HC Deb 13 May 1998 vol 312 cc398-405

Lords amendment: No. 15, in page 7, line 43, leave out ("prescribed circumstances") and insert ("relation to a prescribed decision, or a prescribed determination embodied in or necessary to a decision. ( ) Regulations under subsection (2) above shall not prescribe any decision or determination that relates to the conditions of entitlement to a relevant benefit for which a claim has been validly made or for which no claim is required.")

Mr. Keith Bradley

I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker (Mr. Michael J. Martin)

With this, it will be convenient to discuss Lords amendments Nos. 16, 85 and 87.

Mr. Bradley

This group of amendments is our response to the Delegated Powers and Deregulation Committee report, which I am pleased to say generally concurred with our view about the necessity for the large number of regulation-making powers in the Bill. However, the Committee made a number of recommendations for changes and we have been able to meet its concerns in all cases.

Lords amendment No. 15 makes clear how the Department intends to use the regulation-making power in clause 13(2) to make certain decisions unappealable.

Mr. Waterson

I am grateful to the Minister for giving way so early in his speech. I hope that he has not lost sight of the Select Committee's recommendation in its 10th report, dated 14 January this year, that even changing to an affirmative procedure was not sufficient, at least in the context of clause 13(2).

Mr. Bradley

I regret having given way. If the hon. Gentleman listens to the rest of my explanation, he may find some comfort.

As I said, Lords amendment No. 15 makes clear how the Department intends to use the regulation-making power in clause 13(2) to make certain decisions unappealable. It explicitly prevents regulations from including any decision that relates to the conditions of entitlement to a benefit—in other words, it prevents them from removing the right of appeal from an outcome decision. It clarifies that the power will be used only to prescribe administrative decisions, which do not carry a right of appeal at present.

Lords amendment No. 16 is technical and puts beyond doubt the circumstances that will attract a right of appeal under clause 11. Clause 11 deals with supersession of earlier decisions. Appeal rights will be granted where the Secretary of State acts on an application for a decision to be superseded, even if ultimately the amount of the award is not changed. If the Secretary of State acts on an application, a new outcome decision will be generated, whether or not the amount of benefit in payment changes.

However, in some cases, an application for supersession has no prospect of success because it is clear that there has been no relevant change in the customer's circumstances; for example, where a person tells us something that is irrelevant to the decision maker, or the application for supersession cannot possibly change the original decision. In those cases, it is not practicable or sensible for the Secretary of State to act on the application. Lords amendment No. 16 ensures that the decision not to act will not be a decision under clause 11 and will not attract appeal rights.

Lords amendments Nos. 85 and 87 make specified regulation-making powers in the Bill subject to the affirmative, rather than the negative, procedure. They make a direct response to recommendations in the report of the Delegated Powers and Deregulation Committee, which argued that it would be helpful to the House to have the opportunity for further debate on some of the key sets of regulations to be made under the Bill.

First, the new clause makes subject to the affirmative procedure three groups of regulation-making powers concerned with appeal tribunals. Clause 8(3) relates to the composition of appeal tribunals and the allocation of cases among differently constituted tribunals; paragraph 11 of schedule 1 provides for the delegation of certain functions of appeal tribunals to authorised officers—clerks to the tribunals; and paragraph 3 of schedule 5 contains the power to provide regulations for striking out or reinstatement of proceedings.

Secondly, the new clause also makes the powers in clause 13(2) and paragraph 8 of schedule 2 subject to the affirmative procedure. That change works in tandem with Lords amendment No. 15 to give further clarity about the Government's intentions towards the maintenance of existing rights of appeal.

Thirdly, the new clause permits regulations, also subject to affirmative procedure, to be made under clause 70. They will align rates of child benefit for lone parents and couples with children. We studied the Delegated Powers and Deregulation Committee's report carefully and found it extremely helpful. The Government are happy to accept that there are issues on which the detail in regulations will be of interest to the House, over and above our debate on principles during proceedings on the Bill. I commend the Lords amendments to the House.

