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20 July 2009 : Column 1444

Clause 13 : Expiry of provisions of the Act

Amendment 16

Moved by Lord Tyler

16: Clause 13, page 9, line 6, leave out subsections (3) to (5)

Lord Tyler: My Lords, last week, during the second day in Committee, we had a brief debate on the relative merits of two alternative arrangements for the review of the Bill after two years. The common ground between our amendment then, proposing a sunset clause, and that from the noble Baroness the Leader of the House, proposing a renewal clause, was that since the Bill had been given a fast-track procedure it should be looked at again within this two-year period. This reflected a generally expressed view in the other place that such a process was desirable. There was very strong support from the Conservative Front Bench, and indeed that was reflected again last week when the noble Lord, Lord Strathclyde, supported our amendment for a sunset clause. Indeed, in the debate against a sunset clause in the other place there were only two strong arguments: the first was that one year is too short, but we have met that; and the other was that it was not necessary for the whole Bill to be subject to a sunset clause, it was only those parts of the Bill from Clause 5 onwards that might require that process. There was also strong agreement in your Lordships' House last week that some form of review was required.

We want in this amendment to try to achieve some consensus about the best format for that review. In both Houses there has been a widespread recognition that the speed with which we have dealt with this important Bill makes it a natural candidate for some form of sunset review. I heard earlier some exchanges between the noble and learned Baroness the Attorney-General and others about whether the Bill is now perfectly formed. I think that may still be a matter of some concern. However, what is certainly true is that in two years' time we will be much better able to make sure whether that is indeed the case.

The consensus we are seeking to achieve is that while everyone now accepts that some form of review is necessary within the two-year period, we are saying-and the Government agree with this-that it should take place after two years from the date of Section 6 coming into force. Again, we have sought to compromise on that.

On the other hand, we part company on the mechanism that the Government have suggested by which Parliament should review the working of this extremely significant legislation. The Government wish only to have the rather cursory procedure of secondary legislation, with an affirmative resolution and all-or-nothing debate on a statutory instrument. As we pointed out last week-this was reflected very extensively in the other place as well as here-that procedure has serious defects. First, it can easily lead to a confrontation rather than a careful consideration of different parts of the process. Secondly, as so much of the eventual architecture-again I pick up the word used by the noble Lord, Lord Hunt of Kings Heath-for this new regime will be developed at

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a secondary level and is not incorporated in the Bill, surely it will require more than the usual oversight of statutory instruments.

We had another illustration of that in the debates earlier today. The noble Lord, Lord Campbell-Savours, put a point to the noble and learned Baroness the Attorney-General about the apparent confusion between the two commissioners. In reply, she said that there were issues that would have to be examined later on. The debate that we have just had, on the amendment from the noble Lord, Lord Jenkin of Roding, also emphasised that there are some unresolved issues here. It may not be necessary to resolve them in a particular way, but clearly they are unresolved. Therefore, that is an additional reason why it will be necessary to look very carefully at what has happened since the Bill's passage, when it comes back in two years' time. Moreover, if Members of both Houses are given only the stark choice between accepting or rejecting what I assume will be the parliamentary standards statutory instrument in 2011, they may well feel inhibited, not prepared, to seek detailed improvements to ensure that the new system is operating fairly and effectively. Finally, with no obvious improved system put before them to replace that Bill, how can they feel comfortable voting against that order? Your Lordships' House is always reluctant to vote against a statutory instrument, for very good reasons. The other place has a similar reluctance. It would be rather unfortunate if we forced it down that path.

The noble Baroness the Leader of the House suggested last week that the Government of the day might risk leaving a complete void by not bringing forward a sensible set of proposals for the renewal of this legislation. Frankly, I feel that that is entirely fanciful. I cannot understand that any responsible Government would do that. Surely the onus will be on that Government, in two years' time, to make certain that all the lessons are being learnt, that Parliament is comfortable with any improvements that may be necessary-perhaps along the lines that have already been referred to this afternoon-so that the legislation can either be substantially reinforced or, more simply, renewed if that is all that is necessary. It could be done in a short Bill with full parliamentary scrutiny over the course of a few weeks. There need be no major logjam in the legislative programme. I beg to move.

Lord Mackay of Clashfern: My Lords, I certainly agree with the view that some form of review is required after two years, given the speed with which this important Bill has gone through. However, the procedure that the noble Baroness the Leader of the House proposed in her amendment in Committee, which is now incorporated into the Bill, requires affirmative resolution. That requires an affirmative vote in both Houses of Parliament. I should have thought that, if there was any serious dissatisfaction with how the system was working, it would be extremely difficult, if not impossible, to secure a majority for its continuation in both Houses. I therefore regard what the noble Baroness the Leader of the House has done as a satisfactory way of having this review.

