COMMENCEMENT (Hansard, 20 June 2003)

§ Mr. Christopher Chope (Christchurch)
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker (Sir Alan Haselhurst)
With this it will be convenient to consider amendment No. 1, in clause 1, page 2, line 10, leave out subsection (9).

§ Mr. Chope
In part, new clause 1 is a probing new clause. Paragraph 9 of the explanatory notes to the Bill states: The Bill will commence immediately on Royal Assent. That is relatively unusual for a piece of legislation. The wording is normally in line with that in new clause 1, giving the Secretary of State the discretion to commence the Act as soon as he thinks fit, but normally not within two months of Royal Assent. I hope that my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) will be able to comment on the fact that the wording in the Bill is different from the wording in the National Lottery (Amendment) Bill, which was considered by the House in the 2000–01 Session but which, sadly, had insufficient time to make progress to Royal Assent. I would like to ask my hon. Friend why he wishes to fetter the discretion of the Secretary of State on the issue of commencement, as the present wording does.
My second reason for tabling the new clause is that, when I did so on Wednesday, I feared that the Government might in tend to commence the Act before the regulatory impact assessment had been published. On Wednesday, no such assessment had been published, and I wondered whether this was going to be a re-run of the situation that we had last week, when the regulatory impact assessment for the Fireworks Bill—which received its Second Reading on the same day as this Bill, 28 February 2003—had still not been published at the closing time for the submission of amendments on Report. In the case of the Fireworks Bill, the Minister told us: I shall inform the House of the reason that the draft regulatory impact assessment was not published sooner. It had been produced, but the actual publication failed to take place due to an administrative oversight."—[Official Report, 13 June 2003; Vol. 406, c. 967.]

§ Mr. Eric Forth (Bromley and Chislehurst)
Does my hon. Friend think that this illustrates yet another undesirable trait in the attitude of the Government towards Bills and towards the House? Regulatory impact assessments are supposed to help all of us to assess the impact of a Bill. How can we be expected to 607 do that properly if they do not appear, or if they appear only at the last minute? Is this becoming a habit? If so, is it not time the House put its foot down?

§ Mr. Chope
I fear that it is becoming a habit. In legal language, I was adducing what happened last week by way of similar fact evidence. Last week, I quoted from the foreword that the Prime Minister had written in 1998 to the paper on better regulation, in which he insisted—the Minister should listen to this—that the regulatory impact assessment process should be complied with to the letter by his ministerial team. It was not complied with by the Fireworks Bill team, nor has it been complied with in this case. No doubt we will find out whether that is also because of an administrative oversight.
Last week, the Under-Secretary of State for Trade and Industry responsible for that Bill, the hon. Member for Welwyn Hatfield (Miss Johnson), who is to be congratulated on moving to another Department during the reshuffle to become Under-Secretary of State for Health, graciously apologised for Members not having more time to study the regulatory impact assessment. However, I was most surprised to find that there was no RIA for this Bill, as the Minister for Sport had said on Second Reading: As the hon. Member for Mid-Norfolk said,"— I am sure my hon. Friend will bear this out, although, having read the Official Report, I am not sure that he said any such thing— my Department has also prepared a regulatory impact assessment for the Bill that I will place in the Libraries of both Houses."—[Official Report, 28 February 2003; Vol. 400, c. 543.] On Monday, I asked the Library for a copy, only to be told that it had not yet been delivered. After prompting through a parliamentary question, the RIA was placed in the Library yesterday. There was, I am afraid to say, no apology for its being deposited late.
The Minister, who I am pleased to see in his place, has not answered the question that I tabled yesterday as openly as he might. I asked when the regulatory impact assessment was (a) prepared and (b) placed in the Library. He replied: DCMS prepared a Regulatory Impact Assessment on the National Lottery (Funding of Endowments) Private Members Bill when it was first tabled. I said at the time of the Bill's Second Reading on 28 February 2003 that copies would be placed in the Libraries of both Houses, and this has now been done."—[Official Report, 19 June 2003; Vol. 407, c. 353W.] However, the Minister did not say, "This has been done today, almost four months after it was prepared." Nor did he take the opportunity presented by the question to apologise for the RIA being placed in the Library so late. I hope that we get an apology this morning.
Another thing surprised me. When I read the RIA, I found that the Minister had signed it on 27 January.

