21 APRIL 1999
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.
EMPLOYMENT RELATIONS BILL
1. This bill makes many important changes in
employment law - more than its 38 clauses suggest because the
Schedules are long and contain much of importance. The provisions
are described very briefly in the Department's memorandum. In
view of the considerable importance of these provisions to large
numbers of employees and employers throughout the country, and
their families, the Committee has thought it necessary to provide
further detail in this report about some of the provisions.
2. This clause allows the Secretary of State
to make regulations outlawing the keeping of "black lists"
(lists which contain details of trade union members or others
who have taken part in union activities and are compiled for use
in recruitment). This is a very significant provision, and
no reason has so far been provided why the substance of the prohibitions
should not be on the face of the bill but should be left to regulations.
3. Clearly a prohibition has to be backed with
a penalty and the clause allows regulations to create criminal
offences. The bill does not specify the maximum penalty for such
offences. Regulations may amend enactments, so this is a Henry
VIII power. Clause 3(3)(a) allows regulations "to confer
jurisdiction (including exclusive jurisdiction) on employment
tribunals and on the Employment Appeal Tribunal". The Department
has not provided a satisfactory explanation of the likely use
of clause 3(3)(a). We assume that "jurisdiction" relates
to the use of blacklists and can only be concerned with civil
matters - for example, a claim that the claimant was refused employment
because his name was on a blacklist. Criminal offences will presumably
be tried by magistrates' courts or the Crown Court. The House
may wish to ask the Minister for a further explanation.
4. Regulations are subject to affirmative procedure
(clause 33(2)) and the Committee accepts that there is a case
for the Henry VIII power to amend enactments.
5. If the House decides to place the prohibition
of blacklists on the face of the bill, then clearly the bill will
specify the maximum penalty for this offence. But even if, contrary
to our present view, the offences are to be prescribed by regulation,
we nonetheless consider that the maximum penalty for an offence
against the regulations should be specified on the face of the
6. This clause inserts section 70B into the Trade
Union and Labour Relations (Consolidation) Act 1992. The new section
is concerned with the involvement of trade unions in the consideration
of an employer's policy on training. Subsection (9) is a Henry
VIII power to amend any of subsections (3) to (6) and subsection
(10) makes orders subject to affirmative procedure. The memorandum
states that the power was needed because "the level of detail
was considered more appropriate to secondary legislation"
and it would be easier to amend. The Committee does not accept
this reasoning: the detail is in the clause unless and until the
power is exercised. However, there is a case for flexibility and
the Committee considers the power appropriate, subject as it is
to affirmative procedure.
7. This clause allows the Secretary of State
to make "regulations about cases where a worker" is
subject to detriment or is dismissed because he refuses to enter
into a contract which is not consistent with a collective agreement
which applies to him. Clause 33(2) applies affirmative procedure.
The memorandum states that the power will be used to make it unfair
to treat a worker in this way and that the level of detail was
more appropriate to secondary legislation. Curiously, however,
it then adds that "The Government is considering, however,
whether to deal with these matters by primary instead of secondary
legislation." The Committee wishes to draw the House's
attention to this statement and invites the House to seek from
the Minister justification for delegating this power.
8. The clause requires the Secretary of Sate
to make regulations to prevent discrimination against part-time
workers. As with clause 3 there is power to confer jurisdiction
on tribunals and to create criminal offences. But with clause
17 it is easier to see that there will be need for both civil
and criminal proceedings. If a part-time worker is denied a benefit
by his employer, he could claim it before an employment tribunal.
If he is the victim of an act or omission by an organisation of
workers (see subsection (3)(b)), the only sanction may be a prosecution.
9. The Committee notes that regulations under
this clause will be used to implement Council Directive 97/81/EC
on part-time work (subsection (4))a) and (b)). We also note that
the Department's explanation of their choice of delegated legislation
to implement the Directive mentions that the Directive itself
does not cover pay, but "the Government believes that pay
should be covered at the same time as other employment conditions".
The delegated legislation could presumably also be used to apply
to other related matters not covered by the Directive. The Committee
also notes the two Henry VIII powers (paragraphs (f) and (h) of
10. Again clause 33(2) applies affirmative procedure,
which the Committee considers appropriate.
11. The Committee's comments on the power
to create offences under clause 3 apply here also and the Committee
recommends that the maximum penalty for an offence under the regulations
should be specified on the face of the bill.
12. This clause is concerned with the issue of
a code of practice about part-time workers. The Committee was
reassured to see that clause 19 imposes a procedure of consultation
and Parliamentary consideration with both Houses having the opportunity
to reject a draft code, which has to be approved by both Houses
before it can be issued.
13. Subsection (2) allows the Secretary of State
to confer by regulations any of the rights listed in subsection
(1) on "individuals who are of a specified description."
Subsection (3) allows the regulations to confer rights on individuals
even though they are "expressly excluded from exercising
the rights." Subsection (5) allows regulations to amend Acts.
This Henry VIII power is presumably intended to deal with the
case where an enactment mentioned in subsection (1) confers a
right on some workers but expressly excludes others and the Secretary
of State decides to confer that right on some or all of those
who are in the excluded group. Clause 33(2) again applies affirmative
procedure, which the Committee considers appropriate. The memorandum
says that the required amendments are likely to be detailed and
14. The clause repeals section 209(7) of the
Employment Rights Act 1996; that provision is a consolidation
of a provision which came from the Employment Protection (Consolidation)
Act 1978 and so is even older. Section 209(7) is also subject
to affirmative procedure.
15. This clause provides for the indexation of
amounts specified in the enactments listed in subsection (1).
