Lord Moynihan:

Moved by Lord Moynihan

18: Clause 2, page 2, line 28, after “a” insert “men’s”

My Lords, Amendment 18 covers the issue of the scope of the Bill, and particularly women’s football. The Clause 2 stand part debate will focus specifically on the concerns that the Delegated Powers and Regulatory Reform Committee has raised for the consideration of your Lordships.

As regards the women’s game, I seek clarification from the Minister. There is, as noble Lords know, a delegated power in the Bill that allows, at any time in the future, the Secretary of State to amend the scope of the Bill and include women’s football. At present, women’s football is not covered, mainly because of the future of women’s football review, which recommended that women’s football be given a chance to self-regulate. However, it noted that the market shares some similar problems with the men’s game, and, given that the policy intent was that the regulator should not regulate women’s clubs—

I am mindful of the fact that the noble Baroness, Lady Grey-Thompson, is not here. She and I, and others, have an amendment specifically addressing the issue of the place of women’s football. Would the noble Lord withdraw his amendment this evening so that the noble Baroness could at least be here to take part in that debate? I know it is very close to her heart and I am trying to save us from having two debates.

I appreciate that. I will considerably curtail, so I do not need to come back to repeat what I have just said, and simply put a number of very brief questions. Unfortunately, that was not of my doing, as the noble Lord knows, and the powers that be will no doubt look rather more closely at future amendments to make sure that there is no overlap.

I simply ask the Minister one question: what specifically would need to happen for the women’s game to be added into the proposed regulatory framework? I will leave it to the noble Lord, Lord Bassam, and others, to explore in more detail questions surrounding the ownership of clubs, which regard both women’s and men’s participation as equally important, and therefore the fitness of directors tests, et cetera. To assist the process of speeding up matters in your Lordships’ Committee this evening, I will not ask any further questions on that but will leave it to the noble Lord, Lord Bassam, and the noble Baroness, Lady Grey-Thompson, to consider that in greater detail.

I turn to the Delegated Powers and Regulatory Reform Committee, which is absolutely relevant to Clause 2—unless the noble Lord, Lord Bassam, has identified a further group of amendments that we can tie this in to. Clause 2 is really important, because it gives the Secretary of State significant powers through secondary legislation. As the Minister knows, the Delegated Powers and Regulatory Reform Committee is a highly respected Committee in this House, and we have a senior member of that committee present this evening. I declare an interest, having served on that committee.

There was real concern that the meaning of English football as defined in Clause 2 was left unclear in the Bill. We covered that briefly at an earlier stage but, to cut to the point, their comment was:

“The policy intent has always been that” the clubs in scope of the regulator’s remit

“should currently be the top five leagues of the men’s English football pyramid only”.

Given that, it is somewhat concerning that there is so much scope given to change that in secondary legislation, without the opportunity we would have of considering the benefits, or otherwise, of any significant changes to the Bill, which would be really significant. Therefore, it was not surprising that the Delegated Powers and Regulatory Reform Committee stated:

“The argument that something should not be fixed in primary legislation because it might need changing in future would be an argument against having any primary legislation”.

That is a fairly powerful point for that committee to make in the context of this Bill—indeed, of any Bill brought before your Lordships’ House.

The committee continued:

“The current system of leagues works well. If it were enshrined in primary legislation, it could still work well and, if it ceased to do so, the primary legislation could be amended. Primary legislation is constantly being amended” to be

“fit for purpose”.

So I very much hope that the Minister will take careful note of the advice offered by that committee. It is very rare that we would ignore that committee or reject the most important recommendation that it has made. It makes a very strong point there. This is an enabling Bill. Clause 2 gives wide-ranging remits to consider the inclusion of women’s football to the Secretary of State—not, by the way, to the regulator. Equally, it is clearly a Bill about the men’s game, which brings forward clear primary legislation on the role of the regulator in the context of the men’s game.

That being the case, I see no reason why this legislation should not be very clear about its purpose and not leave it open to secondary legislation, which gets far less attention in your Lordships’ House. We know that from both sides of the House, whoever has been in Government: it is easy to slip through secondary legislation. We cannot deal with it clause by clause; we either accept it or reject it and we do not have a Committee stage on it.