§ Mr. Forth
Oh!

§ Mr. Chope
My right hon. Friend is right to exclaim, because we did not have the benefit of the RIA on Second Reading, which is what the Prime Minister says 608 should be the process, although we now know that it existed at that time. Almost five months later, it has reached the public domain.

§ Mr. Forth
This is getting more and more worrying, I must admit. Notwithstanding my hon. Friend's analysis, is there anything in the RIA that is sufficiently damaging for it to be concealed? In other words, is it his assessment that there is either a Government conspiracy or a Government cock-up? There are so many of both that it is difficult to tell one from the other these days.

§ Mr. Chope
I was not going to refer in detail to the RIA, but I should summarise my point: if my hon. Friend the Member for Mid-Norfolk and other Members had seen it on Second Reading and in Committee, they might have raised a lot more questions on the Bill's contents and the Government's intentions regarding the powers in it.
The RIA should have been publicly available in time for Second Reading, as required by "Better Policy Making: A Guide To Regulatory Impact Assessment", issued by the Prime Minister in 1998 under his own foreword. There is a flow chart on page 10 of that document, which has 81 pages, so perhaps the Minister may be excused if he has not read it right through.

§ Mr. Forth
He should have.

§ Mr. Chope
My right hon. Friend is, as always, rather unforgiving in these matters.
That document was reissued by the regulatory impact unit in January 2003, and it makes it clear that an RIA should be sent to Parliament with the legislation. It is no good saying that this is a private Member's Bill, and that therefore everything is different, because paragraph 1.8 explicitly says: In the case of Private Members' Bills which the Government is planning to support, or is not intending to oppose, you"— that is addressed to the Minister— should produce an RIA by the date set down for Second Reading. That brings me to the question of the new clause: why is there a need for such haste in wanting commencement on the same day as Royal Assent when there has been such manifest tardiness and laxity from the Department in dealing with this matter? That point is reinforced by the situation relating to the issue of draft guidance. On Second Reading, the Minister referred to guidance that he intends to give the lottery distributors: I can announce that, should the Bill proceed—I hope that it will"— as do I— my Department will issue guidance to distributors on this matter, and that a draft of the guidance will be made available to peers during the Lords stages of the Bill."—[Official Report, 28 February 2003; Vol. 400, c. 542.] 609 I requested that such guidance be made available in advance of this debate, but yesterday the Minister replied to a question by saying: The guidance is currently in the process of drafting, and we will want to consult distributors before finalising the text and making it available for parliamentary scrutiny."—[Official Report, 19 June 2003; Vol. 407, c. 354W.] Parliament is to play second fiddle to the distributors, which is thoroughly unsatisfactory, but it is clear from that answer that there has not yet been consultation with the distributors, because the draft has not been produced. However, the Minister said that it would be made available in time for consideration of the Bill in the other place.
As we learned in last Friday's debate, the other place has to consider whether it wishes to amend the Bill pretty quickly, because if there are any amendments they must return to this House no later than 11 July if the Bill is not to be excluded from making further progress. The House will have no opportunity to consider private Members' legislation beyond that date, so time is short, but we are told by the Minister, who is so desperate to get the Bill on the statute book that he wants commencement immediately upon Royal Assent, that he has not even got round to completing the drafting of the guidance, which will be made available for parliamentary scrutiny in the other House, but not in this one.
I asked the Minister and my hon. Friend the Member for Mid-Norfolk why the House cannot see such a draft. Surely we are entitled to that. Is the reason slackness or a cavalier approach on the part of the Minister? Most of all, and in respect of underlining the case for the new clause, what is the urgency behind the immediate commencement on Royal Assent when there has been so much tardiness over this aspect of the Bill?
That brings me to amendment No. 1, which is extremely significant since it would remove the requirement that the Bill be retrospective by leaving out clause 1(9). Why does it need to be retrospective? I looked for guidance in the explanatory notes, which say: Clause 1(9) provides for these amendments to have retrospective effect. That is all they say. They give no reason or further explanation as to why there should be retrospective effect. We as legislators should be nervous about Bills that seek to be retrospective. Retrospection offends against the basic principles of law making, and it should be used only in the most extreme and special circumstances.
