Childcare Bill [HL]

Lord Wallace of Tankerness Excerpts

Wednesday 1st July 2015 Lords Chamber

[Baroness Smith of Basildon (Lab)]

My Lords, I apologise for detaining the House prior to Committee but I had given notice to the Government that I would be speaking on this matter. I am grateful to the noble Lord for his explanation. It is unusual when a Minister moves a Bill to be taken in Committee that he makes such a lengthy statement and I think it is an indication of the concern that has been expressed around your Lordships’ House that he has chosen to do so today. It is helpful to a degree and I am grateful to him for doing that. Perhaps we would not have had that statement today had it not been for the report from the two committees and our intention to speak today prior to Committee.

This is an important Bill, and we all want to ensure that there is proper and effective consideration of it. However, the way in which the Government have brought forward the Bill has serious implications for how we as a House consider legislation and fulfil our constitutional obligation as a revising Chamber. We cannot revise that which is not there. The primary role of your Lordships’ House is effective scrutiny. That Ministers accept so many amendments in your Lordships’ House, and propose others following our debates, is evidence that this role is valued by Governments in improving legislation.

At Second Reading, concerns were raised about the lack of detail in the Bill from all sides of the House, including from noble Lords on the Government Benches. Since that debate, both the Constitution Committee and the Delegated Powers and Regulatory Reform Committee have reported. The Constitution Committee today says that this is, “a particularly egregious example” of the kind of legislation coming forward from government, and,

“an example of a continuing trend of constitutional concern to which we draw the attention of the House”.

The Delegated Powers and Regulatory Reform Committee, in its report published on Friday, agreed with many of the concerns that were raised at Second Reading and said that it was:

“Unable to understand why the Bill has been presented in a skeleton form only”.

Rarely has this House seen such stark criticism of a Government’s failure to provide the information needed to allow proper consideration of legislation at the start of a Bill for Second Reading, or indeed for Committee. The Delegated Powers Committee rejected the Government’s bizarre assertion in their report that,

“too much detail on the face of the Bill risks obscuring the principal duties and powers from Parliamentary scrutiny”.

Surely it is the purpose of this House to examine the detail of a Bill. The committee also rejected the notion that regulations can be published at a later date to deal with what the Government referred to as,

“operational, administrative and technical details”.

The committee has been very clear that the use of regulations in this way is “inappropriately wide”, “flawed”, “vague” and that more detail is essential, otherwise,

“the House will have insufficient information … for a properly informed debate”.

Most damning of all, the committee also rejected,

“the Government's attempt to dignify their approach to delegation by referring to a need to consult”.

I think we heard from the Minister’s statement that the committee is highly regarded by your Lordships’ House and by Governments, who rarely fail to give effect to its recommendations. This is not at all a party-political matter—far from it. The committee is cross-party, and we on these Benches support the aims of the Bill. However, for this House to do its job it must have more than the bones of a policy to scrutinise. Our concerns, as the Government will understand, are wider than the Bill. The fact that the Minister has been brought to the House to make quite an unusual statement before the start of Committee today, as welcome as that is, is an indication that the information to date is completely inadequate. Therefore, with the wider concerns that no Government should consider this to be an appropriate approach to legislation or business in your Lordships’ House, I would be grateful if he can clarify some points.

The Minister said that there have been discussions among the usual channels, and the Report stage will not come forward before October. I will press him a bit further, as I was not 100% clear about that from the other comments he made. We are looking for guarantees and assurances on just three points about information being available, not by a specific date but prior to consideration on Report. The Minister may have addressed those points in his comments, but I will be grateful if he could confirm, first, that the committee’s report is followed up by the Government and effect given to its recommendations to amend the Bill. He said that he would take consideration and take note, but I was not sure if he said that he would bring forward amendments as the committee recommended. Secondly, the draft regulations that were provided for consideration must also be available prior to Report. Thirdly, the most crucial piece of information we require is that the financial report, which is the basis on which this policy will succeed or fail, will be made available before Report.

We do not in any way want to delay consideration in Committee, but we recognise—I think the Minister has gone some way towards recognising it today—that without this information, despite the best efforts of noble Lords who will take part in this debate, scrutiny will be inadequate. That information is essential for Report, otherwise we could not consider the Bill effectively. Finally, on behalf of the whole House, can we have a categorical assurance from the Government that this will not be their approach to any future legislation?

