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Earl Russell: I think I owe an apology to several people for raising what is properly a matter for the privileges of another place. But I do so at the request of my honourable friend, Mr Kirkwood. As a result of the operation of the guillotine in another place, this clause was never debated there.

The purpose of the clause is to make easier the authorisation of preliminary expenditure for a purpose which may be in the pipeline for the future. On such matters as IT preparation, a great deal of expenditure arises early on, before the legislation is tabled.

Some noble Lords may remember the paving Bill for theworking families' tax credit, which contained one of the most colossal Henry VIII clauses that I have ever seen. I understand the need for this kind of thing, but there is a real problem here. Without preliminary expenditure, a large number of policy changes cannot even be contemplated. So I understand why the Government want to be able to proceed by statutory instrument rather than needing an Act of Parliament to authorise each particular piece of expenditure.

However, the principle which is here--I shall not say breached, but possibly weakened--is one of very great importance historically and in another place it is guarded very jealously indeed. I understand that a certain amount of concern has been raised among fairly senior figures in another place about the possible effect of the clause. They would like the matter raised here in order that something can be written into the record about it.

I should like to know what safeguards will be in the way of this exercise of power. Under what circumstances is it likely to be exercised? What are the limits on the vires? What scrutiny will there be of the decision to table statutory instruments to authorise such preliminary expenditure? In particular, will it be possible for a Select Committee in another place--and several Select Committees are interested in the matter--to examine the statutory instrument in draft before it is tabled.

The principle of parliamentary control of expenditure and the principle of the efficient conduct of business are both important. If we can find, through the working of

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this clause, a way of reconciling them, that, I hope, will be for the good of all parties. I oppose the Question that Clause 77 shall stand part of the Bill.

Baroness Hollis of Heigham: This clause creates a power to incur expenditure on work undertaken in preparation for changes to the social security system.

Without the clause, expenditure could not be incurred on much of the work needed to prepare for a change in social security until after Royal Assent for the substantive legislation introducing the change. As the social security system is large, complex and increasingly dependent on computers--heaven help us--there are long lead in times for making changes. Having to wait for Royal Assent, therefore, means that much needed welfare reform is delayed or implementation is rushed with resulting higher costs and possible loss of quality.

So the clause is intended to give a specific and time-limited power to incur expenditure on making preparations for future change of the social security system. The power covers two types of preparatory work: first, work in support of changes arising from decisions on social security policy, such as the introduction of a new benefit or for major changes to existing policies which will require primary legislation; and, secondly, work in support of changes to the social security system needed as a consequence of other government policies. For example, as the Prime Minister made clear in his statement on 23rd February, the power could be used to allow work in preparation for the country joining the European Monetary Union. I was pressed on that question in your Lordships' House. I said that unless one spent the money in advance there would be no choice for people to make in a possible referendum. If we wish to have the option of joining, we must prepare for it and the scale and complexity of the DSS computer systems make advance preparation critical. At the time I believe I had the support of the noble Earl and his colleagues.

There would be firm additional parliamentary controls on this expenditure. They are set out in the clause itself and are additional to the normal processes of estimates and supply. First, only preparatory work could be subject to this procedure. Substantive expenditure on the new service--for example, payments of a new benefit--could not be approved in this way. Secondly, a report detailing the nature and amount of intended expenditure would need to be laid in the House of Commons before expenditure could be approved. Thirdly, that approval would have to be by affirmative resolution. Fourthly, any such approval would be limited to a time period of two years. There is no question of indefinite and continuing expenditure.

In addition to those provisions on the face of the Bill, my honourable friend the Minister of State, Mr Timms, assured the chairman of the Social Security Select Committee--the noble Earl's honourable friend Mr Kirkwood--and the chairman of the Public Accounts Committee, at col. 1338 of Hansard for 20th May 1999, that arrangements could be made so that in normal circumstances those committees could examine the report before the House of Commons takes a decision.

