Second Report
CHILDCARE BILL [HL]
1. This Bill, according to its long title, will
"make provision about free childcare for young children of
working parents and about the publication of information about
childcare and related matters by local authorities in England".
Although short, it is almost entirely enabling, in that the Bill
itself contains very little substantive provision about either
of the topics for which it seeks to provide.
2. During the debate on Second Reading on 16
June, the Bill was referred to more than once as a "skeleton",
and that seems to us to be an accurate description. The significant
powers conferred by the Bill are explained in a memorandum prepared
by the Department for Education.[1]
Despite what is said in paragraph 9 of our guidance to departments
(that memoranda should be received no later than the day of introduction
in the Lords), it was - regrettably - not submitted in final form
until two weeks after the Bill had been introduced.[2]
3. We wish to draw to the attention of the House
the delegations of legislative power by the Bill that have caused
us considerable concern, namely those conferred by clause 1 (in
connection with the provision of free childcare for working parents).
Clause 1 - Free childcare for working parents
EXTENT AND NATURE OF THE DELEGATIONS IN CLAUSE 1
4. Subsection (1) imposes a duty on the Secretary
of State to secure that childcare is available free of charge
for qualifying children of working parents for, or for a period
equivalent to, 30 hours in each of 38 weeks in any year. Beyond
two interpretation provisions in subsections (3) and (12), no
other provision appears on the face of the Bill defining what
is to be made available in discharge of that duty. Everything
else is left to regulations.[3]
Even the definition of the key expression "qualifying child
of working parents" is dependent on regulations (see subsection
(2)) .
5. So, in this context, the regulation-making
power conferred by subsection (4) is remarkably wide. It is supplemented
by subsection (5), which sets out in paragraphs (a) to (k) the
kinds of provision which the regulations might include. However,
these categories are examples only; they are not exhaustive. Many
of them in our view go to the very heart of what is to be delivered,
and we have a number of observations to make:
· Paragraphs
(a) to (c) are concerned
with the description of childcare to be made available, the terms
on which it is to be available and when and for how long.
We do not accept the memorandum's dismissal (in paragraph
12) of provision under these paragraphs as "procedural",
because much of it will form the substance of the new arrangements.
· Paragraphs
(d) and (e) enable provision to be made
about financial matters - not only the important aspect of rates
of payment, but also the arrangements for payment.
· Paragraph
(f) envisages that the regulations might
impose obligations or confer functions on any public body.
The memorandum (paragraph 15) explains that the regulations
might provide for this to be a local authority; but there is no
explanation why the power refers to any public body.
· Paragraph
(g) enables the establishment by regulations
of a body corporate.
The memorandum (paragraph 15) explains little about
why a new body might be thought necessary or about the nature
of its proposed functions.
· Paragraph
(h) enables the regulations to "reproduce
any provision of the Childcare Payments Act 2014 with or without
modification".
We note that the Childcare Payments Act 2014 ("the
2014 Act") is some 47 pages long and is supplemented by some
17 pages of regulations that required affirmative approval from
each House. The memorandum (paragraph 16) explains only that this
would enable regulations to make for childcare arrangements under
the Bill a scheme similar to that in the 2014 Act. But it does
not explain how the many delegations of legislative power conferred
by that Act would be reflected in the regulations, or what level
of Parliamentary control would be required in the event of sub-delegation
of legislative powers.
· Paragraphs
(i) and (j) envisage that the regulations
might include provision for the production of information and
documents by "a person"; and paragraph (k) shows
that such provision might be coercive in character.
There is nothing on the face of the Bill or in the
memorandum (paragraph 17) identifying the categories of person
from whom the information etc. might be required. This contrasts
with section 99(1) of the Childcare Act 2006 ("the 2006 Act"),
which enables information to be required only from specified classes
of person. There is also no safeguard in clause 1 against the
publication of identifying details, of the kind found in section
99(7) of the 2006 Act.