[Lord Wallace of Tankerness (LD)]

My Lords, further to the comments and concerns expressed by the noble Baroness, Lady Smith of Basildon, I also thank the Minister for setting out the Government’s position when he moved that the House should go into Committee. It is helpful that he indicated that Report stage will not be until October, but, like the noble Baroness, I was not entirely sure what he was saying in terms of a commitment to amendments. We will therefore reserve our position with regard to anything that may come forward from the Government after they have given consideration to the many concerns expressed not only in your Lordships’ House but also, and particularly, in the committee reports that have been referred to.

This legislation has the hallmark of a party policy announcement during a general election, with the Government now desperately trying to figure out what it means and how to put it together. The comments of the Delegated Powers and Regulatory Reform Committee —which, having recently been in government, I can attest is a committee that Ministers take very seriously indeed—are some of the strongest that I can recall. The noble Baroness said, quite rightly, that it is a cross-party committee chaired by a member of the governing party. When the committee makes comments such as:

“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 a strong condemnation which I think shows that the Government have not given the matter adequate thought.

My real concern is that this is not the only Bill where the Government have singularly failed to make a clear case for the policy that they are advancing. People have been watching the proceedings on the Cities and Local Government Devolution Bill. That is a policy that also generally commands support but, nevertheless, we have seen in that case, too, the Government seeking to make policy on the hoof and pass through the revising Chamber legislation that fails to stand up to the most basic test of scrutiny.

I suggest to the Minister that—while it may be past praying for these Bills as they were introduced—tools such as pre-legislative scrutiny might be used more regularly when the Government want to do something that is, at the outset, somewhat unclear regarding the detail of how they wish to proceed. They might reflect on the failure to use the mechanisms available to them for this Bill and ensure that such measures will be taken, where appropriate, in the future.

The Minister said that there had been agreement to make progress. My noble friend Lady Pinnock will indicate today in Committee that we do not want to see this Bill delayed; we want the Government to get their act together and make reasonable progress with a measure that commands, I think, a fair degree of support. Primarily, our position is that we want reassurance that, in the future, this House will not be frustrated in its fundamental role of effective scrutiny because the Bills presented to it have not been properly thought through.

[Baroness Andrews (Lab)]

I want to reinforce the points that have been made by my noble friend the Leader of the Opposition and by the previous speaker. I was critical of the Government on Second Reading because I felt that the Bill that they introduced was, essentially, an abuse of process. Having read the report of the Delegated Powers and Regulatory Reform Committee, I think that I rather understated the case. Now that I have seen the Constitution Committee report, which points to an increasing trend of legislation that is vacant and in fact leaves most of the delivery to regulations, I think that I have been even more restrained. I am grateful for what the Minister has said today because he has responded to many of the concerns that were raised, but I want to press him on a few things.

To pick up on the previous speaker’s statement about the mission statement, the nature of the Bill, what the Delegated Powers and Regulatory Reform Committee said is excruciating stuff, advising the Government and officials that Bills are not there to “send a message”; they are there to implement legislation. I think back on great reforming legislation, such as the National Health Service Act 1946. If it had just sent a message that it would be rather good to have a national health service and left everything to regulations, we would be in a fine mess now, but that is precisely the nature of the trend of legislation that we see in this House, which is a point that has also been picked up by the Constitution Committee. Without knowing the likely impacts of this Bill, it is very difficult for this House to do its job. As my noble friend the Leader of the Opposition said, it is not so much a question of when Report stage is introduced, it is whether we will have the fundamental information that we need to actually test this Bill in this House as we are required to do.

We are in favour of the Bill. Who could possibly be against the expansion of affordable childcare when so much more is needed, when so many parents are not able to access it and when so many children are in need of the sort of quality childcare that lifts their learning and gives them a good start? In this Bill we will be looking for evidence of not merely an increase in capacity but a genuine increase in quality. However, at the moment we do not know whether the Bill will meet its objectives. We do not know whether it will make the situation better or worse, because there is currently a real issue of capacity in the childcare system. Many childcare providers think that at the moment the Bill could reduce capacity. That is why by Report we need a full account of the evidence that has been provided to the Government so that we can make a judgment about how to improve the Bill, how to deliver the objectives and how to get the best possible outcomes for children and parents.