What was said about this aspect of the Bill on Second Reading? My hon. Friend the Member for Mid-Norfolk, who is the promoter of the Bill, said: The Department for Culture, Media and Sport previously advised that distributors other than the Community Fund could fund endowments, and some distributing bodies have made such grants. The Bill would have retrospective effects, which are in clause 1(9). I am not sure whether that answered the question that I have asked. I was none the wiser after reading my hon. Friend's statement. Was the Department for Culture, Media and Sport wrong to advise that distributors, other than the Community Fund, could fund endowments? Have endowments been made that are, unless validated retrospectively, ultra vires?
610 On Second Reading, my hon. Friend said: At the moment, all lottery distributors are able to make grants to endowments but the Community Fund is not."—[Official Report, 28 February 2003; Vol. 400, c. 528–29.] If that is the situation, what is the problem? Why is there any need for the Bill to be retrospective? It is apparent from this Bill and its predecessor Bill that the people of Norfolk, and indeed the people of Dorset, are concerned to ensure that they can raise money to help carers, and they want to do that by means of an endowment. There has never been any suggestion that they have received an endowment that was ultra vires and that they now need to validate it retrospectively.
On Second Reading, several references were made to endowments, such as the £200 million endowment to the National Endowment for Science, Technology and the Arts. I want to ask the Minister a direct question. Was that endowment ultra vires? Is clause 1(9) designed to validate that expenditure retrospectively? Was the New Opportunities Fund's £50 million payment to a 10-year endowment as part of the fair share initiative ultra vires? Was the £16 million Millennium Commission 10-year expendable endowment to the millennium seed bank ultra vires? What about the £100 million endowment fund of the Millennium Commission to ensure a permanent future for millennium awards? Is that ultra vires?
On Second Reading, the Minister implied that nothing ultra vires had gone on. He said that the Bill will ensure that charitable bodies are not put at a disadvantage in gaining access to lottery funding."—[Official Report, 28 February 2003; Vol. 400, c. 541.] That is fine. In my submission, there is no need for the Bill to be retrospective. The Minister used the expression "tidy up the legislation". That is the precedent that the Government have used on the latest draft of the proposed European constitution, which they say is a tidying-up exercise. We now find its origins in the Minister's comments on Second Reading of this Bill.
I thought that all might be revealed by reading what was said about this issue in Committee. I must say that I was extremely disappointed to see that the Standing Committee on the Bill sat for only 22 minutes. With the greatest respect to my hon. Friend, I do not think that during those 22 minutes the key questions were asked and they were certainly not resolved.
On Second Reading of the previous Bill, the hon. Member for Norwich, North (Dr. Gibson) said that out of eight national lottery distributing bodies, only the charities board is prevented outright from granting endowments".—[Official Report, 23 March 2001; Vol. 365, c. 584.] The then Under-Secretary of State for Culture, Media and Sport, the hon. Member for Vauxhall (Kate Hoey), said that that Bill would help to put the NLCB on the same footing as the other lottery distributors, enabling it to make grants towards endowments when it wished to do so. She went on to say: Anyone who is against the Bill must say why the National Lottery Charities Board should be treated differently from the other lottery distributors under the current law."—[Official Report, 23 March 2001; Vol. 365, c. 619–20] 611 We must consider whether the Government are using this Bill as a device retrospectively to validate that which is at the moment ultra vires. If not, what is the purpose of clause 1(9)? I hope that the Minister will address these serious concerns.

§ Mr. Keith Simpson (Mid-Norfolk)
I welcome my hon. Friend's gimlet eye over the proceedings. I am sorry that he was unable to be with us for Second Reading. If I had known of his enthusiasm, I would certainly have asked him to serve on the Committee, but I understand that he has wider parliamentary duties. I hope that he will accept that there was no attempt on my part to ensure that the regulatory impact assessment was not available or hidden from hon. Members on Second Reading or in Committee. Like him, I believe that there should be transparency and openness, and that such documents should always be put in the public domain and preferably made available to colleagues before a debate.
I note that new clause 1 has been tabled in a probing spirit. It would delay the commencement of the Bill following Royal Assent. As I understand it, although this is a common provision for which preparatory work may be needed, such as the drafting of any underpinning statutory instruments, it is not necessary in this Bill. No statutory instruments need to be prepared, and there is no other reason for delaying commencement when it is enacted.
The Bill makes the proposed changes retrospective, because they are liable to throw doubt on powers that have already been exercised in good faith by distributors. My hon. Friend questioned that. Delaying commencement would lead to an unsatisfactory period of limbo, in which distributors who had reasonably believed they had the power to fund endowments might feel constrained no longer to exercise those powers until after commencement.