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Lord Strathclyde: My Lords, Clause 13 deals with a most important aspect of the expiry of the provisions of the Act, as it will be, and, in particular, a sunset clause. If we had been discussing the Bill as it was, I would gladly have continued to support the Liberal Democrats. However, the Bill has been substantially amended in its passage through Parliament. If there were no sunset clause attached to the Bill at all, I would still have supported the Liberal Democrats because I marginally prefer the sudden death of a sunset clause than this, which I think is rather euphemistically referred to in government circles as an "intelligent sunset".

It strikes me that under the provisions of this clause the Government, in the next Parliament, will have three choices. The first is to continue what will be the Act by using the provisions under this clause. The second is to do nothing; the more difficult clauses will then fall and cease to have force. The third is to bring forward new primary legislation. I suspect that whoever is in government will probably come round to the fact that we will need new primary legislation. By then, Christopher Kelly will have reported; he has already made some very aggressive remarks on the Bill and the IPSA, so it may well be that none of this comes into effect in any case. The Bill was born in haste, has certainly been legislated in haste and, even today-although I very much welcome it-has been amended in great haste.

Finally, I do not worry too much about the noble Lord, Lord Tyler, but I worry a little bit. My eye was drawn to an article in the Daily Telegraph at the end of last week that commented on the deliberations in your Lordships' House on the Bill. Comments were made by the leader of the Liberal Democrats, no less, who was fulminating in a rage at what he called the "two-party stitch-up"-that is the Conservative Party and the Labour Party-in defenestrating the Bill. However, the passage that he was most concerned about-the removal of the second defence under old Clause 8-was, of course, down to an amendment that had been moved by the noble Lords, Lord Tyler and Lord Shutt. I very much hope that they have full cover this evening from the leader of the Liberal Democrats in another place.

6.45 pm

Lord Goodhart: My Lords, I intervene only briefly. I draw attention to the reluctance that amounts virtually to a convention of either House to exercise the power to reject statutory instruments, even if they require the affirmative resolution procedure, except in wholly unusual and disastrous circumstances. It is not good enough to say, as the noble and learned Lord, Lord Mackay of Clashfern, did, "Oh, well, all will be all right because, if there is trouble, all we need to do is reject the statutory instrument". I would have far more confidence in there being a review of the provisions of the Bill in two years' time if there was a sunset clause for this Bill of the kind proposed by my noble friends.

Baroness Hamwee: My Lords, because we are going back to an issue that we debated at the previous stage, I repeat my concern to see new primary legislation,

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because of the greater opportunities that that would give for amendment and reflection. Primary legislation need not take long-this Bill is in itself an example of that. If in two years' time there is general agreement that the Bill has worked well and needs no amendment, or if there is agreement as to what that amendment is-and some of your Lordships have anticipated that that might be the case-it would be dealt with by statutory instrument. In either case, the legislation can go through quickly, but there will be opportunities for a little bit of to and fro, dealing with and tweaking perhaps relatively minor matters, and fully reflecting the wishes of both Houses rather than the attitude of "OK, we'll let it go", which so often happens with a statutory instrument. There are good reasons for our arrangements for dealing with primary legislation at its different stages, and these arrangements deserve to be applied in two years' time.

Baroness Royall of Blaisdon: My Lords, I start by staying that I am seeking consensus, not defenestration. The argument of the noble Lord, Lord Strathclyde, is absolutely correct. If we had been discussing the Bill as it left the other place, perhaps noble Lords would have more of an argument in favour of the sort of sunset clause that is favoured by the Liberal Democrats. However, the Bill is now very different and the majority of Members of this House have more confidence in it as it is in leaving this place.

We are setting up in this Bill a new institution. It is important that it should be independent and transparent in its working. The Bill will provide for that. It is also important that the new institution should be authoritative. The Bill provides for a distinguished membership of IPSA and that is as it should be. This will be an important body doing an important task. As such, it is important that we can offer the members of IPSA and the commissioner some stability; otherwise, we will not get the quality of appointments that we need. The Bill provides in Schedules 1 and 2 for appointments for five years, but this clause effectively provides for appointments for two years. I remain deeply concerned, and I am sure that many of your Lordships are deeply concerned, about what the amendment would do to the quality of those appointments.

