Select Committee on Delegated Powers and Deregulation Twentieth Report


TWENTIETH REPORT

BY THE SELECT COMMITTEE APPOINTED TO REPORT WHETHER THE PROVISIONS OF ANY BILL INAPPROPRIATELY DELEGATE LEGISLATIVE POWER, OR WHETHER THEY SUBJECT THE EXERCISE OF LEGISLATIVE POWER TO AN INAPPROPRIATE DEGREE OF PARLIAMENTARY SCRUTINY; TO REPORT ON DOCUMENTS LAID BEFORE PARLIAMENT UNDER SECTION 3(3) OF THE DEREGULATION AND CONTRACTING OUT ACT 1994 AND ON DRAFT ORDERS LAID UNDER SECTION 1(4) OF THAT ACT; AND TO PERFORM, IN RESPECT OF SUCH DOCUMENTS AND ORDERS, THE FUNCTIONS PERFORMED IN RESPECT OF OTHER INSTRUMENTS BY THE JOINT COMMITTEE ON STATUTORY INSTRUMENTS.

REGIONAL DEVELOPMENT AGENCIES BILL

Introduction

  1.  This Bill divides England into nine regions and provides for the establishment of a regional development agency for each region. It is a necessary part of the scheme of the Bill that some administrative powers of ministers should be delegated to these agencies.

  2.  Clause 6 allows a minister to delegate to the agencies any of his functions provided that they are appropriate for the agency and do not consist of a power to make subordinate legislation or to set fees or charges. There is no Parliamentary control over the delegation of these administrative powers. Because the powers are administrative it is for the House as a whole to decide whether ministers should be able to delegate them; if so, clearly they cannot be subject to further Parliamentary control. The Bill appropriately sets out a framework within which the powers delegated to agencies can be exercised, and for this purpose gives powers to ministers—such as those in clauses 6(1) "delegate", 7(2) "guidance and directions", clause 8 "directions", clause 9(1) "determine".

Legislative powers

  3.  The delegated legislative powers in the Bill can be essentially described as properly supplementary to the primary powers which it confers. Policy issues are left to ministers to determine by administrative action. The Department's memorandum provides an account of the powers and the Committee found it necessary to comment on only a few of them in this report.

  4.  Clause 11(6)(b) allows the Secretary of State to increase the borrowing limit of the new agencies. Orders have to be approved in draft by the Commons. This is the appropriate form of control.

  5.  Clause 19(1) allows the Secretary of State to make orders transferring land from a local authority or other public body to a new agency. Affirmative procedure is applied by subsection (9).

  6.  Clause 25(1) allows the Secretary of State to make by order alterations in the extent of the regions in Schedule 1 (but not so as to alter the number of regions). This is, in effect, a Henry VIII power but it is limited and is subject to a consultation process which can (but need not) include a public inquiry. Negative procedure is provided by subsection (7). In the view of the Committee, the rest of the Bill is meticulously drafted to provide for the use of the affirmative procedure where this is appropriate. It is hard to see, given the controversial nature of the subject matter of Clause 25(1), why this power is not also made subject to the affirmative procedure.

  7.  There are Henry VIII powers in clauses 35(6) and 37(6). The memorandum does not explain why these powers are needed but the process of transferring to the new agencies the functions of the Development Commission and the Urban Regeneration Agency could well require amendments to be made to legislation affecting the Commission or Agency.

  8.  Schedule 6 contains long and complex provisions supplementing those in the bill concerning the vesting of land in new agencies. Paragraph 3 contains a regulation making power (subject to negative procedure) concerned with the use of consecrated land and burial grounds. Paragraph 12 allows a minister to make an order extending or modifying the powers and duties of a statutory undertaker in order to facilitate the transfer of land provisions of the bill. Such an order is subject to special parliamentary procedure (paragraph 13(2)), which the Committee considers appropriate. The other powers in Schedule 6 to make orders (eg paragraph 6(1)) are not powers of a legislative kind.