Mr. Waterson

I congratulate the Minister on the sheer effrontery of his remarks. It is certainly true that the Minister listened, but, sadly, he did not listen to members of the Standing Committee. If he had, he would have heard my remarks, and those of my hon. Friend the Member for West Chelmsford (Mr. Burns) and numerous other hon. Members. We told him time and again in words of one syllable that he was wrong, but he consistently refused to take our advice. Yes, he has listened—he deserves one or two marks out of 10 for that—but to the Select Committee, not the Standing Committee. He was brought up short by that Committee's swingeing criticisms, to which I shall return in a moment—[Interruption.] Sadly, the Minister is not listening to me at the moment, but I am resigned to that. I shall try to help him by speaking in words of one syllable.

A pragmatic approach is again being adopted. That is obviously today's theme. There will be no U-turn in the face of strong and well-worded criticism from the Select Committee, but a pragmatic approach: there is no more talk of a listening Government.

That said, there has been at least a partial vindication of the position taken by the Opposition in Committee. At the time, we might as well have gone fishing, or done anything other than tell the Minister that he was wrong. I recall the sub-plot that ran through the Committee stage—the mysterious case of the missing draft regulations. With his habitual courtesy, the Minister promised at an early stage that draft regulations would be produced for the Committee so that we could have at least a flavour of the type of regulations that he would impose under the Bill. We waited, and waited, and waited, but draft regulations came there none. Although we had saluted the Minister's desire to be helpful, the Committee became increasingly restive at having no chance to see draft regulations. Perhaps they were lost in the post; I do not know.

The effect of the amendments is clear. They reduce the scope of the regulations that the Minister defended so stoutly in Committee by giving a different definition to the words "prescribed circumstances". It is worth dwelling for a moment on points made in Committee, when the official Opposition consistently opposed the extensive regulatory powers in the Bill. My hon. Friend the Member for West Chelmsford said: As we said on the first sitting, many of the changes will be made not by the Bill but through regulations, which I suspect we will not see in draft form during the proceedings of the Committee. How right he was.

We are being asked to approve a pig in a poke because we will not know the small print of those regulations or the detail of how the Government will seek to use their powers."—[Official Report, Standing Committee B, 28 October 1997; c. 13.] As I have said, the Minister, despite his best efforts, consistently failed to provide the Committee with the draft regulations.

The amendments amount to a significant U-turn on the Bill's regulatory powers. Quite properly, they fix certain limits on the regulations that can be made. In particular, the new provision after clause 75 provides that many regulations that flow from the Bill will be subject to affirmative resolution, which I called for in Committee.

In Committee, I also quoted some respected independent organisations that shared our view. Perhaps the most telling quotation, to which we returned more than once, came from the Child Poverty Action Group—not exactly regarded as a wing of the Conservative party—which referred to the skeletal nature of the Bill". I endorsed that description.

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The Law Society also gave us the benefit of its view, stating: A further point of concern is that the Bill gives the Secretary of State extensive regulation-making powers, making it extremely difficult for Parliament and those affected by the Bill's provisions"— and it is they who really matter— to assess their impact or desirability. It is hoped that Ministers will be able to provide more detailed information in order to clarify their intentions during the passage of the Bill. As we have heard, that was a pious hope.

Another briefing, from the Social Security Law Practitioners Association—judging from its title, it ought to know what it is talking about, and it represents people who act regularly for clients in social security matters—said: We believe that the current grounds upon which a decision of an adjudication officer may be reviewed work well and that such grounds should be laid out in primary legislation."—[Official Report, Standing Committee B, 28 October 1997; c. 77–78.] Again, the Minister felt unable to accept that point in Committee.

At that time, the Minister sought to defend his position partly on the ground that draft regulations would in due course be considered by the Joint Committee. He felt that that was a defence against regulations that would have too swingeing an impact on people affected by the Bill. I said that it was my privilege and pleasure during my first Parliament to serve as a member of the Joint Committee that scrutinises secondary legislation. The Minister said nothing to disabuse me of the view that he had failed to see the difference between scrutiny and control—which is an entirely different thing—as regards secondary legislation.

