Select Committee on Delegated Powers and Deregulation Sixteenth Report



SIXTEENTH REPORT

27 MAY 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.

GREATER LONDON AUTHORITY BILL

Introduction

1.  The Explanatory Notes state that this bill establishes the Greater London Authority (for the London Boroughs, the City of London and the Temples); provides for elections for the Mayor of London and the London Assembly; defines the Mayor's and the Assembly's powers and functions; establishes Transport for London; creates the London Development Agency; establishes the Metropolitan Police Authority; and defines the GLA's planning, environmental and cultural responsibilities.

2.  The Department's excellent memorandum lists the delegated powers and provide a commentary on each. The Committee is particularly grateful to the Department for acting in an exemplary way in its preparation of the memorandum on this bill, which is of considerable importance and size. Although the Committee considered all the powers conferred on ministers by the bill with care, few of these raised issues which we wish to draw to the attention of the House.

3.  The bill confers very substantial powers on the Mayor, which we list for convenience in paragraphs 16 and 17. Although these powers are substantial, it is for Parliament to decide whether they should rightly be granted when considering the primary legislation. The issues of the appropriate degree of control of the Assembly over the Mayor are likewise a matter for debate on the primary legislation, and not a matter for this Committee. If those powers had been conferred on a minister, it would be argued that some at least were legislative powers and the Committee would have to consider whether the bill imposed appropriate Parliamentary control. The Mayor will not be answerable to Parliament and the only way of imposing Parliamentary control over his exercise of powers would be to interpose some form of ministerial endorsement which could itself be subject to Parliamentary control. But the policy clearly is to give the democratically elected Mayor independence and power to run London. Moreover, the Mayor will be directly elected and accountable to the electorate through the ballot box and, more immediately, to the Assembly itself. For our part, having regard to these considerations, we do not suggest that these powers should be subject to parliamentary control.

Human rights implications

4.  The Minister has assured the House that the bill complies with the Human Rights Act. It is our understanding that, from 2 October 2000, the Mayor will be subject to the Act and thus open to challenge in the courts and that it is unnecessary to add anything to the bill to achieve this. The House may wish the Minister to confirm on the floor of the House our understanding of this point.

Ministerial powers

5.  The majority of powers are subject to negative procedure. Affirmative procedure is applied to orders under clauses 20(1)(b) and 26 (subsections (7) and (9) are Henry VIII powers). The powers under paragraph 16(2) of Schedule 18 and paragraphs 4 and 22(2) of Schedule 19 are subject to affirmative procedure in the Commons (these powers all relate to financial matters). In addition to the commencement power the following powers are not subject to Parliamentary control:

clause 2(4) - (extended by Schedule 1) - order dividing London into constituencies and giving each a name;

clause 23(1) - order prescribing form of declaration of acceptance of office to be made by Mayor or Assembly member;

clause 235 - order dissolving London Regional Transport;

clause 243 - order under new section 5C(2) of the Police Act 1997 altering the number of members of the Metropolitan Police Authority;

clause 258(9) - order appointing day for the reconstitution (in accordance with Schedule 23) of the Fire etc. Authority;

clause 316(2) and (3) - order varying (within a 5 year limit) the date from which the Secretary of State ceases to have to provide accommodation for various new bodies; and

Schedule 3 paragraph 3(2) - order under new section 35(2B) of the Representation of the People Act 1983 designating returning officer at Assembly election.

6.  The Committee were at first concerned that there is no provision for Parliamentary control of orders under clause 2(4) specifying the areas which are to be Assembly constituencies. But Schedule 1 to the bill contains supplementary provisions which satisfied the Committee. Paragraph 8 of that Schedule provides that an order under clause 2(4) may give effect, with or without modifications, to a report of the Local Government Commission for England. The Explanatory Notes to the bill explain that the Commission has already reported (under the transitional power in the Greater London Authority (Referendum) Act 1998) and that the Government has accepted the recommendations (the proposed constituencies are shown in the map at the end of the Explanatory Notes). The rules set out in paragraph 7 of the Schedule regulate how London may be divided into Assembly constituencies and these rules restrict the number of constituencies to 14, require each to consist of two or more entire London boroughs and each of the boroughs in a constituency must share a border with another borough in that constituency. With all these restraints limiting the discretion under clause 2(4) the Committee accepts that it is appropriate for there to be no Parliamentary control.

7.  The Committee considers that the provisions in Schedule 3 are consistent with similar provisions in the 1983 Act and need cause no concern. We see the provisions of clauses 235, 258(9) and 316(2) and (3) as comparable with commencement orders. Clause 23(1) is too insignificant to justify Parliamentary control. Clause 243 provides that the order shall be laid before Parliament after being made (see new section 5C(5)) and the Committee accepts that as appropriate.

