Select Committee on Delegated Powers and Deregulation Third 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.



1  This bill is essentially enabling legislation conferring upon the Secretary of State powers to make regulations providing for a new system of pollution prevention and control. The width of the powers to be conferred by section 1 to regulate activities capable of causing environmental pollution or in connection with the prevention or control of such pollution is virtually unlimited.

2  The powers include, but are not confined to, regulations for any of the purposes listed in part 1 of Schedule 1 (clause 1(2)). Any activity, not merely industrial or commercial activities, may be controlled if it produces pollution which is defined so widely that few activities escape (clause 1(3)). There is a power for the regulations to delegate to a third party anything which could be determined under the regulations. There is no limitation expressed to this further delegation so that in theory it is possible for vital elements in the controls to be left to be determined by a person specified in the regulations. Nor is there any limitation upon the category of persons to whom such powers of determination may be further delegated (clause 1(4)(a)). Regulations may include consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking enactments). This Henry VIII power ranges wide because the scope of the regulation-making power is in no way clearly defined and is thus virtually unlimited.

3  Schedule 1 lists the particular purposes for which regulations may be made. But it does not cut back in any way the power in clause 1 and is not concerned with identifying the particular activities which may be the subject of regulation. In one sense it actually expands clause 1(1) since it makes clear that regulations concerned with the particular activity may include provisions establishing "regulators", requiring permits and imposing penalties, which are all provisions which might not fall within the ambit of clause 1(1). The offences created by the regulations can be made to carry penalties of up to six months' imprisonment or a fine not exceeding 20,000 (or both) when tried summarily, or imprisonment for not more than five years or an unlimited fine (or both) when tried on indictment.

4  The bill provides that the regulations shall in all cases be governed by the negative resolution procedure.

5  In its memorandum (paragraphs 1.2 to 1.6) the DETR explain that the legislation will implement Council Directive 96/61/OC concerning integrated pollution prevention and control which requires the regulation of emissions into the air, water and land from installations carrying out the activities listed in the Directive. The Department explains that regulations will, however, go beyond the ambit of the Directive and supersede the regime provided by Part I of the Environmental Protection Act 1990. They argue that the powers in clause 1 of the bill will enable a single comprehensive pollution control regime to be set up to satisfy both the requirements of the Directive and to supersede the Part I regimes. They suggest that this objective can appropriately be achieved through regulations because the Directive itself could have been implemented by the reliance on existing delegated powers in section 2(2) of the European Communities Act 1972 and harmonisation with the Part I regimes achieved by making regulations under Part 1 of the 1990 Act. We find it difficult to see that this reasoning justifies proceeding by enabling legislation conferring such very wide delegated powers. The structure of the 1990 Act is very different; much of the substance of the controls is in the Act and regulations have a secondary rather than a primary role; there is no power to delegate; and a narrower definition of pollution limits the scope of activities which can be the subject of regulations. But our fundamental concern is as to whether it can ever be right to legislate on a topic of such importance, which provides for widespread controls and affects activities carried on both on a commercial and private basis, leaving everything of substance to be determined either by or under the regulations. So far as we can judge there is no specific issue of policy which the provisions of the Bill seek to decide. All that it does is to confer powers to make regulations to control or prevent pollution.

6  We are bound to report to the House that as at present drafted this is a "skeleton" bill and so is an inappropriate delegation of secondary powers.

7  If the House shares our concern it will no doubt wish to consider whether the bill can be saved by amendments which specify with more precision the ambit of the legislation and the criteria to be taken into account in making regulations. The following issues could fall for consideration:

    Whether the legislation should be limited solely to matters provided in Schedule 1.

    Whether there should be a clear indication of the ambit of powers which may be delegated.

    Whether the categories of person to whom powers can be delegated under the regulations to determine matters which could have been provided in the regulations should be specified.

    Whether the legislation should provide in terms that permit conditions and regulations should always be based on the use of the "best available techniques" including cost/benefit assessments as the Explanatory Notes contemplate.

    Whether the bill should provide that no regulation should be made without proper consultation. The Explanatory Notes record consultation about the implementation of the Directive and state that "a third consultation paper, including a draft of the regulations which the Secretary of State proposes to make under the Bill, is due to be published before the end of 1998". We have since been informed by the DETR that the regulations will be available for the consultation which will take place in early January 1999. It is clearly recognised to be proper practice to consult on the regulations and it would seem appropriate to include a requirement to do so within the primary legislation.

