Motion to Approve
My Lords, in moving this Motion I should clarify remarks I made during the debate on these regulations, which took place in Grand Committee on Monday, concerning their application to certain charitable incorporated organisations. Following the making and laying of these regulations, the Department for Digital, Culture, Media and Sport made the Charitable Incorporated Organisations (Insolvency and Dissolution) (Amendment) (No. 2) Regulations 2020, which disapplied Section A51 of the Insolvency Act 1986 in relation to charitable incorporated organisations. Section A51 was cited in the making of the SI before the House, which means that as a result of the DCMS regulations the provisions in this SI have not applied to charitable incorporated organisations since 13 August 2020. This does not affect the validity of the powers used to make these regulations; the powers applied to charitable incorporated organisations at the time this SI was made. Likewise, its application to charitable incorporated organisations until 13 August is not affected.
The legal effect of the DCMS SI is one of implied repeal of the provisions from that date onwards. So far as they apply to charitable incorporated organisations, a legal position, we think, is clear. The Department for Digital, Culture, Media and Sport has since indicated in a memorandum to the Joint Committee on Statutory Instruments its intention to bring forward legislation, at the next available opportunity, to correct the position to that reflected in the regulations before the House today.
My Lords, I am grateful to the Minister, but I cannot have been the only one in your Lordships’ House struggling to follow the information she gave to us. I was not 100% clear because she said that the “legal position, we think, is clear”. I do not know whether that means “We are not sure whether it is clear; we only think it is clear”, or whether those who debated this in Committee have been made aware of the information she has brought before your Lordships’ House today.
I have not fully understood the implications of everything she said—I do not know whether other noble Lords have. It may be that it has no material impact, but maybe it does. Before we agree this Motion today, I wonder whether she ought to consult those who were in that Committee so that everyone who debated the regulations is clear that there is no material difference, given the rather lengthy and complex explanation she has given today.
I am happy to respond to the noble Baroness’s points; this is, indeed, a complex matter. I am confident that the legislation we intend to bring forward at the earliest opportunity will clarify matters, but I will consult with the Members of the Grand Committee to make sure that everybody is clear about the impact of this change.
The Question is that the Motion in the name of the noble Baroness, Lady Stedman-Scott, be agreed to. As many—
My Lords, I think that the Minister has just said that, before agreeing it, she will take it back to Members to see if they are happy with it because there is some complication. That was the implication of what she said: she was not going to put it forward for a vote today until she had consulted people.
She is checking with the Clerk so I will keep talking for a second while she gets advice. However, I am still not clear. I thought she said she was agreeing to take it back and consult with Members who were on that Committee.
The Question is that the Motion in the name of the noble Baroness, Lady Stedman-Scott, be agreed to. As many as are of that opinion will say “Content”; to the contrary “Not content”.
The Contents have it.
My Lords, I will not necessarily push this to a vote at the moment, but I say to the Minister that the reason why she says it cannot be withdrawn is that it comes into force today. If she has not consulted Members of the Committee on something so complex before bringing a Motion to your Lordships’ House today, there is a serious issue here. Are these “made affirmative” regulations, which come into force whether we debate and agree them or not? I am not clear. I have to be honest that I am completely at a loss as to what is happening at the moment, but it seems that there is some question mark over the validity of this and whether it is correct. I may be wrong and everything may be in order. However, it was complex and I did not fully understand what she was putting forward today.
I advise that they are “made affirmative” and to be dealt with today. I can only reaffirm what I have said: it is a complex matter but I am confident that the legislation we intend to bring forward at the earliest opportunity will clarify matters.
If that is of sufficient clarity, I will ask the Question.