CLAUSE 26

8.  Subsections (7), (8) and (9) of clause 26 each contain an order making power subject to affirmative procedure.

9.  Subsection (7) is a Henry VIII power allowing the amendment of clause 26 to place further limits on what the Authority may do by virtue of clause 25(1) (general power of authority to do anything which it considers will further one or more of its principal purposes). We consider affirmative procedure appropriate for this power.

10.  Subsection (8) allows the imposition of limits on the expenditure which the Authority may incur by virtue of clause 25(1). While this is not a Henry VIII power, it is a significant restraint on the freedom which the bill gives the Authority to settle its own policies and we see affirmative procedure as appropriate.

11.  Subsection (9) is the converse of subsection (7) and allows the amendment of clause 26 to remove or ease the restriction the clause places on the Authority's use of clause 25(1). This is a Henry VIII power and we accept that affirmative procedure is appropriate.

OTHER HENRY VIII POWERS

12.  Clause 316 creates a power which is not subject to Parliamentary control. In form this is a Henry VIII power but of the least disturbing kind. In effect, when the new bodies have found accommodation the order removes the duty to provide interim accommodation. The Committee considers that the provision is acceptable.

13.  Subsection (1) of clause 317[1] allows any Minister of the Crown to make by order "such amendments, repeals or revocations as appear to him to be appropriate in consequence [of the bill] or of any regulations or orders made [under it]" in any enactment in an Act passed before the relevant day or in the Session in which that day falls or in any subordinate legislation made before that day or in that Session. (Relevant day means the earliest day on which the Authority and functional bodies are all in being and London Regional Transport and the Receiver for the Metropolitan Police District have ceased to exist.) This is a very considerable Henry VIII power and we do not accept that it is appropriate that the Parliamentary control over it should be by negative procedure. We invite the House to consider whether the bill should be amended to apply affirmative procedure to this power.

14.  Subsection (2) of clause 317 extends all powers under Part XII of the bill to make by order or regulations "incidental, consequential, transitional or supplementary provision". This includes amending or repealing any enactment within subsection (1). We considered whether orders or regulations involving an exercise of this Henry VIII power should be subject to affirmative procedure while other orders or regulations under Part XII would remain subject to negative procedure. We see subsection (2) as more limited than subsection (1) for the power under subsection (2) can only be used to supplement the transitional and supplementary powers in Part XII of the bill. We accept that negative procedure is appropriate for these powers even where they are used to amend the statute book.

15.  There are also Henry VIII powers in:

  • Schedule 19, paragraphs 4 and 22(4) - these are subject to affirmative procedure in the Commons and need no comment from the Committee;
  • Schedule 21, paragraph 23(3) - order amending description of magistrates in earlier paragraphs of the Schedule. This is limited to amendments consequential on change in the legislation relating to the organisation of magistrates. The Committee considers that the negative procedure provided is appropriate; and
  • Schedule 23, paragraph 1(5) - order varying the number of Assembly members appointed by the Mayor to serve on the Fire etc Authority or the number of London Borough councillors to serve on that Authority (but Assembly representatives must always be one more than borough representatives). The Committee considers that negative procedure is appropriate here also.

Powers conferred on the Mayor

16.  We have considered the broad scope of these powers in paragraph 3 and we now list them. Clause 29 provides that any function of the Greater London Authority shall be exercisable by the Mayor alone, or the Assembly alone or by the Mayor and Assembly acting jointly. Which of these options applies to a particular function is determined by the enactment transferring, conferring or imposing the function. The following paragraph lists some of the functions exercisable by the Mayor. Clause 31 deals with the delegation by the Mayor of functions exercisable by him.

17.  There are important powers conferred on the Mayor in many clauses of which the Committee wishes to draw the attention of the House to the following:

clause 129 - power to give directions to a London Borough council which has failed to comply with his transport strategy;

clause 132 - additional power to give directions in connection with his transport strategy;

clause 134 - directions etc. to Transport for London;

clause 161 - guidance to Franchising Director in relation to Greater London rail services (see subsection (8));

clause 238 (in new section 6A of the Regional Development Agencies Act 1998) - power of Minister of Crown to delegate certain functions to the Mayor;

clause 239 (in new section 7A) - may give guidance and directions to London Development Agency;

clause 248 - Secretary of State to have regard to any representations made by the Mayor about the selection of the Commissioner of Police of the Metropolis;

clause 264 - Mayor's "spatial development strategy" (clause 275(7) amends the Town and Country Planning Act 1990 to ensure conformity with the strategy);

clause 286 - directions to ensure compliance with his municipal waste management strategy;

clause 292 - directions to require local authority to help him prepare his London air quality strategy;

Schedule 16 - this schedule transfers responsibility for Hackney carriages to Transport for London. That corporation is created by clause 133 and the Mayor may issue under clause 134 guidance and directions to it. One of the consequences of the transfer is the Secretary of State's powers under existing legislation to make regulations governing cab fares in London or to make an order increasing the length of obligatory journeys are transferred to Transport for London. In place of regulations or an order made by statutory instrument there would be a "London cab order" which would presumably be published by Transport for London. One of the existing powers is subject to negative procedure but there can be no Parliamentary control over London cab orders.

