Clause 5 - Supplementary provision about regulations under sections 2 and 3

Childcare Bill [Lords] – in a Public Bill Committee at 2:00 pm on 10 December 2015.

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Photo of Sam Gyimah Sam Gyimah The Parliamentary Under-Secretary of State for Education 2:00, 10 December 2015

I beg to move amendment 5, in clause 5, page 5, line 30, leave out subsection (4) and insert—

“(4) A statutory instrument containing (whether alone or with other provision) regulations mentioned in subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) The regulations referred to in subsection (4) are—

(a) the first regulations made under section 2;

(b) the first regulations made under section 3(1);

(c) any regulations under section 3(7);

(d) any other regulations that amend or repeal provision made by an Act.

(6) Any other statutory instrument containing regulations is subject to annulment in pursuance of a resolution of either House of Parliament.”

This amendment removes the provision which subjects all regulations made under clauses 2 and 3 of the Bill to the affirmative procedure on every occasion they are made. Regulations made under clauses 2 and 3(1) would instead be subject to the affirmative procedure the first time they are made, and the negative procedure thereafter

It is a pleasure to serve under your chairmanship once again, Mr Hanson. As currently drafted, clause 5 provides for all the regulations under clauses 2 and 3 of the Bill to be subject to the affirmative procedure every time the regulation-making power is exercised. That is as a result of an amendment made in the other place, and it provides a level of parliamentary scrutiny beyond the original intention behind the Bill.

We are in complete agreement with the intention behind the amendment made in the other place, and the Government welcome the opportunity for both Houses to have proper prior scrutiny before the regulations can be approved and added to the statute book. However, we do not believe it necessary or reasonable to make the regulations affirmative every time. That is why amendment 5 will allow the regulations to be debated the first time the powers are exercised, while subsequent changes will be subject to the negative resolution procedure.

The exception to that will be any instances where regulations seek to amend or repeal primary legislation, or in the case of regulations seeking to update the  maximum level of any financial penalty set out on the face of the Bill. Any regulation made for those reasons will continue to be subject to the affirmative procedure and must be approved by Parliament each time the powers are exercised.

I will set out why we do not believe it necessary for the regulations to be subject to the affirmative procedure each time they are made. First, since we introduced the Bill over the summer, we have provided much more detail about how the Government intend to deliver their manifesto pledge and who will be eligible. That includes a recent policy statement and further details about eligibility as a result of the spending review announcement on 25 November. That additional information provides further clarity about what will be included in the regulations and addresses many of the concerns raised previously.

Secondly, we are committed to undertaking a formal public consultation on the draft regulations in 2016. Feedback from parents and providers will be taken into consideration as we develop the regulations, which will be revised as necessary in response to the consultation before they are laid before Parliament.

Thirdly, our proposal to make the regulations subject to the negative procedure reflects the precedent of parliamentary scrutiny adopted for comparable childcare and education legislation. We believe it is important to maintain the arrangements for approval used for the existing entitlement, which has been subject to the negative procedure since it was introduced in 2008.

The affirmative approval process requires the full involvement of both Houses and for time to be found for debates in both Houses, no matter how small the change. The Government being required to timetable a debate in both Houses when details need to be amended in regulations is likely to have a detrimental impact on the successful delivery of the new entitlement. We want the Secretary of State to be able to respond efficiently and effectively where it may be necessary to support local authorities, providers, parents and their children without seeking and receiving the approval of Parliament to do so.

Once the fundamental principles have been agreed, we do not believe it would be a good use of the parliamentary timetable to make changes that would ordinarily be dealt with under the negative resolution procedure. For example, consequential changes were made to the current entitlement to reflect the introduction of the education, health and social care plans and the replacement of residence orders with child arrangement orders. Those types of changes, which are straightforward and not controversial, can be made under the negative resolution procedure.

If the regulations under the Bill were to be subject to the affirmative resolution procedure, which would be the case without my amendment, the types of consequential changes that I am talking about could not be made unless time was found for a debate in both Houses. We do not believe that that would be an appropriate use of the parliamentary timetable. I hope that I can reassure the Committee further by confirming that the Department will continue to consult on any material changes to the regulations under the negative resolution procedure, as it has done with the current entitlement. By the time they are laid, the regulations will have undergone a vast amount of scrutiny. We are confident that we  will deliver a set of regulations that fairly delivers on the Government’s manifesto pledge to support hard-working families.

Photo of Pat Glass Pat Glass Shadow Minister (Education)

Their lordships included this clause because they were concerned about the lack of detail in the Bill in relation to funding, workforce capacity, physical capacity, eligibility, accessibility and other areas. They were concerned that there would not be full and frank debate in relation to all those areas and that the regulations would simply be laid before Parliament—slipped out under the cover of darkness, as I think they said. However, the Minister has given assurances on that on Tuesday and today. He is an honourable man. I do not intend to detain the Committee on this matter. The Minister has given assurances for the first time that the regulations will get full debate in both Houses, and the negative procedure is normal practice in other areas, so I am happy with that.

Amendment 5 agreed to.

Clause 5, as amended, ordered to stand part of the Bill.

Clauses 6 and 7 ordered to stand part of the Bill.