The plain truth is that the Joint Committee considers more than 3,000 instruments a year, covering the entire range of Departments. As is made clear in the rules prepared for the House by the Clerk, the Scrutiny Committee is concerned not with the merits of statutory instruments but with such matters as whether the authority conferred by the parent Act has been exceeded and whether the drafting is defective. That is totally different from what the Minister seemed to believe, which was that the task of the Scrutiny Committee is to consider the merits of individual statutory instruments.

As the Procedure Committee's fourth report, on delegated legislation, put it—rather well—the work of the Scrutiny Committee is painstaking and unglamorous and goes largely unregarded in the House. I heartily agree, but no matter how well its members do their job, they are not doing what the Minister thought they were there to do.

As the House knows, there are two procedures for dealing with statutory instruments—the affirmative and the negative procedure, although they have changed a little in recent years. At the moment, an affirmative instrument is automatically referred for debate to a Standing Committee unless the Government are willing to afford a debate on the Floor of the House.

The fourth report says that the Government may freely disregard negative instruments, although Ministers are in a position to concede the affirmative procedure in the course of debate on a Bill in Committee. That is precisely the point that we kept making to the Minister during our Committee debates. It would have been perfectly possible to rethink the issue on the hoof and to accept that some—perhaps all—of these matters should be subjected to the affirmative procedure. As the second edition of "Statutory Instrument Practice" makes clear: Negative procedure provides a less stringent form of parliamentary control than affirmative". That is precisely the point that we debated time and again in Committee.

The Bill sailed through the Committee unencumbered by any draft regulations and went to another place. There it met an immoveable object, in the form of the Lords Select Committee on Delegated Powers and Deregulation. Its conclusions on the Bill deserve repetition. The 10th report states: There is an exceptionally large number of delegated powers in this bill, and it is difficult to strike the right balance in relation to some of these powers. The Committee touched on the need for flexibility, which the Minister did mention in Committee, but went on to say: Some of the delegated powers in the bill break important new ground". The Committee expresses profound reservations about the contents of the Bill without the Lords amendments. Let us not forget that the Committee exists to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny"— precisely the point that we made over and over again in Committee.

The Lords Select Committee took written evidence, not least from the CPAG and the National Association of Citizens Advice Bureaux. Given that those independent organisations agreed with the Opposition's concerns in Committee, the Minister should have given us a more serious hearing at the time.

The Committee went on to say of clause 13: The Committee does not consider that affirmative procedure is the appropriate answer to its concerns about clause 13(2) … It is arguable that primary legislation should establish the essential rights of appeal in any area of the law … The Committee sees no objection to a power to confer additional rights of appeal … But as the bill stands there are no rights of appeal which could not be removed by regulations under clause 13(2) or paragraph 8 of Schedule 2. The Committee wishes to draw attention to this point, and invites the House to consider whether it is right that Ministers should have so wide a power to deny appeals from their own decisions. Given that the Committee uses guarded and measured language, these are damning and devastating criticisms of the Department's approach to the Bill and its regulation-making powers. That point was so clear and obvious in Committee that I remain amazed by the fact that the Minister felt unable to recognise it. He has had a firm slap on the wrist from the Select Committee, but, far from coming here in a mood of contrition and apology for getting it so wrong, he has had the effrontery to try to take credit for what amounts to another massive climbdown—or "pragmatic approach". What a pity that that approach was not in evidence in Committee.

Mr. Swinney

It appears that the Government have put their case this evening, only to be confronted by a series of hurdles designed to make it difficult for them to change their position.

I want to speak to Lords amendment No. 87, a new clause. I welcome the fact that the affirmative procedure is to be used for the regulations made under the new clause. Bearing in mind the fears raised by the proposal to reduce benefit for lone parents, the public would be staggered if they believed that Parliament was not according to issues of such sensitivity the sort of scrutiny afforded by the affirmative procedure.

It is important to assure our constituents that regulations of this nature will be subjected to the closest possible consideration by the House. The public need reassuring that there will be such scrutiny of a variety of aspects of the legislation. They need to know that enough parliamentary time will be devoted to issues raised by the Government in future, whether they relate to changing the constitution of appeals tribunals or to powers to reduce benefits to lone parents. These are fundamental issues; if Parliament cannot devote the right amount of scrutiny to them, it will be failing in its duty to the public. That is why I welcome the Government's response to the Lords amendments.