Furthermore, we do not understand the analogy drawn
in the memorandum (at paragraph 20) between the power in paragraph
(k) to create criminal offences and the power conferred by section
85A of the 2006 Act, as the latter appears to us to be concerned
with childcare premises rather than the provision of information.
6. The remarkable imbalance between the provision
that appears in the Bill itself and what is to be left to regulations,
and the scarcity of explanation in the memorandum, has led us
to question whether members will be in a position to contribute
meaningfully to debates at Committee Stage and Report Stage. Successive
speakers at Second Reading expressed considerable disquiet about
the absence of any information that might give them a working
idea of the nature and shape of the proposed scheme, and about
the effect of delegation to subordinate legislation. A number
of speakers hoped that drafts of regulations would be made available
to inform subsequent debates, but we could find no response to
this from the Minister. He did, however, explicitly acknowledge
the importance of the "detail" that is to go in the
regulations .[4]
GOVERNMENT'S APPROACH TO DELEGATION IN THE BILL
7. Unable to understand why the Bill has been
presented in a skeleton form only, we turned to the memorandum.
Paragraph 5 summarises the Government's approach to the delegation
of legislative power in the Bill. It begins with the premise
that "the legislative framework must be clearly presented
on the face of the Bill with secondary legislation used to provide
the detail", and goes on to say that the provision in the
Bill "must support effective implementation and contain sufficient
flexibility". It explains that "operational, administrative
and technical details are not normally set out in primary legislation"
as "too much detail on the face of the Bill risks obscuring
the principal duties and powers from Parliamentary scrutiny".
Finally, the Government express the wish "to consult on
matters of detail" and to "consult widely … before
finalising a delivery model".
8. In our view, the Government's stated approach
to delegation is flawed. While the Bill may contain a legislative
framework, it contains virtually nothing of substance beyond the
vague "mission statement" in clause 1(1). It is quite
inaccurate to describe the nature of the provision authorised
by clause 1(4) (particularly in view of the possible ingredients
envisaged by subsection (5)) as "operational, administrative
and technical detail".
9. We do not accept the Government's attempt
to dignify their approach to delegation by referring to a need
to consult. We of course acknowledge the need for consultation
as a precursor to the formation of policy; but this should in
our view have followed the well-established sequence of a Green
Paper setting out proposals, followed by a White Paper containing
the Government's legislative intentions, and finally the presentation
of a Bill.
10. We note that the Minister said that "the
introduction of the Bill, with a strong duty on the Secretary
of State, sends a clear message to parents and providers about
the Government's commitment".[5]
That is not, in our judgment, a proper use of legislation: the
purpose of an Act is to change the law, not to "send a message"
- a point made repeatedly in the last Parliament on the bill that
became the Social Action, Responsibility and Heroism Act 2015.
Conclusion on the appropriateness of the power
conferred by clause 1(4)
11. We have accordingly concluded that the power conferred by clause 1(4) is inappropriately wide. Without greater detail in the Bill itself, together with a much fuller explanation about the nature of the provision likely to be contained in the regulations under clause 1, the House will have insufficient information about the design of the new childcare provision for a properly informed debate. We therefore recommend that the Bill be amended to remedy this deficiency.
LEVELS OF PARLIAMENTARY SCRUTINY
12. Given our views on the scope of the delegations,
we are surprised that the negative procedure is considered appropriate
for any of the powers under clause 1.[6]
In paragraph 6 of the memorandum, the Government set out their
approach to levels of Parliamentary scrutiny: "The general
reliance on the negative resolution procedure reflects our view
… that the relevant matters are of administrative or procedural
detail". As should be clear from what we have said above,
that description is in our view misleading. We also found several
of the explanations supporting the negative procedure for specific
powers to be cursory and insubstantial. While it may be the case
that related powers in sections 7 and 7A of the 2006 Act attract
the negative procedure, in contrast to this Bill, the 2006 Act
was not a purely enabling Act. This Bill is almost entirely enabling,
and we have concluded that only an affirmative procedure is appropriate
for this extent of delegation. We considered whether there were
some powers for which it might be sufficient to require affirmative
control only on their first exercise, but we took the view that
we did not have enough information to enable us to make that judgment.