The two powers vested in the Secretary of State under Clause 2 are of such importance that I very much hope that the Minister will take away the points I have just raised and give further consideration to putting the Bill’s intent clearly within it, rather than leaving it to future secondary legislation. I beg to move.

My Lords, I will speak very briefly. I appreciate that with legislation it is always better to have what you want on the face of the Bill. The women’s game needs more attention here, as this is something that deals totally with the top five leagues of the men’s game. It is also true that with a little bit of will, we could amend it. However, we are sitting here thinking about what would be best for the development of women’s football. When the Minister comes to respond, I hope she will give us a better steer on what they regard as that future. It is a growing sport that has outstripped everybody’s idea 20 years ago of where it would be, and we need to discuss what is happening there. My gut instinct is to resist this for the women’s game, but my legislative experience says we should have a definition here.

I am scratching my head a bit on this. I am with the noble Lord, Lord Addington, in that I would like to see the women’s game included. However, I accept that there is a debate to be had around that, so there could be an argument for having that as part of secondary legislation. What I do not understand that there could be a debate about is whether the Premier League or the EFL should be included. I do not understand for one moment why you would not have that on the face of the Bill. I do not think any of us would debate for one second the thought of somehow having all these discussions and not including the Premier League or the EFL.

I will freely admit that I am not very well versed in this, but my understanding is that, if it was mentioned on the face of the Bill, that does something about the hybrid nature of the Bill and would mean there are greater consultations and involvements that we would have to have—maybe some other noble Lords can help me out here—with those bodies that are impacted by the Bill. If that is the case, and if it is absolutely obvious to everyone here that of course the Premier League and the EFL are going to be involved in this, and probably some others as well—maybe the noble Lord can help me with this in a minute—I think there are consequences from not having it on the face of the Bill. That means it is not getting the proper involvement that you would expect, having the Premier League and other impacted bodies such as the EFL as part of this.

Again, all of this is an education for me and I think my noble friend Lord Goodman might be about to stand up to help me on this. But, if not, maybe the Minister could answer that, because it seems so obvious to everyone here that of course it is going to include the Premier League and the EFL. Why would you not have that on the face of the Bill?

My Lords, I rise to speak to my amendment about the inclusion of the National Leagues North and South. I accept that my amendment is defective; I think the Committee on Statutory Instruments has declared it as such. However, I will use this opportunity to raise the question of where down the pyramid the regulatory process should stop.

Some of the teams in the National League North and National League South are quite substantial. Scunthorpe United is quite a big club and has a turnover somewhere in the region of £5 million to £6 million a year. Torquay United has a turnover of probably £2 million or £3 million a year. Even Maidstone, another former league club, has a turnover of between £2 million and £3 million a year. These are small but substantial businesses. They probably employ no more than 10 or a dozen staff—Scunthorpe probably employs more than that, looking at its accounts—but we expect other parts of the business world to be regulated by health and safety or environmental legislation, by financial conduct rules and regulations, and so on.

It is not smart to leave those two leagues out of consideration, because one of the things we should worry about is predatory ownership. We have seen some of that in the past, to the detriment of clubs in the lower leagues. The Bill is about making sure that the clubs in the lower leagues are properly protected. We have heard a lot from noble Lords on the Opposition Benches about the Premier League and how they believe that the regulatory regime may be damaging to the Premier League, but it is the plight of clubs lower down the pyramid that has sparked the most concern over the years and has been the motor for both major political parties to seek a football regulator.

I make that point because at some stage, we will need to have the National League North and National League South clubs in the regulatory framework. It seems odd to regulate one of the National League’s divisions, but not the other two. I wonder about the cliff-edge effect of having clubs coming up from both those leagues into a system of regulation. That does not necessarily seem to be the right way to do things; it would be better if they were all captured by the same framework.

The Minister made the point at Second Reading that regulation would be appropriate at each level of the pyramid—that has to be right—and that teams in the National League do not require the same degree of regulation as teams in the upper leagues. That is a sensible and proportionate way of looking at things. These clubs are already used to regulation; they are regulated by other regulators.

There is a case that we need at an early stage in the life of the regulator—I accept it may not be now—to have a report, or perhaps a section in the “state of the game” report, that looks at this issue. There may well be some unintended consequences and some cliff-edge issues, and if we do not get regulation right for these clubs, which could be vulnerable to predatory takeovers, some of them may well suffer as a consequence. None of us in the Committee wants to see that happen—I certainly do not, based on my experience as a Brighton & Hove Albion Football Club fan in the 1990s, when we were nearly destroyed by a predatory takeover. We very nearly went out of the league and out of business, and it took us a decade to recover our position.

