Select Committee on Delegated Powers and Deregulation Seventeenth Report


16 JUNE 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.



1. This large bill deals with a variety of issues under the general heading of social security benefits, pensions and national insurance contributions. Its subject matter is complex and cannot be simplified into broad statements of principle. It is made longer (and the number of powers in it is increased) by the need to make separate provision for Scotland and for Northern Ireland. However, the controversial policy decisions will be taken when the House considers the substantive provisions of the bill and the delegated powers raise only a few issues which the Committee wishes to draw to the attention of the House.

2. The lengthy and helpful memorandum from the Department of Social Security gives a comprehensive account of the delegated powers in the bill as well as explaining the background to the relevant clauses and Schedules. The memorandum states that there are 214 delegated powers in the bill (paragraph 16) but that nearly half of these concern the proposals on pension sharing for divorcing couples. There is an index to the delegated powers at the end of the memorandum. The amount of detail provided by the Department's memorandum has meant that this report is considerably shorter than it otherwise would have been.

3. In view of the large number of powers in the bill the Committee considered carefully whether the bill provided a sufficient framework for the exercise of these powers and concluded that it did. As the Department states in its memorandum, it has followed the precedent in current legislation[1] by setting out the overall legislative framework on the face of the Bill and providing for regulations to set out the matters of detail. Furthermore, "nearly half of the delegated powers in the Bill concern the proposals on pension sharing for divorcing couples". We accept the Department's view that as a consequence of pension sharing the Bill imposes a number of new requirements on pension arrangements and given the complexity and variety of these arrangements it would be "inappropriate to attempt to deal with every aspect of such requirements, and for every circumstance, in primary legislation." There is also a need for flexibility and so, "as in the Pensions Act 1995, the Department has, therefore, sought to avoid the primary legislation in this area being enormously lengthy and prescriptive and proposes to leave to secondary legislation technical matters and matters where flexibility is necessary".[2]

4. In the view of the Committee the essential provisions are in the bill and regulations under the bill are needed to fill in the detail.

Parliamentary control

5. There are two "affirmative" powers (in clauses 48(3) and 58), the commencement power is, as usual, not subject to Parliamentary control and, with one exception, all the other powers are subject to negative procedure. The exception is an order under clause 23(3) specifying a public service pension scheme as excepted from the pension sharing arrangements in Part IV of the bill.

6. The Department's memorandum states that the Government's "clear policy intention is that, wherever possible, pension rights built up in public service pension schemes should [be] available for pension sharing", and implies that in practice an order under clause 23(3) would only be used for a handful of schemes covering the Great Offices of State, and in future, the Scottish First Minister and the Presiding Officer of the Scottish Parliament.[3] On the face of it, however, the power in clause 23(3) is much wider, and the issue of pension sharing which it covers is of considerable importance. The House may therefore wish to consider whether the bill should be amended to provide for parliamentary control for this power, at least by the negative procedure.

Henry VIII Powers

7. Clause 39 allows regulations (subject to negative procedure) to amend existing legislation about judicial pensions to make it compatible with the provisions in the bill about pension sharing. Subsection (2)(b) is an interesting provision as it allows the regulations to confer power to make subordinate legislation, including subordinate legislation under which values are calculated in accordance with guidance prepared by a person specified in the subordinate legislation. This last provision is understandable - the specification of the actuarial basis for pension valuation is not a suitable function of subordinate legislation (see para. 224 of the memorandum). While at first sight it is surprising to see this power subject only to negative procedure, the Committee considers that it is appropriate as the bill gives the clearest indication of the limited purpose for which the power can be used.

8. Clause 48(3) inserts a new section 35A in the Social Security Contributions and Benefits Act 1992. Subsection (7) of that section allows the amendment of subsection (6)(a) to increase the maternity allowance threshold. An amendment to the 1992 Act applies affirmative procedure, which the Committee considers appropriate.

