Select Committee on Delegated Powers and Deregulation First Report


ANNEX

  

NATIONAL HEALTH SERVICE (PRIVATE FINANCE) BILL [HL]

Memorandum by the Department of Health

1.  The Bill clarifies the powers of a National Health Service trust to enter into an agreement (an "externally financed development agreement") for the provision of facilities to the trust where the relevant finance is provided otherwise than by the trust. In particular, the purpose of the Bill is to remove any doubt about the power of an NHS trust to enter into contracts under the Private Finance Initiative.

2.  Clause 1 provides that the powers of a National Health Service trust include power to enter into agreements which are certified by the Secretary of State as externally financed development agreements and specifies the circumstances in which the Secretary of State may give a certificate to that effect. The clause confers no powers to make delegated legislation.

3.  Clause 2 provides that an Order in Council made under the Northern Ireland Act 1974 which contains a statements that it is made only for purposes corresponding to those of Clause 1 is exempted from the usual requirement for affirmative resolutions and is subject instead to the negative resolution procedure. This does not involve any delegation of powers. It simply provides for the way that the exercise of existing delegated powers is to be scrutinised by Parliament.

20 May 1997

  

SPECIAL IMMIGRATION APPEALS COMMISSION BILL [HL]

Memorandum by the Home Office

This memorandum deals with the delegated legislative powers contained in the Special Immigration Appeals Commission Bill, which was introduced in the House of Lords by Lord Williams of Mostyn on 20th May 1997.

Background

1.  The Bill, which extends throughout the United Kingdom, establishes the Special Immigration Appeals Commission, whose members are to be appointed by the Lord Chancellor to hear appeals against certain decisions to remove and exclude from the United Kingdom individuals whose presence here is not considered conducive to the public good. Under current legislation such persons do not have a right of appeal to a statutory tribunal, but some may have their cases reviewed by a non­statutory advisory panel. Most of the cases affected involve considerations of national security such that it is not possible for all the evidence to be given in public or revealed to the person affected.

Delegated Powers

2.  The Bill provides, in Clause 4, for the Lord Chancellor to make rules for regulating the rights of appeal conferred; for prescribing the practice and procedure to be followed; and for preliminary or incidental matters. The rules must provide for an appellant to be legally represented, but may make provision for him not to be given every particular of the case against him if there are security constraints. Where possible particulars will be given. The rules also provide proceedings to take place in a person's absence; for a person to be appointed to test evidence on his behalf; and for him to be given a summary of the evidence taken in his absence. In making rules the Lord Chancellor is to have regard to the need to secure that decisions which are the subject of appeals are properly reviewed; and that information is not disclosed contrary to the public interest.

3.  Clause 4(9) of the Bill provides that the Commission's procedural rules are to be subject to the affirmative resolution procedure. The normal practice is for procedural rules to be subject to the negative resolution procedure (see, for example, section 22(7) of the Immigration Act 1971). However in the present case, it was felt that, as the procedural rules will deal with matters of some significance both for the appellant and for the wider public interest, Parliament should be given a full opportunity to debate them.

4.  Clause 5(2) of the Bill contains the standard commencement provision under which the Bill will be brought into force by Statutory Instrument not subject to parliamentary procedure. Clause 5(3) provides for extensions to the Channel Islands or the Isle of Man by Order in Council, which is not subject to parliamentary procedure. This too is a standard provision.

4 June 1997

WIRELESS TELEGRAPHY BILL [HL]

Memorandum by the Department of Trade and Industry

Introduction

1.1  This Memorandum on delegated powers in the Wireless Telegraphy Bill has been prepared in accordance with the Government's undertaking to the Committee in section 2 of the Government Memorandum (January 1993) appended to the Committee's First Report (2 March 1993).

Outline & Scope of the Wireless Telegraphy Bill

2.1  The Wireless Telegraphy Bill amends the Wireless Telegraphy Act 1949 ("the 1949 Act") to change the basis for charging for licences under section 1 of that Act to install or use radio equipment. Fees are currently set by regulations by reference to the fully allocated costs of issuing licences. The Bill provides for fees, other than fees for licences for television reception, to be set by regulations having regard to various factors, or by auction. The Bill makes provision for licensees' security to be enhanced and for selective financial assistance to promote the efficient use or management of the radio spectrum.