My Lords, I will follow my noble friends Lord Moynihan and Lord Markham in their references to the Delegated Legislation Committee.

I hesitate to disagree with anything my noble friend Lord Moynihan says in any way, but he described me as a senior member of the committee, and I am afraid that this is not accurate. I am, in fact, the most junior member of the committee, having arrived only very recently, but certainly in time to consider this Bill. When I joined the committee, I found that it was very worked up about the rise in secondary legislation, as it set out in its key document, Democracy Denied?, published in 2021—I will come to the significance of that date in a moment. It criticised the use of Henry VIII powers, disguised legislation and skeleton legislation, saying:

“The abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy, and this report will, we hope, be a prompt to strengthen Parliament in the coming years”.

I find myself in an awkward position here with my own Front Bench, because in 2021 a Conservative Government were in office. The committee clearly feels that this tendency for skeleton legislation, Henry VIII powers and so on has carried on from 2021 to the present.

My noble friend Lord Moynihan will remember that at Second Reading, he drew attention, as I did, to Clause 92(3), which states:

“The Secretary of State may by regulations amend …the definition of ‘football season’” and

“the definition of ‘serious criminal conduct’”.

Such is the exquisite moderation of the committee that we did not follow that matter up in the report, but we did concentrate on the issue, raised by my noble friend Lord Moynihan, of the leagues not named in the Bill. He has read out the relevant sections of the report, and I have no intention of reading them out again.

However, I reinforce the closing point made by my noble friend Lord Markham and put it to the Minister in the form of a question. Can she confirm or deny that if the leagues in the pyramid were to be named in the Bill, the Bill would therefore become hybrid? She is nodding, and she will doubtless amplify on that nod when she responds to the debate, but that is a very important point. If that is the case, did the Government refer to that in their discussions with the committee clerks when they were drawing up the report?

My Lords, nobody faint, but on this issue I fully support the noble Lord, Lord Parkinson. I bear the scars of Democracy Denied? It was an excellent report that it took us quite a long time to bring through. The Government cannot have it both ways. We say that the purpose of the Bill

“is to protect and promote the sustainability of English football”,

yet it does not explain what English football is.

That is the nub of this. We spent hours on the first part of that, but the second part we seem to want to leave to the Government, because it is seemingly easier to amend delegated powers than primary legislation powers. That is not the point. What is in the tin should be on the front of the tin. It should name what it is doing, which is the Premier League and the Championship. It could go down the tiers and include leagues north and south. You would then have a full list of what this legislation is covering. It is probably just bad drafting, and no more than that. This could be done very simply. Everybody would then understand what the Bill is about.

I will speak to my amendments in this group, and I want to extend the point that the noble Lord, Lord Goddard of Stockport, has just made, as it is a very important one.

I appreciate this may have been a painful experience for the Minister, the Bill team and others. We have spent our first two days in Committee looking at Clause 1 and the definitions of “the sustainability of English football”. However, as the noble Lord said, the lack of precision in the Bill in that regard is what has elongated our debates over the last two days in Committee and so concerned the Delegated Powers and Regulatory Reform Committee of your Lordships’ House. It bears repetition to draw the Committee’s attention to paragraph 3 of the committee’s report, published on 22 November:

“The fundamental purpose of the Bill is to ‘protect and promote the sustainability of English football’. One must go through a series of definitions only to find that the Bill does not, after all, provide the definition of English football. Ultimately, the meaning of ‘English football’ depends on regulations to be made in due course by the Secretary of State”.

That is why we have had some rather tortuous debates on the opening clauses of the Bill, and why we are concerned to ensure that this Committee brings the focus we need to the deliberations on this important Bill.

I will speak to my Amendments 19 and 25, which form part of this group. I am grateful to my noble friend Lord Moynihan for the way he introduced his Amendment 18 and opposed Clause 2 standing part. Amendment 19 seeks to specify which leagues will be under the scope of the new independent football regulator. As the Delegated Powers and Regulatory Reform Committee points out, the Bill as drafted grants the power to decide this to the Secretary of State and for it to be made by statutory instrument. That means that, like the lack of definition of “English football”, there is in the Bill no indication of which clubs and leagues can expect to be regulated. That is because “English football” is defined by Clause 2 as the totality of

“all regulated clubs and all specified competitions”.

