Select Committee on Delegated Powers and Deregulation Thirty-Second Report



THIRTY-SECOND REPORT

14 October 1998

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.

NORTHERN IRELAND BILL

Introduction

1.  This Bill implements the Belfast Agreement of 10 April 1998, set out in Command Paper 3883. The Northern Ireland Assembly which it establishes will have legislative powers. There is a parallel here to the Scotland Bill on which the Committee reported earlier this session:[1] like the Scottish Parliament, the Assembly will be able to pass Acts which confer delegated legislative powers and it will be for the Assembly to determine what controls to establish over the exercise of these powers. The Committee's task is to consider only those delegated legislative powers created by the Bill.

2.  The very helpful memorandum from the Northern Ireland Office, printed with this report, describes the delegated powers in the Bill and sets them in context. This report does not discuss all the powers but draws attention only to those which, in the Committee's judgment, raise issues for the House to consider.

Henry VIII powers

3.  There are Henry VIII powers in clauses 4(2), 30(6), 47(7) and 71.

4.  Clause 4(2) confers power to amend Schedule 3 which lists reserved matters (cf. Clause 29(2) of the Scotland Bill). The power is subject to affirmative procedure and requires the consent of the Assembly.

5.  Clause 30(6) allows the Secretary of State to substitute a different sum for that specified in the clause as the maximum security for costs which can be required of an applicant to a court for a declaration that a person is disqualified for membership of the Assembly. The memorandum explains that this is needed to take account of changes in the value of money. It is similar to the power in clause 17(5) of the Scotland Bill and, like that power, is subject to negative procedure.

6.  Clause 47(7) gives the Secretary of State, with the consent of the Treasury, power to increase the limit specified in the clause on advances to the Department of Finance and Personnel. Clause 78(4) provides that an order under this power shall not be made unless approved in draft by the House of Commons.

7.  Clause 71 enables provision to be made by Order in Council with respect to certain matters relating to Northern Ireland. The first of these is elections (but not the franchise). The second is reserved matters and in respect of these the clause, in effect, continues the present arrangements for legislating for Northern Ireland. The third is amending the law of another part of the United Kingdom to take account of changes in the law in Northern Ireland. Any exercise of the powers conferred by the clause can take the form of an amendment or repeal of Westminster legislation (this is the effect of subsection (3)) but the clause applies affirmative procedure (subsection (4)) subject, in the case of an order dealing with reserved matters, to the familiar emergency arrangements set out in subsections (5) to (7).

8.  The Committee accepts the case for conferring all these Henry VIII powers. With the exception of clause 30(6), all are subject to affirmative procedure. The Committee accepted that negative procedure was appropriate for Clause 17(5) of the Scotland Bill and Clause 30(6) cannot be distinguished from that precedent. In the case of each of the Henry VIII powers in the present Bill, therefore, the Committee considers that the Bill provides for the appropriate degree of parliamentary control.

Powers not subject to Parliamentary control

9.  Apart from the simple commencement power in clause 83(3) there are two powers which are not made subject to Parliamentary control (see also the comments below on clause 13).

10.  Clause 70 deals with proceedings in the Judicial Committee of the Privy Council under the Bill (see clause 10 and Schedule 11). Subsection (3) allows an Order in Council to confer power on the Judicial Committee; to apply the Judicial Committee Act 1833 with exceptions or modifications; and to make rules for regulating the procedure in relation to such proceedings. The equivalent provision in the Scotland Bill is clause 94(3) and it is surprising that the Northern Ireland Bill does not follow that precedent and attract negative procedure. The Memorandum[2] states that "consideration is being given as to whether or not [it] would be appropriate" to apply negative procedure. The Committee considers that negative procedure would be appropriate in this instance. The House may wish to consider amending the Bill accordingly.

11.  Similar considerations apply to paragraph 6(1) of Schedule 6. That Schedule is concerned with the Northern Ireland Assembly Commission established by clause 32. Paragraph 6(1) allows an Order in Council to provide for the Commission to be treated to any extent as a Crown body for the purpose of any enactment. The Memorandum[3] points out that the equivalent provision in the Scotland Bill (paragraph 7 of Schedule 2) is subject to negative procedure and that "Further consideration is therefore being given as to whether or not the Northern Ireland Bill should follow suit in this regard". Again, the Committee considers that negative procedure would be appropriate.

Other issues

12.  Clause 13 gives Westminster control over Assembly legislation unless that legislation is, in effect, confined to transferred matters (subsection (2)). Both Houses have normally to be given the opportunity to object to the legislation before it is submitted for Royal Assent but there is an "urgency" procedure in subsections (3) to (5). Under this, if in either House a motion praying that the Act of the Assembly shall cease to have effect is carried, an Order in Council may repeal that Act and may make consequential and transitional provisions. Since the Order implements the decision of Parliament it is appropriate that its terms are not subject to Parliamentary control.

13.  Clause 24(4) enables the Assembly to be dissolved and an election held when the Northern Ireland Ministers are not able to carry out their functions and there is no other way of securing an alternative "government". An Order in Council exercising this power is subject to affirmative procedure. The Memorandum (paragraph 36) states that "The policy in this area is under review however and the intention is to table amendments leaving the exercise of this power to the Assembly . . ."

14.  Clause 43 allows an Order in Council to prorogue the Assembly. An Order is subject to affirmative procedure if it would result in the Assembly being prorogued for more than four months. The Memorandum (paragraph 52) states that the Government "intends to table an amendment to delete this clause from the Bill as it is no longer considered necessary."

15.  The Memorandum (paragraph 62) states that it is proposed to replace clause 67. The new clause would still leave in place a power to make orders about implementation bodies and those orders could include provisions amending or repealing any Northern Ireland legislation. As Northern Ireland legislation (defined in clause 80(1)) does not include Acts of the Westminster Parliament, we do not consider this to be a Henry VIII power in the sense in which the term is used in our reports. In any event it is subject to affirmative procedure (clause 78(2)), which the Committee considers appropriate.

16.  Clause 73 is a complex clause dealing with an extremely complex problem - the co-ordination of arrangements about social security, child support and pensions in Northern Ireland and the rest of the United Kingdom. Subsection (3) confers a regulation-making power on the Secretary of State which is subject to negative procedure (in the Commons only as it is concerned with "money matters"). Subsection (4) confers a similar power on the Northern Ireland Minister which is subject to negative procedure in the Assembly. The Committee noted that both powers provide for "adapting legislation (including subordinate legislation) for the time being in force" in the relevant part of the United Kingdom. In the case of the Northern Ireland power this, so far as the Committee is aware, is the only power in the Bill which allows the Northern Ireland Minister to operate on Westminster legislation. In view of the technical and limited nature of the power, the Committee considers that negative procedure is appropriate.

Recommendation

17.  The Committee wishes to draw the attention of the House to the two instances (in clause 70(3) and paragraph 6(1) of Schedule 6) where the Bill provides for no Parliamentary control and in so doing departs from the precedents in the Scotland Bill. The House may wish to consider amending the Bill to provide for the negative procedure, as suggested in paragraphs 10 and 11 of this Report. There is nothing else in the Bill which the Committee wishes to draw to the attention of the House.


1  24th Report, HL Paper 124. Back
2  paragraph 73. Back
3  paragraph 96. Back

 
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