Proposals for Subordinate Legislation

3.1  The Bill currently contains three sets of powers to make delegated legislation. These are described in paragraph 5 onwards. The Committee's attention is also drawn to a power in the Bill to include terms in licences granted under section 1 of the 1949 Act to disapply, or apply with modifications, regulations made under certain provisions of that Act. This is described in paragraph 6 below.

Classification of Subordinate Legislation

4.1   In deciding whether subordinate legislation was appropriate in any particular case, the Department had in mind the following criteria, based on those set out in paragraph 4.4 of the Government's evidence to the Committee (January 1993) as appended to the Committee's First Report:

    --   to avoid too much technical detail on the face of the legislation;

    --   to ensure flexibility in responding to changing circumstances, and provide a measure of ability to make changes quickly in the light of experience without the need for primary legislation;

    --   to allow detailed administrative arrangements to be set up and up-dated within the basic structures and principles set out in the Bill, subject to Parliament's right to challenge any inappropriate use of powers;

    --   to allow flexible timing to ensure that the drafting of technical details is right, affected parties can be consulted and changes to the details of legislation can be made in the light of changed circumstances.

Clause by Clause Analysis of Delegated Powers

5.1  Clause 1 - charges for wireless telegraphy licences

5.1.1   Clause 1 provides a general power for the Secretary of State to set fees by regulations or, to the extent that the regulations allow, to determine fees in particular cases, for the installation or use of radio equipment other than television receivers. The regulations may make different provision for different cases, provide for refunds and include transitional provisions. Any regulations under section 2(1) of the 1949 Act which relate to wireless telegraphy licences within the meaning of the Bill and are in force immediately before commencement of clause 1 are to be taken to have been made under the clause and accordingly may be amended or revoked by regulations made under the clause.

5.1.2   The power in clause 1 to set fees by regulations will replace the current powers of the Secretary of State in section 2(1) of the 1949 Act, except in respect of television licences. The Committee's attention is drawn to clause 7 and paragraph 1 of Schedule 1 to the Bill which amends section 2(1). Section 2(1) currently provides that licence fees may be prescribed by regulations to be made by the Secretary of State with the consent of the Treasury. The proviso to subsection (1) provides that the regulations made may contain provisions authorising, in such cases as are not otherwise dealt with by the regulations, the charge by the Secretary of State of such sums, whether on the issue or renewal of the licence or subsequently, as may in the particular case appear to him to be proper. Such provision, which is not to apply to licences of a type wholly or mainly intended to meet the needs of persons desiring to use, in a private dwelling-house and without making any charge to other persons, apparatus not designed or adapted for a emission (as oppose to reception)), is currently made in regulation 6 of the Wireless Telegraph (Licence Charges) Regulations 1995 (S.I. 1995 No. 1331).

5.1.3   The powers provided by clause 1 are required to provide sufficient flexibility for the Secretary of State to set fees with reference to the factors set out in clause 2 of the Bill. Such flexibility is required because licence classes cover a wide range of different applications and industries, including telecommunications, broadcasting, and telemetry and are relevant to a wide diversity of companies from BT to small taxi firms. In addition, wireless telegraphy is an area of rapidly changing technology which results in fundamental changes to the nature of existing services and the introduction of new applications for use of the radio spectrum. The regulations under clause 1 will need to be capable of reflecting this diversity and dynamism.

5.1.4   Clause 6(2) of the Bill provides that any statutory instrument containing regulations under the Bill are to be subject to the negative procedure. In view of the comments of the Joint Committee on Delegated Legislation (the Brooke Committee), as set out in Appendix III to the Committee's First Report, as to the criteria for selection of forms of Parliamentary control, the Department considers that the negative procedure is appropriate for regulations made under clause 1 of the Bill.

5.2  Clause 3 - Bidding for licences

5.2.1   Clause 3 enables licences to be auctioned on the basis of a procedure set out either in regulations made under the clause or in a notice issued under such regulations.