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I was pressed on that point by the noble Earl. The mechanism for it will be further discussed with the Select Committees concerned.

The Committee may wonder why there is no role for this Chamber in these parliamentary controls. It is because, as the noble Earl, Lord Russell, acknowledged, it is purely financial and is therefore subject to Commons privilege. However, the House of Lords will have its usual role in commenting upon and influencing the substantive legislation as it passes through the parliamentary process. There may well be other opportunities to discuss the underlying policy.

I hope that in the light of the assurances I have been able to give the noble Earl, he will feel that the concerns of his honourable friends in the other place have been addressed.

Earl Russell: I am grateful to the Minister for that reply. I understand the force of all the points she makes. I conceded from the outset that the clause meets a real need. I am satisfied by the safeguards which she offers which are carefully thought out and well considered.

I have a slight uneasy sense that people in the past have conceded such things for good reasons and with good safeguards. They have found that they have got on the slope which leads on downhill. But if that happens, I am fully satisfied it will not be by any intention of this Government who, I believe, have done their best. I am grateful for the assurance about the Select Committees. I only hope that the normal circumstances will be normal. So do we all. I withdraw my opposition to Clause 77.

Clause 77 agreed to.

11.15 p.m.

Clause 78 [Regulations and orders]:

Baroness Hollis of Heigham moved Amendment No. 143B:


Page 83, line 22, at end insert--
("( ) A statutory instrument containing an order under section 23(3) shall be subject to annulment in pursuance of a resolution of either House of Parliament.")

On Question, amendment agreed to.

Clause 78, as amended, agreed to.

Clause 79 agreed to.

Schedule 12 [Consequential amendments]:

Baroness Hollis of Heigham moved Amendments Nos. 144 to 152:


Page 142, leave out lines 14 to 16
Page 142, line 27, leave out from beginning to ("and") in line 30 and insert--
("(a) make any one or more of the orders which it could make under Part II of the 1973 Act if a decree of divorce, a decree of nullity of marriage or a decree of judicial separation in respect of the marriage had been granted in England and Wales, that is to say--
(i) any order mentioned in section 23(1) of the 1973 Act (financial provision orders);
(ii) any order mentioned in section 24(1) of that Act (property adjustment orders);")

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Page 142, line 37, leave out ("24C(5) and (6)") and insert ("24B(3) to (5)")
Page 142, line 38, at end insert ("and nullity);")
Page 142, leave out lines 39 and 40
Page 142, line 41, leave out ("section 24F") and insert ("section 24C")
Page 142, line 42, leave out ("section 24G") and insert ("section 24D")
Page 142, line 42, at end insert (", and
(c) at the end there is inserted--
"(l) section 40A (appeals relating to pension sharing orders which have taken effect)."").
Page 151, line 19, at end insert--
("Family Law Act 1996 (c. 27)

62A. The Family Law Act 1996 has effect subject to the following amendments.
62B.--(1) Schedule 2 is amended as follows.
(2) In paragraph 2, for "section 21" there is substituted "sections 21 and 21A".
(3) In the section set out in that paragraph, for the sidenote there is substituted "Financial provision orders, property adjustment orders and pension sharing orders."
(4) In that section, in paragraphs (c) and (d) of subsection (2), there is inserted at the end ", other than one in the form of a pension arrangement (within the meaning of section 25D below)".
(5) In that section, after subsection (2) there is inserted--
"(3) For the purposes of this Act, a pension sharing order is an order which--
(a) provides that one party's--
(i) shareable rights under a specified pension arrangement, or
(ii) shareable state scheme rights,
be subject to pension sharing for the benefit of the other party, and
(b) specifies the percentage value to be transferred."
(6) In that section, subsections (3), (4) and (5) become (4), (5) and (6).
(7) In that section, after subsection (6) (new numbering) there is inserted--
"(7) In subsection (3)--
(a) the reference to shareable rights under a pension arrangement is to rights in relation to which pension sharing is available under Chapter I of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation, and
(b) the reference to shareable state scheme rights is to rights in relation to which pension sharing is available under Chapter II of Part IV of the Welfare Reform and Pensions Act 1999, or under corresponding Northern Ireland legislation."
(8) In that section, subsection (6) becomes subsection (8).
(9) After paragraph 6 there is inserted--
"Pension sharing orders: divorce and nullity
6A. For section 24B substitute--
"Pension sharing orders: divorce
24B.--(1) On an application made under this section, the court may at the appropriate time make one or more pension sharing orders.

