Select Committee on Delegated Powers and Deregulation Thirty-Second Report



Letter from Lord Sewel to the Chairman

I am writing to you in your capacity as the Chairman of the Delegated Powers and Deregulation Committee to inform you of a number of amendments to the Scotland Bill which the Government are bringing forward in relation to powers to make subordinate legislation.

The Delegated Powers and Deregulation Committee reported on the Scotland Bill in the 24th report [HL 124] and made a recommendation in respect of powers which modify primary legislation. The Government are happy to take this recommendation on board.

The powers contained in the Scotland Bill are, as the Committee recognised, necessarily complex, not least because they deal with not one but two Parliaments. However, we are conscious that the operation of clauses 101-103 of the Bill has not been easy to understand for many Members of Parliament and Peers during the debates on the Bill. We have therefore looked to simplify the provisions where possible. There have also been a number of changes to the subordinate legislation provisions in earlier parts of the Bill, and the amendments take account of these.

I attach the text of the amendments which we have tabled, along with further related amendments for Report [not printed]. The net effect of these is to replace the whole of clauses 101-3 except for 101(1) which is retained (but which is followed by four new subsections). For ease of reference, the two new clauses which are to be inserted after clause 101 are referred to here as 101A and 101B. The effect of the amendments is considered below.


In the Bill as it stands, it is not immediately obvious what procedure pertains to a particular power to make subordinate legislation. It is necessary to determine whether the power is listed in various subsections of clause 102 and whether the provisions of clause 103 apply. Only by determining what combination of subsections applies is it possible to tell what procedure is required. For example, orders under clause 29 are listed in clause 102(1) and (3), requiring them to be affirmative instruments in relation to both Houses of Parliament and the Scottish Parliament. Clause 102(5) then prevents the instrument from being made without approval of the Parliaments. It is this combination of a variety of subsections which seems to lead to some difficulty.

We therefore intend to replace clauses 102 and 103. Subsection (1) of a new clause 102 will direct the reader to a new Schedule 6A. This Schedule contains a table which lists which of 11 "types" of procedure applies to a particular power. The definition of these types of procedure is then set out in paragraph 2 of the Schedule. Thus, to determine the procedure pertaining to clause 29 orders, the reader looks at the table and determines that Type A procedure is to be used. He then goes to the description of Type A, which states that no recommendation to make the legislation is to be made to Her Majesty in Council unless a draft of the instrument (a) has been laid before, and approved by resolution of, each House of Parliament and (b) has been laid before, and approved by resolution of, the Parliament.

We consider that this two-stage process will prove much easier for a reader to understand to understand and to follow.

In the case of "open powers", the Committee made mention of the formula used in Schedule 2, para 2(2) of the European Communities Act 1972 and you may wish to note that the formula for the relevant procedure for open powers, "Type G", is now the same as in that Act. The term "open power" is also added to the Index of Defined Expressions provided in clause 113.

Paragraph 3 of Schedule 6A provides for special cases where the procedure applying to a particular power is modified in certain cases. This is related to the power to modify enactments and the recommendation of the Delegated Powers Committee, as explained below.

Powers to Modify Enactments etc.

In the Bill as it stands, clause 101(5)-(7) provides that subordinate legislation made under certain provisions of the Bill may modify (to a greater or lesser extent) enactments, prerogative instruments or other documents. In some cases, powers are also permitted to modify parts of the Scotland Bill and provisions made under it. The Committee recognised the special position of the Scotland Bill as regards powers for subordinate legislation made under it to amend enactments.

In relation to the ability to modify primary legislation, the Committee acknowledged that the Bill has to make complex provisions and that powers to modify primary legislation are necessary for the purpose. However, the Committee invited the House to consider whether amendments to the Scotland Bill should be permitted without the use of the affirmative resolution procedure. It also suggested that provision such as that in the Government of Wales Act might be adopted, requiring subordinate legislation which amends primary legislation to be subject to affirmative procedure.

We have considered these suggestions and are happy to accept them. Paragraph 3 of Schedule 6A therefore provides that, where subordinate legislation contains provisions which textually amend or more precisely "add to, replace or omit any part of the text of an Act (including [the Scotland] Act)" and would otherwise be subject to one of the types of negative procedure, the procedure is changed so that the instrument is instead subject to affirmative procedure.

We have also given further consideration to the terms of clause 101(6) and, for greater precision and clarity, propose to separate out the powers contained in that provision. Clause 101B(1) will provide a power for subordinate legislation made under certain clauses to modify the Scotland Bill (except Schedules 4 and 5) and subordinate legislation under the Bill. The list of powers under which the Bill may be modified has been reduced from that in clause 101(6). Special protection is afforded to Schedules 4 and 5, which go to the heart of the devolution settlement - clause 29 provides a bespoke mechanism for amendment of these Schedules with the agreement of both Parliaments, and it would be inappropriate to permit other subordinate legislation under the Bill to amend them.