5.2.2   Subsection (1) of clause 3 provides that the Secretary of State may by regulations provide that, in such cases as may be specified in or determined by him under the regulations, applications for the grant of wireless telegraphy licences must be made in accordance with a procedure which is set out in a notice issued by him under the regulations and involves the making by the applicant of a bid specifying an amount which he is willing to pay to the Secretary of State in respect of the licence.

5.2.3   Subsection (2) of clause 3 provides for the regulations made under clause 3 to make certain provision with respect to the issue of notices by the Secretary of State for the purposes of subsection (1).

5.2.4   Subsection (3) of clause 3 provides that the Regulations under clause 3 may make provision with respect to the grant of licences to which they apply and the terms, provisions and limitations subject to which such licences are issued and may, in particular, provide for certain matters set out in paragraphs (a) to (g) of subsection (3). The Committee's attention is drawn to paragraph (h) of subsection (3) which provides that the regulations may enable such provision, including provision falling within any of paragraphs (a) to (g), to be made by the Secretary of State in a notice for the purposes of subsection (1).

5.2.5   The powers in clause 3 to make provision with respect to the procedures for holding auctions and terms of licences granted following such procedures by notices issued by the Secretary of State under regulations are intended to provide flexibility. Such flexibility is required in view of the need to issue different notices to reflect the different conditions and circumstances which will surround each auction. In particular, there will be auctions for different types of services and different designs of auction will be appropriate for different cases. The same comments made in paragraph 5.1.3 above with regard to the need for flexibility in the context of making regulations under clause 1 apply equally to the need for flexibility in making regulations and issuing notices under clause 3. In some cases the greater flexibility afforded by the ability to issue a notice will be needed to respond to changing circumstances, including changing commercial circumstances, up until the time when the notice is issued. In addition, flexibility will also be desirable in view of the possible time pressures which may arise prior to the conduct of an auction.

5.2.6   The same comments apply as apply in respect of clause 1 in paragraph 5.1.4 above as to why the negative procedure is appropriate for regulations made under clause 3 of the Bill.

5.3  Clause 9 - Extent

5.3.1   Subsection (2) of clause 9 provides that the provisions capable of being extended to the Isle of Man or any of the Channel Islands under section 20(3) of the Wireless Telegraphy Act 1949 include the provisions of the Bill amending the 1949 Act. Section 20(3) of the 1949 Act provides that Her Majesty may by Order in Council direct that all or any of the provisions of the 1949 Act shall extend to the Isle of Man or any of the Channel Islands with such adaptations and modifications, if any, as may be specified in the Order.

5.3.2   Subsection (3) of clause 9 provides that Her Majesty may by Order in Council direct that all or any of the other provisions of the Bill be extended to the Isle of Man or any of the Channel Islands with such adaptations and modifications, if any, as may be specified in the Order.

5.3.3   The power to make such an Order in Council is, in accordance with precedent, not subject to any Parliamentary procedure, since it does not affect the United Kingdom.

6.1  Clause 4 - Restriction on revocation or variation of licences

6.1.1   Clause 4 enables the Secretary of State to fetter his discretion in the revocation or variation of licences. The purpose is to enable greater certainty to be given to licensees, subject to requirements of national security, Community obligations or international agreements. Clause 4 will replace and extend section 3A of the Wireless Telegraphy Act 1949 which makes similar provision in relation to certain telecommunication services. Section 3A will be repealed by clause 7 of, and Schedule 2 to, the Bill.

6.1.2   Subsection 4 of clause 4 provides that a wireless telegraphy licence containing any terms included in the licence by virtue of subsection (1) may also provide that regulations made under section 3 of the Wireless Telegraphy Act 1949: (a) shall not apply in relation to any station or apparatus to which the licence relates, or (b) shall apply in relation to any such station or apparatus to such an extent only, or subject to such modifications, as may be specified in the licence.

6.1.3   Subsection (4) is in substantially the same form as section 3A(6) of the 1949 Act. It ensures that the security given to wireless telegraphy licences by virtue of the provisions of clause 4 is not jeopardised by any regulations made under section 3 of the 1949 Act. Such regulations may provide the licensee to have to close down his station on demand and might be used to circumvent any licence conditions providing security of tenure.

      Subsection (4) therefore makes it clear that licences may include a provision that section 3 shall either not apply or apply to a limited extend as specified in the licence itself.


June 1997


 
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