Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) (No.2) Regulations 2020

Baroness Scott of Needham Market Excerpts

Friday 9th October 2020 Lords Chamber

[Baroness Scott of Needham Market (LD) [V]]

My Lords, it is fascinating how a debate on a modest SI on a Friday afternoon is throwing up such interesting and potentially far-reaching issues. I declare an interest as a trustee of two charities: the Industry and Parliament Trust and Community Action Suffolk. I absolutely associate myself with the remarks of the Minister about the role that charities play in public life generally and during the difficult pandemic period. I also back up the remarks of the noble Lord, Lord Foulkes, on how difficult many charities and voluntary organisations are finding things.

I will confine my remarks to points raised by the Joint Committee on Statutory Instruments, of which I am a member. As the Minister outlined in her full introduction, the predecessor SI had something of a chequered history in its drafting and procedure. These regulations modify the initial regulations laid on 6 July, which, as we have heard, contained a number of errors which were picked up by the JCSI. The Minister has assured us that no stakeholders have been negatively impacted by these problems, but I respectfully note that that is rather beside the point—had they been badly impacted, it would have been worse in some ways, but this shows how much better it is to get it right first time.

The JCSI picked up the question of communications between the DWP and DCMS, which clearly fell down here. The Minister has been very open about that and we welcome her reassurance that they will try to do better going forward. What she has not referred to, and which is very serious in my view and that of the committee, is the requirement to notify both Speakers when a regulation comes into force before it is laid before Parliament. The Speakers should be notified immediately, and in this case they were not; the notification arrived 13 days later. Having asked for an explanation, we have not seen a satisfactory reason why this delay took place. This is very serious.

I am not picking on the Bill team here. There is clearly is quite a problem across the Civil Service. The Secondary Legislation Scrutiny Committee report of 1 October highlights that, so far in this Session, 8.5% of instruments have had to be replaced or corrected. It regards 5% as the absolute maximum to which that should apply.

In recent weeks, both Houses have spent a lot of time debating and thinking about a meaningful role for Parliament in the scrutiny and agreeing of secondary legislation, but I would also argue that proper drafting is an important part of this that we must not neglect. That legal certainty is important.

In my 20 years in the House, I have seen an increased tendency for legislation to rely for important detail on swathes of delegated powers that come forward, sometimes many years later, in the form of regulations and secondary instruments. When you add that trend to the immediate challenges of legislation related to both Brexit and Covid, the Civil Service is having to draft SIs at a pace that could never have been foreseen. Nevertheless, we must get it right.

I will finish with a quick remark about the role of the Joint Committee on Statutory Instruments. The legal advisers available to work with the committee are absolutely superb; I see this every week in my working life. It is fair to say that, although they are not exactly the friends of the department—it is important that they maintain independence on Parliament’s behalf to ensure a split between the Executive and Parliament—they are not the enemies of the department either. They just see themselves as complementary and are always happy to work with departments that have any doubts about procedure. If departments could see them more as a kind of critical friend, it might save us having to come back and revisit the 8.5% of SIs that we have heard about.