“Regulated” clubs are

“clubs that operate a relevant team”,

as the Bill puts it, which is a team that takes part in a “specified competition”, but a “specified competition” is a competition that is specified by the Secretary of State at a later date.

We are in a rather strange place when a Bill to regulate English football does not state what it regards English football to be and does not set out what those competitions are. We know which leagues the Government intend to regulate, at least initially, because they set that out in the memorandum they sent on delegated powers and in the fact sheets they published on GOV.UK and elsewhere. Those documents establish that the initial scope is the top five tiers of the English football pyramid. That is all very well and good but the Bill does not set that out; it does not tell us who will be regulated and does not give the certainty that is needed for those who will have to abide by this new law. It is important that we see that elucidated in the legislation itself.

I am about to touch on an important point: that of the hybridity implications of the Bill. The Minister has already been drawn on this and provided some indication by nodding, which was very helpful. The noble Lord, Lord Bassam of Brighton, and the noble Baronesses, Lady Taylor of Bolton and Lady Grey-Thompson, have tabled Amendment 21. As with my Amendment 19, I think they have similarly been advised that were our amendments to be pushed and become part of the Bill, it would make the Bill a hybrid one. I think the Government have not set out what “English football” is, and which competitions are specified in order to avoid this becoming a hybrid Bill and allowing all those people who will be affected by it to have the rights that they would enjoy if this were a hybrid Bill and they could take part in the debates on it. I would be grateful if the noble Baroness could set that out in a bit more detail than the nod she has helpfully given in the debate. I appreciate that this is a late hour for such an important issue but it is a very important one for our considerations and indeed for all the organisations that will be affected by it.

As the Minister does that, it would be very helpful if she could set this out, not just in relation to this part of the Bill but to Clause 91(5), which is on page 74. Again, this seems to be getting round this problem of hybridity in the rights of all those affected to make their representations directly on the laws that will affect them. That Clause 91(5) says, in relation to secondary legislation that the Bill brings about:

“If a draft of an instrument containing regulations under this Act would … be treated for the purposes of the Standing Orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not a hybrid instrument”.

The Government know what they are doing here. It would be very helpful to have that clarity set out by the Minister, not just from the Committee’s point of view but for the interests of all those who are seeing their limited rights to make their voices known directly taken away. I would also be interested in her response to the points about the secondary legislation in Clause 91.

My Amendment 25 seeks to remove Clause 2(6). This provision states that the Secretary of State does not have to consult with the relevant parties, as established in Clause 2(5), when making the first regulations specifying which competitions are in scope. My question to the Minister is: if the Government believe that the Secretary of State should consult before making these regulations in the future, why should she not consult before making these regulations in the first instance?

Obviously, as per my Amendment 19, I am arguing that the leagues under scope should be in the Bill, which would render Clause 2(6) redundant, but the drafting of the Bill as it stands presents a rather perplexing paradox, even without my Amendment 19. It rightly assumes that the Football Association and the independent football regulator, among others, would have a view on any future changes to the competitions that are regulated, but under that assumption, would they both not have an opinion with regard to the first regulations establishing the relevant competitions when the Secretary of State exercises that power for the first time?

With those questions to the Minister, I am grateful for the opportunity to speak to the two amendments that stand in my name in this group, but particularly to try to underline the importance—at this regrettably late hour—of hybridity in the Bill.

My Lords, I want to pick up exactly the point that my noble friend on the Front Bench has eloquently started to unpack. It is my fault, but I had not thought about this aspect of hybridity until it was developed this evening. It seems that we have two mischiefs compounding on each other here. The Government are relying on secondary legislation to do something that could just as well be in the Bill, and the committee of which my noble friend is a very distinguished member—although whether junior or senior is not for me to judge—dealt with the Government’s purported reasons for not putting any of these things in the Bill in lapidary and devastating style. They knocked each of them down with casual ease.