Directions by the Secretary of State

18.  There are a number of provisions in the bill which confer on the Secretary of State power to give directions to the Mayor (and require the Mayor to comply with the directions). We instance clause 36 (directions requiring the Mayor to prepare and publish a strategy mentioned in clause 33(1)); clause 125(1) (direction to revise transport strategy to remove inconsistency with national policies); clause 240 (in new section 7B(4) - direction to revise London Development Agency strategy to remove inconsistency with national policies); clause 267(6) (direction not to publish spatial development strategy except in form which removes inconsistencies with national policies); clause 271 (direction to review spatial development strategy); clause 272 (direction to prepare alterations to the spatial development strategy or a new strategy); clause 284 (direction about content of municipal waste management strategy); and clause 290 (direction about content of London air quality strategy). Many of these powers are of considerable importance. We considered, however, whether the power to give directions amounted to a delegated legislative power in any of these instances and decided that it did not.

Recommendation

19.  The Committee wishes to draw the attention of the House to its recommendation concerning the Henry VIII power in Clause 317 of the bill. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.

PROTECTION OF CHILDREN BILL

Introduction

20.  The bill requires the Secretary of State to keep a list of persons who are considered unsuitable to work with children (clause 1(1)). There is a right of appeal against inclusion in the list (clause 4) and the bill establishes a tribunal to hear the appeals (clause 9 and the Schedule).

Clause 6

21.  This clause extends the existing power to make regulations under section 218 of the Teaching and Higher Education Act 1988 to provide a right of appeal to the Tribunal against a decision to prohibit or restrict a person's employment. Regulations under section 218 are subject to negative procedure, which the Committee considers appropriate.

22.  Clause 6(3) states that "such regulations may[2] provide that, where a person has been convicted of an offence involving misconduct, no finding of fact on which the conviction must be taken to have been based shall be challenged on an appeal under the regulations." The memorandum from the Department of Health states that this is a "mirror power" to that in Clause 4(4). This is not in fact the case, as clause 4(4) makes the prohibition, which is absolute, on the face of the bill, rather than by regulations. The explanatory notes explain that the reason for the provision in clause 4(4) "is to prevent both attempts to revisit criminal trials at an inappropriate hearing and the expense and delay that could be caused by allowing such attempts". Clearly a mirror power is indeed necessary, rather than optional, in the case of Clause 6. Although this is a private member's bill it has Government support and the House may wish to question the minister over the Government's intention to use the power in clause 6(3).

Clause 8

23.  This clause amends the provisions about criminal record certificates in sections 113 and 115 of the Police Act 1997 to take account of the provisions in the bill about the list of persons unsuitable to work with children. The use of the term "prescribed" in new subsections (3A)(b) and (3B)(d) of section 113 and new subsection (6A)(b) of section 115 attracts the power to make regulations under the 1997 Act (which are subject to negative procedure).

Clause 9

24.  This clause and the Schedule deal with the constitution and procedures of the Tribunal to hear appeals under the bill. The Schedule provides for the constitution of the Tribunal and the power to prescribe (by regulations subject to negative procedure) the qualifications of lay members is the only relevant delegated power. Subsections (2) to (4) of the clause leave all procedural matters to be dealt with in regulations. The Committee noted that subsection (5) makes it a summary offence, punishable by a fine, to fail without reasonable excuse to comply with requirements imposed by regulations under:

  1. subsection (3)(f) - reporting restrictions;
  2. subsection (3)(h) - discovery, inspection and the provision of further particulars; or
  3. subsection (3)(j) - requirement to give evidence or produce documents.

We consider that the negative procedure is appropriate for these powers.

Clause 10

25.  This clause gives the Secretary of State power by order to extend the protection afforded by the bill to persons aged 18 or over who are suffering from mental impairment. This is close to being a Henry VIII power and the Committee considers that the affirmative procedure provided is appropriate.

Recommendation

26.  The Committee has drawn attention to the power in clause 6(3) of the bill, relating to appeals against prohibition or restriction of employment. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.[3]


1  In the light of our concerns about this clause the Department of the Environment, Transport and the Regions submitted a supplementary memorandum, for which we are most grateful. Back
2  The Committee's italics. Back
3  This report is also published on the Internet at the House of Lords Select Committee Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back

 
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