Miss Kirkbride

I had the privilege of serving on the Standing Committee some time ago. Before being elected, I sat up in the Press Gallery as a journalist, and I can only describe what the Minister has said this evening as a U-turn. We should like more of them in other areas of the Bill; at any rate, the Government are eating a good deal of humble pie tonight, given what they said during that interminable Standing Committee—[Laughter.] It was my first experience of a Standing Committee, and the debates sometimes seemed rather long to me.

We are grateful that the Minister has listened to the concerns that we expressed in Committee. When the Bill was in Committee last autumn, it seemed symptomatic of the then new Government that they were arrogant enough to propose that these measures should be put through without proper scrutiny. We were often left in the dark, not knowing whether Ministers meant to employ the affirmative or the negative procedure—or indeed what they were proposing. It is important that the Government have now accepted that when we are spending a great amount of public money, the public should at least know where they stand with regard to appeal procedures and to other things that the Government were trying to slip in. I have many constituents who are concerned about their rights and the appeal procedures on the benefits that are available to them.

The regulatory framework must be made much clearer, so I am grateful for the U-turn that Ministers have made tonight. We should like more as we proceed, but I thank the Minister for his interest so far.

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Mr. Keith Bradley

I find it extraordinary that the Opposition have the effrontery even to raise the issue of secondary legislation. Year after year when they were in government, they introduced skeletal Bills, such as the Jobseekers Bill, on which I am sure the hon. Member for Bromsgrove (Miss Kirkbride) reported in her former life, in which, as she will have noted clearly, most of the provisions were in secondary legislation. The file of papers on secondary legislation was 10 times thicker than the Bill itself, so we will take no lessons from the Opposition.

Mr. Waterson

Will the Minister give way?

Mr. Bradley

No, I am making my point. We understand that there is a reshuffle in the air on the Opposition Benches.

We were not brought up short by the Delegated Powers and Deregulation Committee because it accepted our principle that most of the detail should be in regulations. Out of more than 100 regulation-making powers, it commented only on five. It vindicated our assertion in Committee that the structure in the Bill was right and the use of powers was appropriate.

Yet again, the hon. Member for Eastbourne (Mr. Waterson) is confusing that Select Committee with the Joint Committee on Statutory Instruments, which he continually refers to. They are different. The Select Committee looks at whether we have appropriate powers, whereas the Joint Committee looks at specific regulations and decides whether those powers are being exercised appropriately. It has not looked at regulations yet in this respect. The comments are appropriate in relation to the fact that the Select Committee examines the generality of the use of powers.

Mr. Waterson

I thank the Minister for giving way because we may be able to save a bit of time by my intervening at this stage. I am well aware of the difference that he mentions because, of course, I served for some four or five long years on the Joint Committee, but my recollection of the Standing Committee is that, at one point, he was trying to defend the Bill as it stood by saying that the regulations would be considered in due course by the Joint Committee. I do not think that he fully appreciated or had a complete grasp—I may be doing him an injustice, in which case he will put me right—of the narrow compass of the Joint Committee's responsibilities.

Mr. Bradley

We are in danger of compounding the confusion and the difference of view that we had in Committee—and still do—even further. The Committee that I was referring to was the Select Committee, which scrutinises the generality of the powers. The hon. Gentleman refers to the Joint Committee on Statutory Instruments, which considers these matters only when it has such instruments before it and examines whether those powers are being used appropriately. There was confusion in Committee on that point, and there continues to be.

What is important is that when regulations are laid—we have to recognise that this is a long and technical Bill—they are correct. If they are not, we would only be criticised again for having to amend or replace them and, again, the Opposition would say that we had not done our job properly. As we have made clear, we shall also use the ad hoc group on implementation, which will help us to implement the Bill. Representatives from the Child Poverty Action Group, the National Association of Citizens Advice Bureaux and Age Concern, for example, are serving on that group, so their views will be taken into account as the Bill is implemented.

I am sure that we have noted the general welcome from hon. Members on both sides of the House for my announcement on statutory instruments. It would be wrong to delay the House any further by not approving them.

Lords amendment agreed to.

Lords amendment No. 16 agreed to.

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