The one reason, of course, that the Government did not put forward to the Committee, which the Minister—all praise and honour to her—has accepted as the principal reason, was that to identify the five top tiers in the pyramid in the Bill would have risked making it hybrid. However, the reason why we have a hybrid Bill procedure is quite specific. It is because, if you have a Bill that as well as having general effect has an effect on specific private interests, those private interests are entitled to a way of making their specific concerns directly clear to Parliament.

I remember 40 years ago, as a Whip in the other place, taking through the then Channel Tunnel Bill, which was a hybrid Bill, and a very Herculean effort it was, although it was well worthwhile. It was incredibly important that the private interests—many were affected by it—had the right to make their concerns known. Here we have one technique of putting something into secondary legislation which could easily be put in the Bill, and that is something which generally, in your Lordships’ House and in the other place as well, is generally deprecated.

Even worse is when the reason for putting it in secondary legislation is to suppress the ability of private interests—in this case, really important private interests, right the way down to the National League. There are way more than 100 clubs which, according to the Government, make up English football, which is an incredibly successful and important economic interest. We know, because the Government have said it, that those multiple private interests are the intended target for this legislation. So you have a parliamentary or legislative technique, which is to be deprecated in the first place, being used to frustrate a legitimate right of private interests, which have been identified by the Government as the proposed target for this Bill. Each of those two things on its own should be deprecated, but added together they should give the Government serious pause.

I sympathise with the Minister. She probably did not ask to be put in charge of this Bill and it must have looked like it was going to be quite straightforward, because my party’s Government mistakenly came up with the idea in the first place. It must have seemed like it would be a bit of a doddle to take it through; I am sorry for her that it has not turned out like that but, in every debate we have, something else comes up.

We are not playing games. We are talking about something really serious and important, which affects a lot of people’s lives and economic livelihoods. We are seeing more issues arise; as every layer is peeled away, something else emerges that gives us serious pause. So I urge the Minister to take this back to her department and colleagues and say that it is time to look at it again.

My Lords, before I respond on this group, I would like to say that I am absolutely delighted to be taking this Bill through Parliament. If somebody had asked me even six months ago if I thought I was going to have an opportunity like this, I would have doubted them, so please do not feel sorry for me in any form. I am delighted to be taking forward this Bill. I thank the noble Lords, Lord Moynihan and Lord Parkinson of Whitley Bay, and my noble friend Lady Taylor of Bolton, for their amendments to Clause 2.

I will start with Amendment 18 in the name of the noble Lord, Lord Moynihan. It is the Government’s view that the current definition of “team” is sufficient and that the definitions in Clause 2 already work as intended. Which clubs are regulated will be determined by which competitions are specified in secondary legislation, as noble Lords have noted. If those are initially men’s competitions only, as the Government currently intend, only clubs that operate men’s teams will be regulated. Restricting the definition of “team” in statute to men’s teams would not only limit the Secretary of State’s ability to bring the women’s game into scope in the future if it were deemed necessary but send the wrong message to all those girls and young women who play football about the value we place on their contribution to the sport.

The noble Lord, Lord Moynihan, asked what would need to happen for us to see women’s football brought into scope in the future. As he referenced, the Government do not believe that the case for statutory intervention has yet been met in women’s football. It should be given the time, space and opportunity to grow and self-regulate. If in the future it becomes clear that women’s football is suffering from a sustainability problem that the industry authorities have been unable to address, the Secretary of State will be able to conduct a formal review. This will of course include consultation with all appropriate parties. Based on that review, women’s football could be brought into scope.

Amendment 19 is in the name of the noble Lord, Lord Parkinson. I understand his desire to have upfront clarity in the Bill about which competitions will initially be in scope of the regulator’s regime. However, the amendment would significantly undermine the regulator’s ability to react to changes in the structure of the football pyramid in a timely manner.

The noble Lord, Lord Markham, questioned why we do not, for example, name the Premier League when it is obvious that it would be included. Names change, and we have seen the restructuring or naming of leagues, such as in 1992, when the First Division became the Premier League, and in 2015, when the Football Conference was renamed the National League. In such a scenario, failing to amend the scope in a timely fashion could result in the legislation becoming ineffectual and the regulator being undermined.

