisions in the legislation take effect. When one thinks about it, 2017 is simply one year on from when some of the key provisions in the Bill will kick in.

The amendment in lieu concerns an obligation on the Secretary of State. Nothing prevents Select Committees from doing their work in the interim and, quite properly, that should not be under the direction of the Secretary of State. The noble Lord himself said that there was a lot to scrutinise and look at in relation to the delivery authority. That is absolutely right, but a second Bill will be introduced in the next Session and there will be ample opportunity to look at that in considerable detail as the legislation is put in place.

Both the noble Lords, Lord Norton of Louth and Lord Oakeshott, pressed me on the issue of the Law Commission report. I do not think that I can go further than what has been put in writing. I thought that it was rather a good letter.

The Government are looking at this seriously. I know that it is always possible to chide the Government and say, “Why didn’t you do it last month or the month before?” but these issues are not altogether straightforward. There is an intent to move them along as quickly as we can, but I cannot give a commitment on timing. It is a pity that we will divide on this, because in the scheme of things the difference is narrow. The timeframe may be a few years from the date when some of the key provisions in the Bill kick in.

I emphasise that there is nothing to prevent a Select Committee, Joint Committee or whatever from discussing post-legislative scrutiny. That is a matter for Parliament, not the Secretary of State, which will have its will in accordance with whatever is constituted. Nothing in the amendment of the noble Lord, Lord Fowler, or my amendment in lieu changes Parliament’s ability to do that. I do not see the substantive difference that the debate has suggested. I shall leave it to the noble Lord to test the opinion of the House.



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Lord Fowler: My Lords, I thank the Minister for his reply, although at some stages he made my case even stronger. The fact that a second Bill is coming makes the case for post-legislative scrutiny stronger rather than weaker. I thank the noble Lords, Lord Norton, Lord Oakeshott and Lord Skelmersdale. The noble Lord, Lord Norton, is absolutely correct. At one stage—this is even in the paper that we have in front of us—the Government were saying that the amendment was unnecessary. That is what the Commons said. Now, we are hearing, “Curiously, secretly and privately we agree with the principle of post-legislative scrutiny”.

Noble Lords: Oh!

Lord Fowler: My Lords, I heard the Minister’s reply and leave it for the Government to sort that out. The idea of having post-legislative scrutiny of this Bill by the end of 2017 is unacceptable. The noble Lord, Lord Oakeshott, is right that we have the opportunity of taking a decision now after years of prevarication. This is not about a few months; post-legislative scrutiny was the subject of my maiden speech when I came into the House in 2001.

What was fascinating about the Minister’s reply is the point that he did not mention from beginning to end. When we passed the amendment and put it to the Commons, it was not debated in any way, shape or form. The Minister was not questioned; no one could give their views or say anything about it. I cannot believe that anyone in this House or in the House of Commons could regard that as an acceptable or desirable way of doing business. The amendment would allow the House of Commons to consider the issue for the first time. The Minister said that the Commons has now decided; it may have done so, but not on the basis of any argument. We are saying to the Commons, “For the first time, you have the opportunity to debate and question this”. On the constitutional side, the Government’s position is entirely indefensible. The only sensible and fair way forward is to test the opinion of the House.

4.54 pm

On Question, Whether the said Motion (No. E1) shall be agreed to?

Their Lordships divided: Contents, 186; Not-Contents, 143.


Division No. 1


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B.
Astor of Hever, L.
Avebury, L.
Baker of Dorking, L.
Barker, B.
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