Select Committee on Delegated Powers and Deregulation Fourth Report


ANNEX

NUCLEAR EXPLOSIONS (PROHIBITION AND INSPECTIONS) BILL

Memorandum by the Foreign and Commonwealth Office

The purpose of the Bill is to make provision in the law of the United Kingdom to enable Her Majesty's Government to ratify the comprehensive Nuclear-Test-Ban Treaty of 1996. The Bill makes it an offence to carry out a nuclear weapon test explosion or any other nuclear explosion and makes provision to enable inspections to be carried out in the United Kingdom under the terms of the Treaty. The Explanatory and Financial Memorandum summarises the provisions of the Bill. Provision for delegated legislation is contained in the following:

Clause 2 (4)

This would make it possible to extend the application of Clause 1 to Acts done outside the United Kingdom by bodies incorporated under the law of any of the Channel Islands, the Isle of Man or any colony. Given the gravity of the offence created by clause 1, it may be desirable for the United Kingdom courts to have jurisdiction over them when committed anywhere outside the United Kingdom by bodies incorporated in United Kingdom dependent territories. It is considered appropriate for the matter to be dealt with by delegated legislation, since time is needed to consult the dependent territories, and the scope of any order in council would be limited by the terms of subsection (4). Given the restricted power, there is no need for the order to be subject to negative or affirmative procedures. A similar provision is to be found in section 3(2) of the Chemical Weapons Act 1996.

Clause 8 (8) and (9)

These provisions would enable the privileges and immunities accorded to the members of inspection teams and observers to be extended to the Director General and members of the staff of the Technical Secretariat established in accordance with the Treaty. Due to a drafting error, the protocol to the Treaty does not require that such persons have privileges and immunities when accompanying an inspection team. There may therefore be no power under the International Organisations Act 1968 to make an order in council to confer privileges and immunities on them for this purpose in the absence of further international agreement. The exercise of the power would be contingent on such privileges and immunities being in practice required. Since it is not clear whether such privileges and immunities will have to accorded, it is appropriate to provide for it to be done by delegated legislation. This would be effected by order of the Secretary of State subject to the affirmative procedure, and thus in line with the 1968 Act.

Clause 13

This enables modifications to be made to the Act to give effect to any amendment of the Treaty made in pursuance of its provisions. Article VII of the Treaty makes provision for amendments. Amendments are subject to the approval of an Amendment Conference by the positive vote of the majority of the states parties with no state party casting a negative vote. Once 50 approved an amendment enters into force in all states parties 30 days after those states parties which cast a positive vote at the conference have ratified the amendment. It is therefore important that the United Kingdom is in a position to ratify in good time, and this is most conveniently achieved by use of delegated legislation. The order of the Secretary of State would be subject to affirmative resolution procedure. But if the amendment is to parts I and III of the protocol or annexes 1 or 2, and is of an administrative or technical nature, Article VII (8) of the Treaty provides for an accelerated procedure. An order giving effect to such amendments would be subject to the negative procedure. Similar provisions are to found in section 36 of the Chemical Weapons Act 1996.






Clause 15 (3)

This would enable the Act, with suitable modifications, to be made part of the law of the Channel Islands, the Isle of Man, or any colony. Extension to the dependent territories will be necessary if compliance with the Treaty is to be secured in all territory under United Kingdom sovereignty. It is nevertheless the practice of the United Kingdom to consult the dependent territories individually before extending legislation to them, and this takes time. In common with similar provisions in many other Acts, the extension would be effected by an order in council not subject to parliamentary procedure, the power to extend being circumscribed by the provisions of the Act. A similar provision is to be found in section 39(3) of the Chemical Weapons Act 1996.

16 July 1997

EMPLOYMENT RIGHTS (DISPUTE RESOLUTION) BILL

Memorandum by the Department of Trade and Industry

Introduction

1.      This Memorandum on delegated powers in the Employment Rights (Dispute Resolution) 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 and Scope of the Employment Rights (Dispute Resolution) Bill

2.1    The purpose behind the Employment Rights (Dispute Resolution) Bill is to enable industrial tribunal procedures to be streamlined and to promote the use of alternative dispute resolution. In particular it amends the powers to make tribunal procedure regulations. It amends the constitution of industrial tribunals (for certain proceedings). It will enable ACAS to provide, fund and promote a scheme for the arbitration of unfair dismissal disputes, subject to the Secretary of State's approval.

It extends the role of conciliation officers to redundancy payment cases and encourages the use of existing internal appeal procedures.

2.2    The Bill amends the law relating to the resolution of individual employment rights disputes, most notably under the Industrial Tribunals Act 1996, the Employment Rights Act 1996 and the Trade Union and Labour Relations (Consolidation) Act 1992.

