Childcare Bill [HL]

Baroness Smith of Basildon Excerpts

Wednesday 1st July 2015 Lords Chamber

[The Parliamentary Under-Secretary of State, Department for Education (Lord Nash) (Con)]

It may be helpful if I report to the House that there have been productive discussions in the usual channels about the next stage of this Bill and that as a result of these discussions we will be looking to arrange the Report stage for October when the House returns from the conference recess.

Noble Lords will be aware that last Friday the Delegated Powers and Regulatory Reform Committee published its report on this Bill and other Bills before the House. We are of course mindful of that report and its recommendations in respect of this Bill and intend to prepare and publish our response in good time before Report, including tabling government amendments where appropriate. Both these points are relevant to our discussions on the amendments that have been tabled for consideration this afternoon. I hope it is therefore helpful to have set them out at this first available moment in proceedings this afternoon.

The noble Baroness, Lady Jones, and I had a helpful conversation last night. We agreed about the importance of making progress with this Bill and the important commitment to children and parents that it makes. I know that all in this House are agreed about that. We also agree that it is important that the voices and expertise of parents, providers, local authorities and employers properly inform the provisions we will make. I know that noble Lords want us to take time to get that right and the noble Baroness, Lady Jones, has raised many questions about it. The noble Baroness asked if I could be specific about the further information that will be available before Report to confirm and build upon the commitment I made in my policy statement that I sent to noble Lords last week. It is our intention to provide a full update to the House on how we will deliver this extended entitlement and an update on our plans to pilot it in 2016. This will take account of our consultations with parents, providers, local authorities and employers over the summer, the helpful contributions which I anticipate from your Lordships tonight and of course the recommendation of the Delegated Powers Committee, which asked for clarity about how we intend to use the powers.

In time for Report, therefore, the House will be able to scrutinise that information and we will respond formally to the Delegated Powers Committee. If appropriate we will bring forward amendments to the Bill which respond to its recommendations. We will also of course pay careful attention to the views that the Delegated Powers Committee has expressed about affirmative procedure. As noble Lords are aware, it is our intention to consult fully on draft regulations and guidance in the first part of 2016 after Royal Assent. In this regard, I am lucky and extremely grateful that the noble Lord, Lord Sutherland, has agreed to work with me and the department to find a way in which we can take advantage of the invaluable expertise of members of the Select Committee on Affordable Childcare and others in this House to work with us on those regulations in due course to ensure that they are thoroughly fit for purpose.

Meanwhile I am delighted to confirm that we have already deliberated across government on the points raised at Second Reading and by the Delegated Powers Committee about the provision in Clause 1(5)(g) which will allow us to establish a body corporate. The noble Baroness, Lady Jones, has tabled Amendment 18 to remove that provision and I am pleased to inform the House that it is my intention to accept that amendment tonight. I beg to move.

[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.