9. Clause 70 adds a new section 4A to the 1992 Act (and clause 71 makes corresponding provision for Northern Ireland). The new section allows regulations to be made treating (for the purposes of the 1992 Act) a worker as employed by a business when he is working under a contract with another person who has contracted with the business to supply his services. Paragraphs 392 to 395 of the memorandum explain the background - the Chancellor's budget announcement of his intention to introduce legislation to counter the risk of avoidance of N.I. contributions and PAYE where workers are supplied by service companies. The tax legislation will follow in the next Finance Bill and the Chancellor has stated his intention that the new measures will take effect from 6 April 2000. Subsection (9) of the new section 4A is a Henry VIII power allowing the modifying of the section to assimilate the law relating to income tax and the law relating to contributions. An order under this subsection is subject to negative procedure. As we understand it, this power can be considered to be consequential on the provisions which Parliament will consider when the Finance Bill is introduced and we understand that that bill could not be used to bring about this assimilation. Moreover, the power is for a limited purpose and is not capable of being used for a wider purpose. The Committee therefore considers the negative procedure appropriate.

10. Clauses 78(3) to (7) extend the powers conferred elsewhere in the bill. Subsection (5) allows any power to be exercised to make provision "amending, repealing or revoking enactments." The powers which are extended in this way are clearly limited, and are subject to negative procedure, which the Committee considers appropriate as the Henry VIII power is limited to making "incidental, supplementary, consequential, saving or transitional provision".

Other Powers

11. Clause 52 gives powers to require claimants of certain social security benefits to take part in work-focused interviews. It also provides for the circumstances in which work-focused interviews may be required and sets out what will happen if people do not take part in the interviews. These are important new powers, and the Committee considers that wherever the Government's intention for the use of these powers is already certain, for example not requiring retired people to attend work-focused interviews, then this should be stated on the face of the bill and not left to regulation. We also consider that the first instance of the use of these powers should be subject to the affirmative resolution procedure.

12. Clause 74 enables regulations to provide that tenants living in the social rented sector who receive Housing Benefit may keep part of any benefit saving generated by moving to suitable, smaller and cheaper accommodation. Subsection (5) requires regulations to confer a right of appeal, to such court or tribunal as may be prescribed, on a person aggrieved by any determination of a prescribed description made under the regulations. It is not clear to the Committee why the right of appeal is not on the face of the bill, and the House may wish to consider amending the bill to this effect.


13. The Committee has suggested that the bill should be amended to provide for greater Parliamentary control for clause 23(3) - an order excepting a public service pension scheme from pension sharing (at present no Parliamentary control is provided) and for orders under clause 52 (work-focused interviews): (we have also suggested a possible amendment to clause 52). We also consider that the right of appeal under clause 74(5) should be stated on the face of the bill.

14. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.


15. This Private Members' bill does not create any new delegated legislative power (apart from the simple commencement provision) but it extends an existing power and modifies the provisions for Parliamentary control over the exercise of another existing power.

16. Section 45 of the Road Traffic Act 1988 provides for the Secretary of State to make regulations about testing vehicles (other than goods vehicles to which section 49 applies). Section 46 details provisions which may be made by regulation under section 45. Clause 2 substitutes a new section 46 which is more extensive but does not raise issues for the Committee. Regulations under section 45 are subject to negative procedure.

17. Clause 6 modifies the Parliamentary procedure applicable to an order made (within 12 months of the passing of the bill) under section 102 of the Finance (No. 2) Act 1987 and relating only to the fixing of fees under section 46 of the Road Traffic Act 1988. Section 102(3) and (4) allow orders to be made specifying matters which are to be taken into account in fixing government fees and charges. Section 102(5) applies affirmative procedure. Clause 6 reduces this to negative procedure for the limited purposes and during the limited period specified in the clause.


18. There is nothing in the bill which the Committee wishes to draw to the attention of the House.


19. This Private Members' bill contains a commencement power and detailed powers to make regulations about the "detention of vehicles used without operator's licence". The powers to make regulations are set out in the Schedule to the bill which is a new Schedule to be inserted in the Good Vehicles (Licensing of Operators) Act 1995. Under that Act "prescribed" (used in, for example, paragraph 7(2) of the Schedule) means prescribed by regulations, there is a consultation requirement and the regulations will be subject to negative procedure.

20. The Committee notes the provisions about appeals (paragraph 11)), the determination of conflicting claims (paragraph 13(2)(c)) and the resolution of disputes (paragraph 16). It considers the negative procedure provided for appropriate (as well as being consistent with the 1995 Act).


21. There is nothing in the bill which the Committee wishes to draw to the attention of the House.[4]

1   We do not, however, consider the Jobseekers Act 1995, one of the precedents cited by the Department, as a good one, recalling that this Committee produced two highly critical reports on the bill, leading to its substantial amendment. Back

2   Department's memorandum, paragraphs 18-23. Back

3   Paragraph 133. Back

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

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