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(2) The "appropriate time" is any time--
(a) after a statement of marital breakdown has been received by the court and before any application for a divorce order or for a separation order is made to the court by reference to that statement;
(b) when an application for a divorce order has been made under section 3 of the 1996 Act and has not been withdrawn;
(c) when an application for a divorce order has been made under section 4 of the 1996 Act and has not been withdrawn;
(d) after a divorce order has been made.
(3) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit.
(4) This section is to be read subject to any restrictions imposed by this Act and to section 19 of the 1996 Act.
Restrictions affecting section 24B.
24BA.--(1) No pension sharing order may be made under section 24B above so as to take effect before the making of a divorce order in relation to the marriage.
(2) The court may not make a pension sharing order under section 24B above at any time while the period for reflection and consideration is interrupted under section 7(8) of the 1996 Act.
(3) No pension sharing order may be made under section 24B above by virtue of a statement of marital breakdown if, by virtue of section 5(3) or 7(9) of the 1996 Act (lapse of divorce process), it has ceased to be possible--
(a) for an application to be made by reference to that statement; or
(b) for an order to be made on such an application.
(4) No pension sharing order may be made under section 24B above after a divorce order has been made, except--
(a) in response to an application made before the divorce order was made; or
(b) on a subsequent application made with the leave of the court.
(5) A pension sharing order under section 24B above may not be made in relation to a pension arrangement which--
(a) is the subject of a pension sharing order in relation to the marriage, or
(b) has been the subject of pension sharing between the parties to the marriage.
(6) A pension sharing order under section 24B above may not be made in relation to shareable state scheme rights if--
(a) such rights are the subject of a pension sharing order in relation to the marriage, or
(b) such rights have been the subject of pension sharing between the parties to the marriage.
(7) A pension sharing order under section 24B above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement.
(8) In this section, "period for reflection and consideration" means the period fixed by section 7 of the 1996 Act.

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Pension sharing orders: nullity of marriage.
24BB.--(1) On or after granting a decree of nullity of marriage (whether before or after the decree is made absolute), the court may, on an application made under this section, make one or more pension sharing orders in relation to the marriage.
(2) The court shall exercise its powers under this section, so far as is practicable, by making on one occasion all such provision as can be made by way of one or more pension sharing orders in relation to the marriage as it thinks fit.
(3) Where a pension sharing order is made under this section on or after the granting of a decree of nullity of marriage, the order is not to take effect unless the decree has been made absolute.
(4) This section is to be read subject to any restrictions imposed by this Act.
Restrictions affecting section 24BB.
24BC.--(1) A pension sharing order under section 24BB above may not be made in relation to a pension arrangement which--
(a) is the subject of a pension sharing order in relation to the marriage, or
(b) has been the subject of pension sharing between the parties to the marriage.
(2) A pension sharing order under section 24BB above may not be made in relation to shareable state scheme rights if--
(a) such rights are the subject of a pension sharing order in relation to the marriage, or
(b) such rights have been the subject of pension sharing between the parties to the marriage.
(3) A pension sharing order under section 24BB above may not be made in relation to the rights of a person under a pension arrangement if there is in force a requirement imposed by virtue of section 25B or 25C below which relates to benefits or future benefits to which he is entitled under the pension arrangement."
62C.--(1) Schedule 8 is amended as follows.
(2) In paragraph 9--
(a) in sub-paragraph (2)--
(i) for "or 24A" there is substituted ", 24A or 24B", and
(ii) for "to 24A" there is substituted "to 24BB", and
(b) in sub-paragraph (3), after paragraph (a) there is inserted--
"(aa) for "or 24B" substitute ", 24B or 24BB";".
(3) In paragraph 10, in sub-paragraph (2), for "24A" there is substituted "24BB".
(4) For paragraph 11 there is substituted--
"11. In each of sections 25B(3) and 25C(1) and (3), for "section 23" substitute "section 22A or 23".
11A. In section 25D--
(a) in each of subsections (1)(a), (2)(a) and (ab) and (2C)(c)(i), for "section 23" substitute "section 22A or 23", and
(b) in subsection (3), in the definition of "shareable state scheme rights", for "section 21A(1)" substitute "section 21(3)"."