I thank my noble friend Lady Taylor for bringing forward Amendment 21. As I am sure my noble friend is aware, the Secretary of State would have the ability to specify the competitions in scope of the regulator. Currently, as noble Lords have noted, this is envisaged as being the top five tiers of men’s football in England. Despite my noble friend Lord Bassam’s concerns, the National League North and the National League South would currently not be in scope. These leagues are hugely important, not least to local communities up and down the country, but the amendment would place regulatory requirements on clubs all the way down to the grass-roots level of the game.

We believe that the top five tiers is a sensible and proportionate place to draw the line. It strikes the right balance between the benefits of regulation against the capacity to be regulated and the regulatory burden that comes with being in scope. However, if circumstances change and the Secretary of State feels that the National League North and the National League South would benefit from being within scope of the regulator, the Secretary of State is required to conduct an assessment and act accordingly.

A number of noble Lords raised the question of hybridity—

Before the Minister comes on to that important point, could she say a bit more about what circumstances would need to change for the National League North and the National League South to be brought into scope in the Government’s view? The noble Lord, Lord Bassam, made a powerful case about the size of many of the clubs there and the very valid point, which I meant to echo in my contribution, that those are precisely the sort of teams the Government and their predecessors were both very concerned about in the thinking that led to the Bill—the sort of teams that play such an important role in their communities, that are sometimes more precarious than those at the top of the pyramid, and that, if they went under, would leave such a hole in their communities.

I am slightly confused because the noble Lord is going from being proportionate to now appearing to want us to bring in further—

My noble friend just needs to know why. I hope that the Minister will forgive me for saying so, but that is not a satisfactory response. The problem here is that there seems to be no rationale other than saying it is reasonable and proportionate. On what basis? What is the basis for saying that? Why is the line drawn there? It feels completely random; you could just as easily draw it one up or one down. But if there has been a decision, and clubs up and down the country now have to prepare themselves for the likelihood that the Bill will go through and they will become regulated licensed entities, it is important to know why the line has been drawn in this place.

My Lords—

I am very grateful to my noble friend for giving way. Was it not said at some stage during the consideration of the predecessor Bill before the election that it would be a good idea if the regulator was up and running and got some experience of the regime being introduced before considering extending it?

A few minutes ago, we heard that Members opposite thought that this would be too great a burden on smaller clubs. So perhaps it is a good idea to consider when the time is right and what experience the new regulator will have.

It was the smaller clubs, as well as us, that said it would be a burden to them. I read out what the National League’s general manager said about his clubs and their concerns.

I will address the issue of why the regulatory regime is currently intended to be limited to the top five tiers of football and not to include the National League North and the National League South. The issues we are concerned with arise most typically and markedly in the professional game where the financialisation of clubs is greatest. We recognise that the top five tiers is not necessarily a perfect proxy for the professional game, since some semi-professional and professional clubs can move between these leagues. However, we consider it the most appropriate and proportionate place to draw the line and the place where it would not result in some clubs in the league being subject to regulation and others not. We do not currently believe that extending the scope beyond the top five tiers would be proportionate to the burden on smaller clubs below the National League.

On Amendment 19—and apologies if I am repeating parts of my speech, because it is some time ago that I was actually on my script—in the name of the noble Lord, Lord Parkinson, I understand his desire to have upfront clarity on the face of the Bill.

Turning to Amendment 21, I thank my noble friend Lady Taylor for putting forward this amendment. As I am sure my noble friend is aware, the Secretary of State would have the ability to specify competitions that are in scope of the regulator and we believe that the top five tiers is a sensible and proportionate place to draw the line.

In relation to the points on hybridity, questions of hybridity are for the examiners, not for the Government. If the amendment is made, there will be a process to be followed that will decide whether the Bill is hybrid and needs to go through the hybrid procedures. Initial advice is that the Bill would be thought to be hybrid and I understand that, following the tabling of Amendment 19 in the name of the noble Lord, Lord Parkinson, and Amendment 21 in the name of my noble friend Lady Taylor, issues have been raised about their hybridity.

The noble Lord, Lord Goodman, asked whether we had discussed with the Delegated Powers and Regulatory Reform Committee ahead of the process. We would not discuss committee reports with clerks before they draw them up.

I know that noble Lords want to continue to work constructively on the Bill—

I think my question was, in advance of the committee considering the Bill and the Government giving their reasons to the clerks for objecting to the Bill, why did they not then raise the matter of hybridity? Is it the Government’s position that raising the matter of hybridity just is not their business? If it is their business, why did they not raise it?