2.3    The Bill is in four parts. Part I, 'Employment Tribunals', amends the law relating to the composition of industrial tribunals and the power to make tribunal procedure regulations. It renames 'Industrial Tribunals' 'Employment Tribunals'. It also transfers the jurisdiction in cases about an employer's failure relating to political fund contributions from the County Court (or Sheriff Court in Scotland) to employment tribunals.

2.4    Part II, 'Other Methods of Dispute Resolution', enables ACAS to provide, fund and promote a scheme for the arbitration of unfair dismissal disputes subject to the Secretary of State's approval. It enables parties to gain access to the scheme via either a compromise agreement or agreement promoted by a conciliation officer. It also amends the law relating to compromise agreements and provides for an extension of the duties of the Conciliation Officers.

2.5    Part III, 'Awards of Compensation', contains a provision to encourage employers and employees to use internal appeals procedures. It also amends the law to remove the possibility of double recovery where compensation is awarded in respect of the same act under both the provisions of the Employment Rights Act 1996 relating to unfair dismissal and the Disability Discrimination Act 1995.

2.6    Part IV, 'Supplementary and General', makes provision for the Bill to be extended to Northern Ireland by an Order in Council under the Northern Ireland Act 1974. It specifies that the Bill's provisions will be commenced by commencement orders; details its short title and gives effect to the Schedules.

Proposals for Subordinate Legislation

3.1    This Bill currently contains 7 sets of powers to make delegated legislation. These are described in paragraph 5 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):

    - 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 updated within the basic structures and principles set out in the Bill, subject to Parliament's right to challenge and 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.

4.2    The Department took account of the existing structure of the industrial tribunals legislation under which the procedural regulations are made by secondary legislation.

Clause by Clause Analysis of Delegated Powers

5.1    Clause 2 - Determinations without a hearing or full hearing

5.1.1  Sections 7 to 15 of the Industrial Tribunals Act 1996 ('the 1996 Act') give the Secretary of State power to make tribunal procedure regulations determining the procedure of industrial tribunals. Tribunal procedure regulations are subject to annulment in pursuance of a resolution of either House of Parliament.

5.1.2  Clause 2 amends section 7 with the aim of streamlining certain tribunal procedures by allowing the Secretary of State to make additional procedural regulations. Specifically it will permit the tribunal procedure regulations to allow a tribunal to determine cases without a hearing, or a full hearing, in a limited number of additional circumstances. These are:

    - on written evidence alone where both parties have given their consent;

    - where the respondent has done nothing to defend the case;

    - where it appears that the tribunal does not have the power to grant the relief claimed or the applicant is not entitled to the relief he is claiming;

    - where the case is bound to be dismissed because of the decision of a superior court; or

    - the proceedings relate to a preliminary issue.

5.1.3  Clause 2(3D) also provides that the tribunal procedure regulations may permit a tribunal to require written answers from persons to questions posed by the tribunal.



5.2     Clause 3(5) - Hearings etc. by chairman alone

5.2.1   Section 4(6) of the Industrial Tribunals Act 1996 makes provision for the tribunal procedure regulations to provide that any act required or authorised by the regulations to be done by a tribunal may be done by the chairman alone. Under the Industrial Tribunal Rules of Procedure 1993 (rule 13(8)) made under this power, a chairman may do any act except hear an originating application (or do certain other acts which are to be done by a tribunal hearing an origination application, or review a decision of a tribunal). In practice it enables the regulations to allow chairmen to carry out a wide variety of preliminary functions, including pre hearing reviews, determinations as to whether a party is entitled to bring or contest the proceedings and other interlocutory matters.

5.2.2  Clause 3(5), inserts a new section 4(6A) to the 1996 Act, and will enable the tribunal procedure regulations to provide that the chairman may determine cases without a hearing or a full hearing under the procedures introduced by clause 2 of the Bill. It also makes clear that the tribunal procedure regulations may permit chairmen hearing and determining preliminary issues to hear evidence from witnesses, or where he is hearing and determining a preliminary issue in accordance with regulations under new section 7(3C)(b) without hearing evidence. The provision amends and recasts the power to provide that chairmen may deal with preliminary issues.