20 Jul 1999 : Column 948


(5) In paragraph 16, in sub-paragraph (2), at the end there is inserted--
"(f) after paragraph (f) there is inserted--
"(fa) a pension sharing order under section 24B which is made at a time when no divorce order has been made, and no separation order is in force, in relation to the marriage;"
(g) in paragraph (g), for "24B" substitute "24BB"."
(6) In that paragraph, after sub-paragraph (3) there is inserted--
"(3A) In subsection (4A), after "paragraph" insert "(de), (ea), (fa) or"."
(7) In that paragraph, in sub-paragraph (4), for the words from "subsection (4)" to the end of the first of the inserted subsections there is substituted "subsection (4A) insert-", the second of the inserted subsections is renumbered "(4AA)" and after that subsection there is inserted--
"(4AB) No variation of a pension sharing order under section 24B above shall be made so as to take effect before the making of a divorce order in relation to the marriage."
(8) In that paragraph, after sub-paragraph (4) there is inserted--
"(4A) In subsection (4B), after "order" insert "under section 24BB above"."
(9) In that paragraph, after sub-paragraph (7) there is inserted--
"(8) After subsection (7F) insert--
"(7FA) Section 24B(3) above applies where the court makes a pension sharing order under subsection (7B) above as it applies where the court makes such an order under section 24B above."
(9) In subsection (7G)--
(a) for "Subsections (3) to (5) of section 24B" substitute "Section 24BA(5) to (7)", and
(b) for "that section" substitute "section 24B above"."
(10) After that paragraph there is inserted--
"16A. After section 31A insert--
"Discharge of pension sharing orders on making of separation order.
31B. Where, after the making of a pension sharing order under section 24B above in relation to a marriage, a separation order is made in relation to the marriage, the pension sharing order is discharged.""
(11) In paragraph 19, in sub-paragraph (3)--
(a) after "24A" there is inserted ", 24B", and
(b) after "property adjustment order," there is inserted "any pension sharing order,".
(12) In paragraph 21--
(a) after "24,", in the first place, there is inserted "24B,", and
(b) for "24,", in the second place, there is substituted "24BB,".
(13) After paragraph 25 there is inserted--
"25A. In section 52(2)(aa), for "section 21A" substitute "section 21"."
(14) In paragraph 32, in sub-paragraph (2), for the words from "the words" to the end there is substituted "paragraph (a) substitute--
"(a) make one or more orders each of which would, within the meaning of Part II of the 1973 Act, be a financial provision order in favour of a party to the marriage or a child of the family or a property adjustment order in relation to the marriage,".
(15) In that paragraph, in sub-paragraph (3), for "21(a)" there is substituted "21(1)(a)".

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(16) In that paragraph, after sub-paragraph (3) there is inserted--
"(3A) For section 21(1)(ba) substitute--
"(ba) sections 24BA(5) to (7) (provisions about pension sharing orders in relation to divorce);
(baa) section 24BC(1) to (3) (provisions about pension sharing orders in relation to nullity);".
(3B) In section 21(3), for "section 23" substitute "section 22A or 23."").

On Question, amendments agreed to.


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