Recommendation

  9.  The Committee wishes to draw the attention of the House to the case for increasing the parliamentary control provided for the power in Clause 25(1) relating to changes to the areas of the regions. There is nothing else in the Bill which the Committee wishes to draw to the attention of the House.

POLICE NORTHERN IRELAND BILL

Introduction

  10.  This Bill will give effect in Northern Ireland to certain proposals for police reform which were set out in the Labour Party consultation paper "Policing in Northern Ireland—A Service for all People". The Bill also consolidates Northern Ireland policing legislation and provides for a Police Ombudsman to replace the Independent Commission for Police Complaints. The Bill in effect replaces existing legislation about the constitution and management of the police in Northern Ireland and makes significant changes to the existing arrangements. There are a number of delegated powers; as the explanatory memorandum makes clear, most of these follow precedents in earlier legislation for Northern Ireland or England and Wales and raise no new issues for the Committee to draw to the attention of the House.

  11.  With the exception of the customary commencement provision (clause 75), all powers are subject to negative procedure (by virtue of clause 72). This is the procedure which applies at present to those powers which the Bill replicates. The Committee considers that this procedure provides an appropriate degree of parliamentary control in each instance.

Delegated Powers

  12.  The Northern Ireland Office's memorandum lists the powers, which appear in Clauses 4, 25, 26, 28, 33, 40, 64, 72, 75 and Schedule 1.

  13.  Clause 4 is a new regulation-making power through which the Secretary of State may transfer Civil Servants seconded to the Police Authority to the employ of the Authority. By subsection (5) the Secretary of State is required to consult the Police Authority, the Chief Constable and staff representation before making any such regulation.

  14.  Clauses 25 and 26 allow the Secretary of State to make regulations as to the government, administration and conditions of service of members of the Royal Ulster Constabulary (R.U.C.) and the R.U.C. reserve. There are similar powers in relation to the police in England and Wales. There is a requirement to consult before making regulations under either clause (see clauses 25(8) and 26(6)). Clause 28, which replicates section 28 of the Police Act (Northern Ireland) 1970, provides for the Secretary of State to make regulations to continue to maintain the R.U.C. fund.

  15.  Clause 56(2) allows the Secretary of State to apply with modifications any provision of the Police and Criminal Evidence (Northern Ireland) Order 1989 to investigations by persons who are not police officers and who are conducting an investigation on behalf of the Police Ombudsman for Northern Ireland.

  16.  Clause 64 is a new provision which allows the Secretary of State to make regulations as to the procedure to be followed under Part VII of the Bill (police complaints and disciplinary proceedings). There is a requirement to consult before making regulations (subsection (4)).

  17.  The Committee sees no need to draw any of these powers to the special attention of the House.

Henry VIII Power

  18.  Paragraph 2(2) of Schedule 1 is a new power which allows the Secretary of State to amend paragraph 2(1) to substitute different figures for the maximum and minimum number of members of the Police Authority. While this is a Henry VIII power it is very limited and the Committee considers that the negative procedure provided for is appropriate.

Drafting

  19.  We draw attention to one oddity in the Bill. Clause 64(2) requires the Secretary of State to include in the regulations a provision "that the Chief Constable shall have power to delegate any functions conferred on him by or by virtue of this Part". The Committee considers it unusual to require the Secretary of State to do something that Parliament could achieve directly by making the same words a substantive part of the Bill. The House may want to consider whether the same requirement should be written on the face of the Bill.

Recommendation

  20.  Having noted the Henry VIII power in paragraph 2(2) of Schedule 1 there is nothing else in the Bill which the Committee wishes to draw to the attention of the House.

BUILDING REGULATIONS (ENERGY RATING INFORMATION) (AMENDMENT) BILL [HL]

SEXUAL ORIENTATION DISCRIMINATION BILL [HL]

TAX CREDITS (INITIAL EXPENDITURE) BILL

  21.  There are no delegated legislative powers in these Bills.[1]


1   This report is also published on the Internet at the House of Lords Select Committees Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back


 
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