§ Mr. Chope
I am intrigued by what my hon. Friend says. How does he square that with what is contained in paragraph 1 of the regulatory impact assessment, which says: The stated view of the Department is that all Lottery distributors, with the exception of the Community Fund (the operating name of the National Lottery Charities Board, which gives grants to charities and the voluntary and community sector), are able to make grants to fund endowments.

§ Mr. Simpson
That is an opinion. I shall link this issue with the points that my hon. Friend made about amendment No. 1, which would remove the retrospectivity provision. As he knows, in its current form the National Lottery etc. Act 1993 gives distributing bodies the power to distribute lottery money for meeting expenditure such as that covered by section 22 of that Act.
The relevant provisions of the 1993 Act do not make explicit whether that power includes the power to fund endowments. It became obvious on Second Reading and in Committee—the Minister has also made it clear—that distributors other than the Community Fund have the power to fund endowments, and advice to that effect has been issued by the Department in the 612 past, both under the present Government and when we were in office. However, the position is by no means clear in the legislation. The intention of the Bill is to clarify the position for distributors generally, as well as ensuring that the Community Fund has the power to fund endowments.
That said, it would be wrong in clarifying the position to cast doubt on the legality of previous grants made by other distributors to fund endowments, especially when that has been done in the light of advice by the Department and when no one has ever sought to challenge the lawfulness of doing so. That is the key point

§ Mr. Chope
Surely the mere fact of making such provisions retrospective raises the spectre that existing endowments are indeed ultra vires. I take my hon. Friend's point, but if there is a need to clarify matters, why cannot that clarification apply in future, instead of being a retrospective validation?

§ Mr. Simpson
We are perhaps debating on the margins. There is no conspiracy at all. We want to clarify the position, and in no way are we raising the spectre that something was done illegally. I hope that my hon. Friend will accept that we are acting in good faith and not attempting to set a precedent, and that he will consider that and listen carefully to what I say. Obviously, I hope that he will also take into account what the Minister says, and I have no doubt that he will ask the Minister some probing questions.

§ Mr. John Greenway (Ryedale)
Having dealt with the original Bill for the Opposition two years ago, I am very glad to contribute today to what I hope will be a satisfactory conclusion of the Bill's consideration in the House and to congratulate my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) on it.
I listened with interest to what my hon. Friend the Member for Christchurch (Mr. Chope) had to say, and he has served a very useful purpose in reminding hon. Members who introduce private Members' Bills that we need to pay regard to regulatory impact assessments. As I am promoting the Ragwort Control Bill, which is due to be considered on Third Reading on 11 July, I have made a note to ensure that the regulatory impact assessment is published forthwith. My hon. Friend is exactly right to suggest that, even if the advice is that there is no reason to be concerned, it is still worth having.
I agree totally with my hon. Friend the Member for Christchurch on the point about Royal Assent. We had hoped to put such a measure on the statute book two years ago, so I cannot see the point of any further delay. As my hon. Friend the Member for Mid-Norfolk says, there is no requirement for statutory instruments, so let us press on with the Bill and hope that it is dealt with expeditiously in the other place.
My impression is that the very fact that we are making this change at all calls into question the legality of the advice, so retrospectivity is probably essential. Governments of all colours introduce Bills and the 613 House scrutinises them, but sometimes not with all the time available that we would like. That is a growing concern, but when it becomes clear something that has been done may not be absolutely correct, we have to take the advice of parliamentary counsel and make the change.
I would simply say to my hon. Friend the Member for Christchurch that the original legislation was introduced by a Conservative Government, and if a small change needs to be made to put right what may have been an oversight by that Government, all Conservative Members have a duty to support my hon. Friend the Member for Mid-Norfolk and to reject the new clause.

§ Bob Russell (Colchester)
I support the Bill as drafted. It was dealt with in Committee in 22 minutes, with cross-party support. I sincerely hope that the long debate that we have already had will not prevent the Bill from proceeding. It could and perhaps should have been passed two or three years ago. I congratulate the hon. Member for Mid-Norfolk (Mr. Simpson) on introducing the Bill and the Eastern Daily Press on supporting it, so I hope that the new clause will be rejected.