The Secretary of State is required to make an order each year
when the index has changed. The clause allows him no discretion
as to amount. In the circumstances the Committee accepts that
there is no need for Parliamentary control, and notes that subsection
(6)(c) requires orders to be laid before Parliament.
16. This clause amends section 31(7) of the Employment
Rights Act 1996 by altering the order-making power at present
in that provision. The existing power is subject to negative procedure
and the clause does not affect that. The amendment raises no point
of principle and the Committee sees no need to comment on it.
17. This Schedule inserts a new Schedule in the
Trade Union and Labour Relations (Consolidation) Act 1992. There
are delegated powers in paragraphs 6(6) (a Henry VIII power),
8, 21(6), 25(5) (Henry VIII), 90(8), 94(6) (Henry VIII), 125 (Henry
VIII) and 127(1). There is in paragraph 126 a power to issue guidance
on the way the Central Arbitration Committee is to exercise its
functions under paragraph 19 (ballots about union recognition)
- guidance must be laid before each House and published so as
to draw it to the attention of those likely to be affected.
18. These Henry VIII powers are very limited
in their scope and are all subject to affirmative procedure. The
power in paragraph 8 is also subject to affirmative procedure.
The remaining powers are subject to negative procedure. The Committee
considers that in each case the appropriate level of parliamentary
control is provided.
19. This Schedule inserts a number of new sections
in the Employment Rights Act 1996 and makes a number of consequential
amendments to that and other Acts. The new clauses are about leave
for family or domestic reasons, and provide, for the first time
in UK law, a basic right to three months' parental leave, and
to time off for urgent family reasons. We applaud the honesty
of the Department's memorandum, which recognises the significance
of these clauses by citing as its first reason for choosing "regulations
rather than primary legislation" the fact that "there
was no prospect of Parliamentary time for a Leave for Family Reasons
Bill, particularly since the Parental Leave Directive must be
implemented by December 1999". In our view primary legislation
would have been preferable, but we accept that there is also a
case for flexibility, which the regulations will provide.
20. While the sections provide the framework
they will not operate without regulations to be made by the Secretary
of State. His powers are conferred by new sections 71(1), (2),
(3) and (6), 72(2) and (3), 73(2), (3), (6) and (7), 74 (which
extends sections 71 and 73), 75 (which supplements sections 71,
72 and 73), 76(1) (note the imperative - "shall" which
is repeated in subsections (2) and (3)), (2), (3), (4) and (5),
77(1) ("shall"), (3) and (4), 78(1), to (6), 79, 81(1)(b)
and (3), 57A(3) and 57C(1)(b) and (3). Among the consequential
amendments there are powers in paragraphs 10 (the new sections
47C of the 1966 Act) and 18 (the new section 99 of that Act).
21. The amendment made by paragraph 48 of the
Schedule has the effect of applying affirmative procedure to these
powers with the exception of those under sections 47C and 99 to
which section 236(2) of the 1996 Act will apply, so attracting
22. The memorandum gives an account of how these
powers will be used (see paragraphs under the heading "Schedule
4" and Annex B). The Committee accepts the justification
for these powers and the level of Parliamentary control provided
23. This Schedule amends the Employment Agencies
Act 1973. Paragraph 2 amends section 5, a power to make general
regulations and paragraph 3 amends section 6(1) (a restriction
on taking fees for finding employment) which contains a delegated
power. The Committee notes the comment in the Department's
memorandum that "during the Third Reading of the Bill in
the House of Commons, the Secretary of State indicated that the
Government would consider whether to seek an amendment requiring
regulations under [section 5 of the 1973 Act] to be subject to
the affirmative procedure". This is another instance of the
Government's policy concerning the powers in this Bill remaining
undecided in certain respects. The House may consider that the
Bill should indeed be amended at this point to provide for the
24. Although this bill has passed the House
of Commons certain important issues still remain unresolved in
relation to some of the delegated powers it contains, several
of which deal with particularly sensitive issues. In the case
of clause 3(1) and clause 15, the Committee invites the House
to question the case for delegated powers. If the House decides
to place the prohibition of blacklists on the face of the bill,
then clearly the bill will specify the maximum penalty for this
offence. But even if, contrary to our present view, the offences
are to be prescribed by regulation, the House may wish to consider
whether clause 3 should be amended to specify on the face of the
bill the maximum penalty for an offence under the regulations.
The House may also wish to consider amending clause 17 to specify
the maximum penalty for an offence under the regulations which
are to be made under that clause. The Committee has also drawn
attention to a number of areas where the House may wish to seek
clarification from the Minister, and has noted the Henry VIII
powers in the bill. There is nothing else in the bill that the
Committee wishes to draw to the attention of the House.
AREAS OF OUTSTANDING NATURAL BEAUTY BILL
25. This private member's bill contains one delegated
power and a simple commencement order power.
26. Clause 3 adds a new section 88B to the National
Parks and Access to the Countryside Act 1949 under which the Secretary
of State may, by order, establish a "conservation board"
for any area of outstanding natural beauty. The section (and the
Schedule set out in the Schedule to the bill) provide the framework
and section 110(3) of the 1949 Act attracts negative procedure.
27. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
TIME ZONES AND SUNMMER TIME (DEVOLUTION)
EUROPEAN COMMUNITY LEGISLATION (IMPACT)
28. These bills contain no delegated legislative
REQUEST FOR EVIDENCE ON THE PROPOSAL FOR THE DRAFT DEREGULATION (CASINOS) ORDER 1999
29. The Committee requests submissions in writing
no later than Monday 17 May on the proposal for the draft Deregulation
(Casinos) Order 1999, which was laid before the House on 19 April.
Copies of the proposal and accompanying explanatory memorandum
are available to Peers from the Printed Paper Office.
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