8  Whether or not the substance of the bill is amended we are concerned that the regulations should be subject only to the negative procedure. We consider that in the first instance of their use the regulations should be subject to the affirmative procedure. We also consider that any subsequent regulations which create new offences, or increase penalties for offences created under the initial regulations, should be governed by the affirmative procedure. In the light of the width of the Henry VIII power, we consider that any regulations which amend or repeal an Act of Parliament should be subject to affirmative procedure.


9  Clause 2 does not create a new power. It allows an Order in Council under the Government of Wales Act 1998 transferring Ministerial functions under the bill to be made by negative procedure and not the affirmative procedure provided by the 1998 Act. The Committee considers this appropriate as Parliament has the opportunity during the passage of the bill to consider the merits of transferring functions under the bill. Clause 2 also allows functions under the bill to be transferred to the Scottish Executive under powers contained in the Scotland Act 1998.


10  The Committee wishes to draw the attention of the House to its conclusion that the bill as presently drafted is a skeleton bill and to its suggestions in paragraphs 7 and 8 of this Report of ways in which it might be amended to improve it.

11  The Committee would also wish to add that, even if the House accepts the bill with any such amendments as being justified for the reasons which the DETR give for proceeding by such wide-ranging enabling legislation, the Committee would not wish this bill to be regarded as a precedent for the future. It remains important that the purposes and ambit of legislation, together with any important governing criteria, should be clearly specified within the primary legislation and not simply left to the exercise of delegated powers.



12  Part I of the bill is concerned with the referral of offenders under 19 to youth offender panels. The remainder of the bill makes a number of important changes to the law and procedure about prosecutions and trials. While there are many important issues which will be discussed during the passage of the bill, the Committee is restricted to commenting on the delegated powers.


13  Clause 2(3) allows the Secretary of State to make regulations amending the clause to alter the description of offenders to which it applies.

14  Clause 18(4) allows the Secretary of State to make an order amending the clauses concerned with special measures to protect vulnerable and intimidated witnesses (clauses 16 to 32). An order may modify provisions relating to any measure available in relation to such a witness by modifying existing measures, adding new ones and removing old ones but may not alter the circumstances in which a special measures direction may be made.

15  Clause 41(2) allows the Secretary of State to make an order "adding, or removing, for the purposes of section 40, any offence to or from the offences which are sexual offences for the purposes of this Act by virtue of section 57(1) and (2)". This is not a true Henry VIII provision as no textual amendment is involved (the definition in clause 57(1) and (2) is needed for other provisions in the bill which are not affected by clause 41(2)). It is convenient to discuss the power here and it is, like the true Henry VIII powers in the bill, subject to affirmative procedure.

16  Paragraph 13(8) of Schedule 1 allows the Secretary of State to make regulations amending paragraphs 10 to 13 of the Schedule to alter the descriptions of offenders who may have their compliance period extended under those provisions.

17  In the Committee's view none of these powers is inappropriate. They are all subject to affirmative procedure, which the Committee considers provides the appropriate level of parliamentary control.


18  With the exception of the commencement power, all powers which are not subject to affirmation procedure are subject to negative procedure. None raises issues which the Committee wishes to draw to the attention of the House.


19  The Committee has mentioned the Henry VIII powers in the bill. There is nothing else which the Committee wishes to draw to the attention of the House.



20  This bill establishes a Disability Rights Commission. Apart from the commencement powers, the new powers created by the bill are subject to negative procedure.


21  Regulations under clause 4(3) are important as they add teeth to non-discrimination notices by the Commission. Regulations may also extend the meaning of "unlawful act" in the clause (see subsection (6)). Although both powers are important, the Committee considers appropriate the negative procedure provided. Similar considerations apply to the corresponding provisions in clause 5 (agreements entered into by Commission in lieu of enforcement action).


22  Clause 8 inserts in the Disability Discrimination Act 1995 a section about codes of practice to be issued by the Commission. The Committee notes with approval the inclusion in the section of requirements about consultation and laying draft codes before Parliament (when either House can resolve not to approve the draft).


23  The side note indicates that this clause is a Henry VIII clause but it does not create a new power, rather it modifies an existing one which is subject to negative prodedure. Section 7 of the 1995 Act exempts from the requirements of the Act small businesses which it defines as those with fewer than 20 employees. An order under subsection (2) can reduce that number.


24  There is nothing in the Bill which the Committee wishes to draw to the attention of the House.


25  The only delegated power in this bill is a simple commencement power. There is nothing in the bill which the Committee wishes to draw to the attention of the House.


26  There are no delegated legislative powers in this Bill.[1]

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

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