§ The Minister for Sport (Mr. Richard Caborn)
It would have been good if the hon. Member for Christchurch (Mr. Chope) had attended the debate on Second Reading and raised his concerns then, because the general approach to the Bill has been one of all-party support, as the hon. Member for Colchester (Bob Russell) said, and there was simply an oversight when the National Lottery etc. Act 1993 was originally put on the statute book. A general consensus has emerged to try to rectify that anomaly in the 1993 Act, so it is unfortunate that such a new clause, which throws doubt on that, has been tabled during the later stages of the Bill's consideration.
May I say straight away that I apologise to the House for the fact that the regulatory impact assessment was not placed in the Library immediately after the debate on Second Reading? That was an administrative oversight. It is interesting that the right hon. Member for Bromley and Chislehurst (Mr. Forth) always finds a conspiracy or something similar when there has been an administrative oversight, but I will nevertheless ensure that my Department lives up to what the Prime Minister said about regulatory impact assessments in the future. We will try to hit those time targets because it is very important for the fullness of debate, whether on this or any other Bill, that those assessments are in the public domain, so that objective judgments and debate can take place on the Bills to which they refer.

§ Mr. Chope
I am grateful to the right hon. Gentleman for that fulsome apology. Will he explain further why, considering that he signed the regulatory impact assessment on 27 January, it was not even available before the debate on Second Reading? Does he accept that it would have been much better if it had been available even before the debate on Second Reading?

§ Mr. Caborn
The answer is yes. As I say, there was an administrative oversight. I do not think that the Bill was probed to a great extent in terms of its regulatory impact 614 assessment, but I acknowledge what the hon. Gentleman is saying. I reiterate that the regulatory impact assessments ought to be made available, and I shall try to ensure that my Department puts them in the public domain, so that they can inform the debates on Bills with cross-party support, such as this one, or on any other Bill. I give that assurance, and my Department will try to live up to that.
I wish now to refer to new clause 1. I agree with the hon. Member for Mid-Norfolk (Mr. Simpson) that it is not necessary. As we said on Second Reading, there is a need to make progress with the Bill—it needs to be implemented as quickly as possible. New clause 1 would add nothing to it.
On amendment No. 1 and retrospectivity, I wish to say that, on the basis of the Department's legal advice, the current legislation allows distributors other than the Community Fund to fund endowments. However, the Bill seeks to clarify the position of distributors generally. Distributors' existing powers could be called into question, so we believe it is right to confirm the legality of past grants to fund endowments. It is important to take this opportunity to reassure people and to ensure that things are watertight in that sense, as that produces good legislation. It would be wrong to allow the opportunity to bring surety to the situation to pass. We have taken that opportunity, but there is no doubt that all the legal advice obtained by my Department says that the actions taken to date are indeed proper.

§ Mr. Chope
Will the Minister therefore speculate on what the situation would be if such retrospectivity were not included in the Bill? Is he saying that its inclusion makes no difference, or that it would put in jeopardy endowments that have already been set up? If so, which existing endowments would be questioned?

§ Mr. Caborn
I am not going to speculate; it would be very foolish to start to do so. We are only trying to take advantage of the opportunity, which all parties want to take, to reassure people that all those decisions that have been made on endowments are indeed legal. We have no doubt that they are legal, but we want to take the opportunity to give that reassurance, and in my opinion it would be stupid not to take it.

§ Mr. Greenway
Perhaps we could give the assurance in a slightly different way. Can the Minister confirm that to his knowledge there has never been any suggestion of a challenge as to the legality of the endowments that have been created? That is my understanding.

§ Mr. Caborn
The hon. Gentleman is correct. There has been no challenge. Indeed, there has been no inference of a challenge. However, I reiterate that it would be foolish if we did not take the opportunity to reinforce the provision and reassure those who are distributing those funds.

§ Mr. Chope
We have had a useful debate, as I think everyone who has participated in it has accepted. It is important to get on the record the reasoning of the Government and of my hon. Friend the Member for Mid-Norfolk (Mr. Simpson) in introducing a retrospective element. As I said earlier, to have a retrospective element in a Bill is exceptional; it should be 615 included only in exceptional circumstances. As the Minister has assured us that there have not been any challenges on the matter and we are not seeking to prevent someone from making a challenge, for example, in the courts, I beg to ask leave to withdraw the motion.