It is for the examiners, not the Government, to decide whether or not there is hybridity.

But it is for the Government to decide whether to incorporate something in a Bill that might make it hybrid. She has clearly taken advice which concluded that putting the explicit leagues on to the face of the Bill would make it hybrid. So there was clearly a decision based on that advice to exclude the specificity from the Bill and put it into secondary legislation. I repeat my noble friend’s question: why was that reason not given to the committee?

The primary reason, as I understand it—and it was clearly the previous Government who drafted the iteration of the Bill and the stage of the Bill that we are now at in our discussions is identical to the previous Government’s Bill—was that naming the leagues would mean that, if there was any change in the names of the leagues, there would be an issue in terms of the legislation, as I have outlined previously. I am happy to write to noble Lords on this point.

I am sorry; I know this is frustrating. But this is a really important issue for the Bill and I think there is some confusion. During the debate on this, the noble Baroness very helpfully nodded to give a sense to the question—

It was hybrid—

Let me just ask the question and then the Minister can clarify. Did she nod to agree to the suggestion that, if we had put the names of the leagues—which I seek to do in my amendment or which the noble Baroness and the noble Lord, Lord Bassam, seek to do in their Amendment 21 —on the face of the Bill, this would make it a hybrid Bill, and the reason they are not in the Bill is to stop it being a hybrid Bill? That is what I think we think she was nodding to agree to earlier.

In the speech she has just given, she dismissed my amendment on the grounds that sometimes the names of the Premier League and the EFL and the National League change and that is the reason for doing it. That is a rather different answer from refusing to put it on the face of the Bill because it would make it a hybrid Bill. If allowing those leagues, those clubs, to have access to Parliament to make the arguments about the effects on their private interests and their business is the reason that it is not on the face of the Bill, I think they and this Committee need to know that.

I apologise hugely if my nodding at one point during the noble Lord’s comments meant that other things were inferred. It has reminded me of the dangers of nodding, whether you are nodding to indicate that you understand a point, or that you agree with a point. I was nodding was because in the explanation of this group of amendments that I received from officials earlier today, they made it clear that following the tabling of Amendments 19 and 21, issues have been raised about hybridity. That was the point at which hybridity was raised with me. I hope noble Lords will accept my writing to them to clear up any other issues that might have been raised. I know they want to work constructively on the Bill to make sure that we put in place as soon as possible an effective and proportionate regulator that safeguards the future of our national game, which was a manifesto commitment by the three main parties. I look forward to discussing these amendments further, ahead of Report.

Will my noble friend just clarify that this section of the Bill is identical to the one that was introduced pre-election?

Yes.

With respect to the noble Baroness, Lady Taylor, that point is by the by. I had not appreciated the hybridity question until my Amendment 19 was tabled and the clerks advised me about it, as I am sure she had not in relation to her Amendment 21. It raises some fundamental questions. It is unfortunate that we have come to debate them at this late hour, and I am grateful to the Minister for undertaking to write to the Committee about this; I hope she will be able to do that before our next meeting.

We need to understand this point, because it is a further instance of democracy being denied—the limiting effect it has not just on the ability of both Houses of Parliament to scrutinise legislation, but on private citizens making representations to Parliament about the direct effect on their companies, businesses, clubs and organisations. I asked the Minister about Clause 91, which seeks to deny the right to use the hybrid powers so that they can make their views known directly. If we are going to go down the route that seeks to close this off not just in the Bill—in primary legislation—but in secondary legislation too, we need clarity on this before we go much further.

As I said, I will write to noble Lords on this point, noting that I know they want to work constructively on the Bill. I have a few more points to cover, so if I could continue without interruption, I will reply to anybody in writing if we need to.

On Amendment 25 in the name of the noble Lord, Lord Parkinson, I understand that delegated decisions of such importance as the scope of regulation should be made only after proper consideration and in consultation with all key stakeholders. This is exactly what has been done over several years of development of the Bill. It was carried out by the previous Government, in which, as has been noted, the noble Lord served, although I accept that we are bringing forward this legislation, so it is the Labour Government’s Bill now.

The initial intended scope of the Bill is built on a strong evidence base and extensive consultation with the industry, including a White Paper. Therefore, the Government do not feel it is necessary to require additional consultation before the first regulations are specified in scope in secondary regulation. This would impose unnecessary burdens on the industry and the Government and risk significantly delaying the regulator being able to implement its regime.