PRELIMINARY CONCLUSION ON THE LEVELS OF SCRUTINY
13. We accordingly recommend, at this stage and without prejudice to our main conclusion and recommendation in paragraph 11 above, that the draft affirmative procedure should apply on the exercise of all powers conferred by clause 1. Should amendments be tabled by the Government to give effect to our main recommendation above, we would then look again (in the light of additional information in a supplementary memorandum) at the level of scrutiny that should apply for the remaining powers.
REGULATION OF POLITICAL
OPINION POLLING BILL [HL]
14. This Private Member's Bill is to provide
for the regulation of "political opinion polling" (defined
in clause 1(8)) by a new regulator, the Political Opinion Polling
Regulation Authority. The Bill is largely enabling, as almost
all of the detailed provision is to be in regulations made by
the Secretary of State or in rules published by the Authority.
Delegations of legislative power in the Bill fall into two broad
categories.
Clauses 1 and 2 - Regulations about the Authority,
and penalties
15. Clause 1(1) obliges the Secretary of State
to establish the Authority by regulations within one year of enactment,
and subsection (3) requires those regulations to make provision
about the Authority's constitution, particularly in accordance
with paragraphs (a) to (c). They must also specify the amount
of a penalty for the purposes of clause 2. The regulations attract
a draft affirmative procedure (subsection (7)). Three matters
occurred to us:
· Because
subsection (1) in effect requires the Secretary of State to have
the regulations in force (rather than merely to lay a draft of
the first such regulations before Parliament) within one year,
that duty could be breached if draft regulations were not approved
by both Houses in sufficient time.
· The
powers conferred for setting up the Authority seem very specific
(and therefore narrow) when compared with other statutory powers
for establishing public bodies by subordinate legislation, especially
given the absence of a general power to make consequential, supplementary
or incidental provision.
· The
nature of the power conferred by clause 2 is insufficiently precise,
in that it is unclear whether the intention is that a criminal
offence may be created, or whether the penalty envisaged is a
civil penalty.
16. We draw these matters to the attention
of the House so that it may consider whether the Bill should be
amended to clarify and, if thought appropriate, amplify the powers
to make regulations under clauses 1 and 2.
Clause 1(5) - Regulations containing rules about
polling and polls
17. Under clause 1(2) it is for the Authority
to make "rules for political opinion polling" dealing,
in particular, with the matters set out in paragraphs (a) to (c);
and the rules must be published and kept under review (subsection
(4)). Any amendments must also be published (along with explanatory
notes - although we were unsure why the same requirement does
not apparently apply to the publication of the initial rules).
18. Subsection (5) requires the Secretary of
State to lay before Parliament "a statutory instrument containing
the rules or amendments to the rules", which would be subject
to a negative procedure by way of annulment. That appears to
us to be a very unusual requirement, in that subsection (5) seems
to envisage the statutory instrument purely as a vehicle for getting
the rules before Parliament; but a statutory instrument should
itself have some effect. It would be more usual if (for instance)
the rules required the approval of, or were to come into force
on a date specified by, the Secretary of State by regulations
made by statutory instrument.
19. In the light of the power being conferred
by subsection (2)(c), it is in our view certainly appropriate
that Parliament should have some form of control over the rules.
We have concluded that a draft negative procedure would be more
appropriate for the regulations containing them, so as to avoid
the possibility of the rules coming into force and then ceasing
to have effect should the instrument be annulled.
20. We draw these further matters to the attention
of the House so that it may consider whether subsection (5) should
be amended to provide that the regulations are to have some effect
and for a draft negative procedure to apply to them.
airports act 1986 (amendment)
Bill [HL]
21. There is nothing in this Bill which we wish
to draw to the attention of the House.
Cities and Local Government
Devolution Bill [HL]: Government Response
22. We considered this Bill in our 1st Report (HL Paper 8). The Government have now provided a preliminary response by way of a letter from Baroness Williams of Trafford, Parliamentary Under Secretary of State, Department for Communities and Local Government, printed at Appendix 1.