Clause 101A(5) will provide a power for subordinate legislation under the Bill to amend any enactment (other than the Scotland Bill or subordinate legislation made under it), prerogative instrument, or other instrument or document. In comparison with the former clause 101(6), this power has been widened so that most powers to make subordinate legislation under the Bill may make use of it. Although we expect that relatively few powers will need to amend primary legislation, there is a greater need for powers to modify secondary legislation or other documents, and we consider that the greater flexibility which clause 101A(5) offers is desirable. As described above, Schedule 6A provides safeguards on the use of this power in that any subordinate legislation which textually amends an Act will be subject to affirmative procedure.

Clauses 105 to 109 of the Bill set out a number of general modifications to existing enactments, instruments and other documents. These only apply in certain circumstances. A new clause, to be inserted after clause 110, makes clear that subordinate legislation under the Bill may provide that such a general modification will not apply, or will apply with modifications, in particular cases. For example, it is proposed that the Order under clause 59, which provides for the transfer of certain Ministerial functions to Scottish Ministers, will apply with modifications the general modification set out in clause 105 which translates references to a Minister of the Crown to include references to the Scottish Ministers.

We consider that the power contained in clause 101(5) allowing an Order in Council under clause 29 to modify any enactment (including the Scotland Act), prerogative instrument or other document would be more appropriately located in clause 29 itself. Amendments to achieve this will be brought forward at Report, as indicated in the text attached [not printed].

Other amendments

Clause 97 is an open power but under the present clause 102(1) subordinate legislation under that clause is subject to affirmative procedure. It is considered that it is more appropriate that, as with other open powers, there should be a choice of procedure before the Westminster Parliament - either negative or draft affirmative - ie Type G. However, in line with the amendments described above, when such an instrument textually amends primary legislation of the UK Parliament, then it will be subject to affirmative procedure.

Clause 115(3) provides a general power for subordinate legislation to make transitory or transitional provision in connection with the coming into force of any provision of the Scotland Act. This is an open power and subordinate legislation under clause 115(3) may be made either by Her Majesty by Order in Council or by a Minister of the Crown by order. Such an order will normally be subject to Type G procedure, ie negative resolution in respect of both Houses of Parliament unless the instrument is laid in draft and approved by resolution of both Houses. Amongst other things, we intend that this power will be used to provide for appropriation of sums from the Scottish Consolidated Fund for the financial year 1999-2000. Such orders would replace the normal Westminster appropriation procedure. Clause 101(B1) has been inserted to ensure that when the power is used in this way it is exercisable only by Her Majesty by Order in Council, and paragraph 4 of Schedule 6A provides that such orders are subject to affirmative procedure. This has been done to reflect the special importance of such appropriation orders.

Also in connection with transitional arrangements, it will be necessary for the procedures applying to certain orders to be amended until such time as the Scottish Parliament assumes its powers. For example, the power in clause 14 for an Order in Council to specify office-holders who are to be disqualified from membership of the Parliament will be subject to affirmative resolution procedure in the Scottish Parliament (Type D procedure). However such an Order would obviously need to be in place in time for the first elections, and we therefore require to make an initial Order which is subject to procedure in the Westminster Parliament. The new provisions of clause 102(2) and (3) are intended to make it clear that an order under clause 115(3) can modify the procedure which is to apply to orders under the Bill to take account of this sort of situation.

We have also given consideration to those powers which may require to be exercisable in relation either to all cases to which the power extends or to particular subsets of those cases. One area we have in mind is clause 99 (Scottish taxpayers for social security purposes) where we wish to ensure that there is flexibility in the way that individuals to which the clause applies are described. Subsection (3) of clause 101A therefore provides generally that a power may be exercised in relation to all cases to which it extends, to those cases subject to specified exceptions or to any particular case or class of case. We are also making related amendments to clause 99 and to clause 112(7) to clarify the operation of these powers.

Finally, we have taken the opportunity to restructure the remaining material in clauses 101-103 to provide for a more logical arrangement.

I trust that you agree that these amendments provide an improvement on the provisions contained in clauses 101-103 of the Bill, and that you are content that the recommendation of the Delegated Powers and Deregulation Committee will be implemented.

I am copying this letter to Lord Mackay of Ardbrecknish and Lord Mackie of Benshie. I am also arranging for copies to be placed in the Library.

Lord Sewel CBE
Parliamentary Under-Secretary of State
Scottish Office

2 October 1998

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