On the question that Clause 2 stand part of the Bill, I thank the noble Lord, Lord Moynihan, for giving notice of his intention to oppose this. As is standard procedure, the Bill sets out the key definitions used in this legislation. These are required to ensure that there is legal clarity throughout the Bill and to prevent confusion when looking to practically implement this legislation.

It also gives the Secretary of State the power, through a statutory instrument, to specify competitions. These specified competitions will then define which clubs and competition organisers are in scope of regulation. Before making any changes to specified competitions, the Secretary of State must carry out an assessment of whether it would be appropriate to do so. In doing so, the Secretary of State must consult the regulator, the FA and any other stakeholders that the Secretary of State considers relevant. A report of the assessment must also be laid before Parliament.

I understand that other noble Lords, as well as the Delegated Powers and Regulatory Reform Committee, have raised concerns over the power to specify competitions. In relation to this question of secondary powers, the Government hugely respect the concerns of the committee and noble Lords. We completely recognise the importance of clarity and certainty for the industry. The football industry is unique in that the definition of the market and the scope of regulation are not straightforward. This is why the regulated population must be defined by reference to the leagues in scope, which are subject to change.

If there is a change in the market, as there was in 1992, the regime will need to be able to adjust so that the scope of the regime remains relevant. In such a scenario, failing to amend the scope in a timely fashion could result in the legislation becoming ineffectual and the regulator being undermined.

I will be happy to discuss these matters further—even in person—throughout the Committee stage and future debates. However, for the reasons that I have set out, I am unable to accept these amendments and hope that Amendment 18 will be withdrawn. I beg to move that Clause 2 stand part of the Bill.

My Lords, in thanking the Minister for her response to these points, I am more convinced than ever that having a probing amendment that Clause 2 should not stand part of the Bill has been borne out by the exchanges that we have had this evening.

First, there are clearly too many powers that have gone into secondary legislation and those powers delegated to the Secretary of State now have a completely different light on them. The question of hybridity is absolutely relevant. If we do not know what we are talking about within the Bill because it is potentially hybrid, and we cannot put on the face of the Bill the government plan —which, incidentally, was the same as the previous government plan—to enshrine the top five leagues of the men’s game in legislation, then we have a serious problem.

My concern is amplified by the fact that the Delegated Powers and Regulatory Reform Committee was clearly unaware of the exchanges that have taken place this evening or, indeed, of any briefing that could have been given to the committee by the Government; it clearly did not happen. So it is not surprising that in its report it stated:

“It is not clear why a monopoly granted by secondary legislation would be less significant than one granted by primary legislation”.

The answer to that is quite clearly one of hybridity.

Therefore, in not pushing my amendment this evening, I nevertheless request that the Government write not only to members of this Committee but to the Delegated Powers and Regulatory Reform Committee, setting out in some detail their response to the exchanges that have taken place this evening, so that these issues can be addressed with clarity. Frankly, it is not surprising that, without that clarity, the committee commented:

“The argument that something should not be fixed in primary legislation because it might need changing in future would be an argument against having any primary legislation”.

The committee does not make comments such as that flippantly but it would make them in the absence of a full understanding of the reasons behind the Government’s position as to why they have not put the top five leagues from the men’s game in legislation. That applies to Amendment 19 as well as Amendment 21.

I very much hope that in my not pressing Amendment 18, the Government will take it away and give due consideration to what has been said this evening and write to the Delegated Powers and Regulatory Reform Committee with an updated view. I beg leave to withdraw my amendment.

Amendment 18 withdrawn.

I call Amendment 19 in the name of the noble Lord, Lord Parkinson of Whitley Bay.

My Lords, I am not willing to not move Amendment 19 yet. Given that the House is about to resume and be adjourned, it might be more helpful to degroup it and leave it as the first amendment that we return to when the Committee resumes. I appreciate that this is unusual, but I do it to try to be helpful. If the Minister can write on the points about hybridity, which she has kindly undertaken to do, then this is the point at which the Committee will resume when next it meets, so that we can return to this fundamental point. So I am not willing to not move Amendment 19 and I suggest we resume the House now.

House resumed.

House adjourned at 10.21 pm.