Draft Legislative Reform
(dUCHY OF LANCASTER) Order 2015
23. This draft Legislative Reform Order (LRO)
was laid on 1 June 2015 by the Cabinet Office, together with an
Explanatory Document (ED). It replaces a draft Order with the
same title, laid on 24 March, which had to be withdrawn owing
to a defect in the Order and a policy change. The ED was also
amended to deal with some points left out of the first version.
Given this history, it was with some disappointment that we found
that the printed version of the ED laid before Parliament with
the current LRO omitted a table on cash flow, as a result of which
it was necessary for the Cabinet Office to submit supplementary
evidence (see Appendix 2).[7]
The Committee has commented in the past about the quality
of the explanatory material accompanying an LRO.[8]
It is with regret that we note that errors continue to occur.
Background
24. The Order is proposed under section 1 of
the Legislative and Regulatory Reform Act 2006 ("the 2006
Act") which allows a Minister to make provision by order
for removing or reducing any burden resulting directly or indirectly
from legislation.
25. It would amend the Duchy of Lancaster Act
1817 so as to extend the Duchy's ability to spend money from capital
on the preparations required for developing a site or large capital
project. Currently legislation limits the Duchy's capital expenditure
to physical improvements to existing property or buying new land.
That restriction means that development costs for projects (for
example, in applying for planning permission) have to be taken
from the Duchy's income account, which imposes a constraint, since
the routine workings of the Duchy are also paid for from that
account. The instrument is also intended to make clear that preparation
costs can be paid for from the capital account even if the proposed
improvement or development does not ultimately take place.
Costs/benefits
26. A full impact assessment has not been prepared
because there will be no impact outside the Duchy of Lancaster.
27. Pages 5-6 of the ED, however, illustrate
the cash flow problem currently caused to the Duchy in having
planning costs taken out of income and not reimbursed until the
property is sold, often years later.
Tests in the 2006 Act
28. We agree with the Minister that the current
restrictions are "an obstacle to efficiency, productivity
or profitability" as defined in section 1(3) of the 2006
Act. The changes proposed by the LRO appear proportionate because
their effect is simply to put the Duchy on a more equal footing
with other land owners, with no additional commercial advantage.
We are also satisfied that, in relation to the proposed changes
identified in the ED, the Department has shown that they meet
the tests set out in the 2006 Act.
Parliamentary procedure
29. The draft Order is subject to the negative
resolution procedure. This is justified in paragraph 3.5 of the
ED on the grounds that the Order would affect only the Duchy which
has itself requested the changes proposed in the LRO.
Conclusion
30. We are satisfied that the Order meets
the tests set out in the 2006 Act and is appropriate for the Legislative Reform Order procedure. We are
also satisfied that the negative resolution procedure proposed
by the Government is appropriate.
1 Department for Education, Delegated Powers Memorandum:
[http://www.parliament.uk/documents/DPRR/2015-16/Bills/Childcare/11-Childcare-DP-Memo.pdf] Back
2
Delegated Powers and Regulatory Reform Committee, Guidance
for Departments on the role and requirements of the Committee,
July 2014, paragraph 9:
[http://www.parliament.uk/documents/DPRR/2014-15/Guidance%20for%20Departments/Guidance-for-Departments.pdf] Back
3
Under subsections (4), (8) and (9), or to regulations under the
Childcare Act 2006. Back
4
HL Deb, 16 June 2015, col. 1130 [Lords Chamber]. Back
5
Ibid. Back
6
Clause 2(4) reserves the affirmative procedure for regulations
that amend or repeal a provision in an Act. Back
7
The electronic version on Legisation.gov.uk was however complete.
Back
8
See for example, 15th Report, Session 2014-15, HL Paper 101, on
the Draft Legislative Reform (Community Governance Reviews) Order
2014 and 1st Report, Session 2015-16, HL Paper 8, on the Draft
Legislative Reform (Combined Authorities and Economic Prosperity
Boards)(England) Order 2015.
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