5.3     Clause 5 - Legal officers

5.3.1  Section 4(6) of the Industrial Tribunals Act 1996 is explained in paragraph 5.2.1 above.

5.3.2  Clause 5 amends section 4(6) to amend the Secretary of State's power to make tribunal procedure regulations. It will permit her to provide that 'legal officers' appointed to the industrial tribunals, may do what a chairman may do under the tribunal procedure regulations. Legal officers will be appointed by the Secretary of State under regulations made under Section 1(1) of the 1996 Act. The appointment of 'legal officers' will relieve tribunal chairmen from some of the interlocutory duties they currently carry out (for example granting postponements and extensions of time, making witness orders and disposing of cases being withdrawn). The scheme will be piloted in one or more tribunals before a decision is taken about introducing them more widely. The regulations will specify which duties the legal officers will undertake during the pilot and these will be determined after consultation with, among others, the two Presidents of the tribunals.

5.4    Clause 7 - ACAS arbitration scheme

5.4.1  Clause 7 gives the Secretary of State four new powers. It will enable her to make an order:

    (a) approving an ACAS arbitration scheme for cases of unfair dismissal;

    (b) approving revisions to such a scheme;

    (c) extending the jurisdiction such a scheme to cases other than unfair dismissal.

    (d) in England and Wales, applying the provisions of the Arbitration Act 1996 to the scheme.

The order will be subject to annulment in pursuance of a resolution of either House of Parliament.

5.4.2  Clause 7 will give ACAS the power to prepare an arbitration scheme. This scheme is intended to provide parties to unfair dismissal disputes with an alternative to tribunal proceedings which will be more informal, private, quicker and cheaper. Once this Bill has been enacted the Government is keen that the ACAS arbitration scheme should be prepared quickly and introduced with the minimum of delay. The provisions of the scheme are likely to involve much complex technical detail which the Department considers would be better covered in regulations approving the scheme. Using regulations will allow the detailed administrative arrangements to be set up and updated in line with the principles set out in the Bill. It will also ensure flexibility in responding to changing circumstances, and enable the Government to do so quickly in the light of experience without the need for primary legislation.



5.5    Clause 16(4) -Northern Ireland - Order in Council

5.5.1  The Bill applies to Great Britain only. Clause 16(4) provides that corresponding provisions for Northern Ireland may be made by an Order in Council under the Northern Ireland Act 1974 subject to annulment in pursuance of a resolution of either House of Parliament. The use of such an enabling order is standard practice in these circumstances.

5.6    Clause 17 - Commencement

5.6.1  Clause 17 provides for the provisions of the Bill to come into force on such days as the Secretary of State may appoint by order. The Clause also empowers the Secretary of State to make transitional provisions. These order making powers are required to provide the necessary flexibility in bringing the provisions of the Bill into force and to deal with any problems which may arise from the provisions coming into force on more than one date. In accordance with the general practice for "appointed day provisions", the order is not subject to any Parliamentary procedure.

5.7    Schedule 1, paragraph 24

5.7.1  Section 219 of the Employment Rights Act 1996 enables the making of regulations for preserving continuity of employment (where it would otherwise be broken) where a person who is dismissed and then reinstated or re-engaged in consequence of an action to which section 219(2) applies. In short it provides for continuity of employment to be preserved where a person is

re-employed in consequence of: the making of a complaint of unfair dismissal to an industrial tribunal; or a claim under a dismissal procedures agreement; or after action has been taken by a conciliation officer; or a compromise agreement has been entered into.

5.7.2  The Schedule amends section 219 so that the regulations can preserve continuity of employment where a person is re-employed in a wider range of circumstances. This is being done primarily to provide that continuity of employment is preserved where a person is re-employed following on from arbitration under the new ACAS scheme.

July 1997

MAGISTRATES' COURTS (PROCEDURE) BILL

Memorandum by the Lord Chancellor's Department

Introduction

This Memorandum describes the delegated legislative powers contained in the above Bill, which was introduced in the House of Lords by the Lord Chancellor on Thursday 10 July 1997.

Background

The Magistrates' Courts (Procedure) Bill amends the procedure for dealing with certain minor summary offences (mainly motoring offences) in the magistrates' courts, with particular reference to the procedure for pleading guilty by post.

Clause 1 extends the range of evidence admissible before the court in guilty by post pleas, to include written witness statements in addition to or as an alternative to the existing requirement (of a statement of facts prepared by the police). Clause 2 removes the existing requirement on the court, in summary cases, to serve notice on a defendant of the court's intention to take previous endorsements on their licence into account when sentencing. Clause 3 simply updates a number of references in the existing legislation.

Clause 4 contains a standard commencement provision, under which the separate provisions of the Bill will be brought into force by Statutory Instrument not subject to Parliamentary procedure. This will enable changes in subordinate legislation - for example the revision of certain prescribed forms sent to a defendant with the summons - to be effected before implementation of the Bill.

There are no other delegated legislative powers in this Bill.

14 July 1997


 
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Prepared 24 July 1997