The Government have accepted that there is a need for a mechanism to review the working of this-I hope-soon-to-be Act. I am grateful for the words of support from the noble and learned Lord, Lord Mackay. This mechanism is important on two grounds. The first is the expedited passage of the legislation, although I believe that this expedited passage has not prevented good debate and detailed scrutiny of the Bill. Secondly, we are moving into uncharted waters and it is right that we should be able to take stock of how things are going. I promised at Second Reading that we would undertake detailed post-legislative scrutiny two years after Royal Assent-well within the five-year window that the Government have agreed to generally. That is what we will do. Having listened to further concerns, I brought forward in Committee the clause that is now in the Bill. Even that clause could be said to cast some uncertainty over the future of the commissioner and some of the functions of IPSA, but there is a crucial difference between the clause in the Bill and the effect

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of the noble Lords' amendment. The effect of the noble Lords' amendment would be that, regardless of how distinguished the membership of IPSA was, regardless of how well IPSA was doing its job, regardless of the level of public support that it achieved and regardless of the improvement in MPs' standing that had arisen from its work, at the end of two years' work the body would disappear.

Noble Lords said in Committee on Thursday that, if IPSA and the commissioner were generally regarded as a success, it would be a straightforward matter to re-enact the legislation. That is precisely what the noble Baroness has said today. However, I think that it is a curious comment. We do not, on the whole, like passing legislation quickly. Your Lordships' Constitution Committee has already published its recommendations for what should happen to legislation that is passed under expedited procedures. That is one reason why I am against a sunset clause, as advocated by the noble Lords on the Liberal Democrat Benches. The noble Lord, Lord Tyler, suggested that the Government could plan to re-enact the legislation well in advance of when it was needed, but that would of course cut into the time that IPSA would need to establish and prove itself. For all those reasons, the Government have proposed a review clause for these parts of the Bill.

I refute personally the suggestion that a debate on a resolution is perfunctory. I hear the fears expressed by the noble Lord, Lord Goodlad-

Noble Lords: Goodhart!

Baroness Royall of Blaisdon: My Lords, I beg your pardon. I meant the noble Lord, Lord Goodhart.

Lord Goodhart: My Lords, the noble Lord, Lord Goodlad, and I find that we get each other's letters quite frequently.

Baroness Royall of Blaisdon: My Lords, I am glad that I am not in charge of the post-it would be even worse.

It will be up to Parliament to decide to wind these bodies up. It is up to Parliament to reject the statutory instrument that would continue the provisions. I accept that this is not something that is done lightly in this House, but it is an option. Indeed, it is an option for the Government not to bring forward the continuation Motion, but they would do that on the merits of IPSA and not on the basis of how much parliamentary time might be taken up in trying to renew the legislation. On the other hand, if IPSA and the commissioner are working well and have established themselves authoritatively, a simple vote in the House will ensure that they continue. This will give the bodies far more incentive to make sure that they deserve to be continued, since it will be less of a lottery whether they get that chance. I urge the noble Lords, Lord Tyler and Lord Shutt of Greetland, to withdraw their amendment.

Lord Tyler: My Lords, the noble Baroness the Leader of the House has referred to the Constitution Committee. We have all taken its report to the House

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on these issues very seriously. I must remind her again that it was that committee, in direct response to concerns about the Bill, that asked whether the Bill included a sunset clause as well as any appropriate renewal procedure and, if not, why the Government judged that the inclusion of those things was inappropriate. The committee is on my side in this argument.

I am surprised that the noble and learned Lord, Lord Mackay, no longer supports a sunset clause. I think that he has demonstrated-as have many other Members of the House-that when we consider a Bill in full in this House, we like to give it the sort of careful attention that it deserves. That is simply not the case with a statutory instrument. As the noble and learned Lord and many other Members of your Lordships' House have demonstrated throughout the progress of the Bill, it is when this House is doing its job best that we are so necessary to the process of parliamentary scrutiny. That is why I think that, having accepted the need for scrutiny, as the Government have, many Members on all sides of the House will accept that our suggestion is more appropriate.

I am grateful to the noble Lord, Lord Strathclyde, and not only for his support last week. I can forgive him for reading the Daily Telegraph, although I am not sure why anybody still does. He has pointed out again this evening that there may well be a necessity for new primary legislation. If there is such a necessity, the trigger for it must, of course, be a sunset clause. I hope that the noble Lord and his colleagues on the Conservative Benches will again support us on that. He has emphasised the point that, throughout the process in your Lordships' House, we have had to look very carefully at a lot of the detail and much of it is still not clear, as was demonstrated by the noble and learned Baroness the Attorney-General.

There is no direct impact on IPSA from our sunset clause, any more than there is from the Government's Clause 13. There is some impact on the commissioner, but IPSA can do its job, knowing that it will have a continuing role. The noble Baroness the Leader of the House referred to being in uncharted waters. Yes, we are, and it would be wholly wrong simply to leave hanging in the air whether there will be a full-scale review of the Bill. If everything in the whole scheme introduced by this legislation is moving very effectively, is well accepted, has credibility and has the confidence of Parliament and the public, the Government of the day can of course introduce a one-clause Bill to remove the sunrise-or, rather, the sunset-clause. They will not need to do any more. Indeed, in a sense this will create a sunrise clause. If the noble Baroness the Leader of the House is so confident that everything is perfect now, what does she have to fear from this amendment? I wish to test the opinion of the House.

6.57 pm

Division on Amendment 16

Contents 60; Not-Contents 139. [The name of a noble Lord who voted in both Lobbies has been removed from the voting lists.]

Amendment 16 disagreed.

20 July 2009 : Column 1450

Division No. 1


Addington, L.
Alton of Liverpool, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Burnett, L.
Chidgey, L.
Clement-Jones, L.
Cotter, L.
Dykes, L.
Falkland, V.
Falkner of Margravine, B.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Hamwee, B.
Harris of Richmond, B.
Hylton, L.
Kirkwood of Kirkhope, L.
Lee of Trafford, L. [Teller]
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Mackie of Benshie, L.
Maclennan of Rogart, L.
Maddock, B.
Mar and Kellie, E.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Neuberger, B.
Newby, L.
Nicholson of Winterbourne, B.
Oakeshott of Seagrove Bay, L.
Pearson of Rannoch, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Scott of Needham Market, B.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Taverne, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tope, L.
Tordoff, L.
Tyler, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Watson of Richmond, L.
Williams of Crosby, B.


Adams of Craigielea, B.
Ahmed, L.
Amos, B.
Andrews, B.
Archer of Sandwell, L.
Armstrong of Ilminster, L.
Bach, L.
Bassam of Brighton, L. [Teller]
Berkeley, L.
Bernstein of Craigweil, L.
Best, L.
Bew, L.
Billingham, B.
Bilston, L.
Blackstone, B.
Borrie, L.
Bradley, L.
Brennan, L.
Brett, L.
Bridges, L.
Broers, L.
Brooke of Alverthorpe, L.
Brookman, L.
Browne of Belmont, L.
Butler-Sloss, B.
Cameron of Dillington, L.
Campbell-Savours, L.
Carter of Coles, L.
Clinton-Davis, L.
Colville of Culross, V.
Condon, L.
Craigavon, V.
Cunningham of Felling, L.
Davidson of Glen Clova, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
D'Souza, B.
Dubs, L.
Eatwell, L.
Elton, L.
Elystan-Morgan, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Ferrers, E.
Foster of Bishop Auckland, L.
Gale, B.
Garel-Jones, L.
Gilbert, L.
Golding, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Harrison, L.
Hart of Chilton, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollick, L.
Hollis of Heigham, B.
Howe of Idlicote, B.
Howells of St. Davids, B.
Howie of Troon, L.
Hughes of Woodside, L.
Hunt of Chesterton, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Jones, L.
Kilclooney, L.
King of West Bromwich, L.
Kinnock, L.
Kinnock of Holyhead, B.

20 July 2009 : Column 1451

Laird, L.
Layard, L.
Lea of Crondall, L.
Lipsey, L.
McDonagh, B.
Macdonald of Tradeston, L.
McIntosh of Hudnall, B.
Mackay of Clashfern, L.
Mackenzie of Framwellgate, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Mar, C.
Massey of Darwen, B.
Mawson, L.
Meacher, B.
Moonie, L.
Morgan of Drefelin, B.
Morris of Handsworth, L.
Morris of Yardley, B.
Myners, L.
Naseby, L.
Norton of Louth, L.
O'Neill of Clackmannan, L.
Palmer, L.
Pannick, L.
Patel, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Quin, B.
Rogan, L.
Royall of Blaisdon, B.
St. John of Bletso, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sharples, B.
Sheldon, L.
Simon, V.
Slim, V.
Soley, L.
Stern, B.
Sutherland of Houndwood, L.
Symons of Vernham Dean, B.
Thornton, B.
Tomlinson, L.
Tunnicliffe, L.
Turner of Camden, B.
Uddin, B.
Walpole, L.
Warnock, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Whitty, L.
Wilkins, B.
Williamson of Horton, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
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