Select Committee on Delegated Powers and Deregulation Twenty-First Report


TWENTY-FIRST REPORT



30 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.

DRAFT FREEDOM OF INFORMATION BILL

INTRODUCTION

1.  The significance of this draft bill is summarised by the Government in the following terms:

"Freedom of Information is an essential component of the Government's programme to modernise British politics. This programme of constitutional reform aims to involve people more closely in the decisions which affect their lives. Giving people greater access to information is essential to that aim. The effect of Freedom of Information legislation will be that, for the first time, everyone will have the right of access to information held by bodies across the public sector. This will radically transform the relationship between Government and citizens."[1]

The role of the Delegated Powers and Deregulation Committee

2.  The Committee's terms of reference are, however, limited and are set out above. It is not our task to comment upon the merits of bills; our remit is confined to the powers proposed to be delegated by bills. This means that there are many aspects of the primary legislation which we do not have to consider, but there are some areas where, in considering the scope of proposed delegated powers, we have to look at the statutory framework within which the powers are set. The Committee's usual role is one of advising the House of Lords. It is for the House to decide whether or not to act on the Committee's recommendations; the Committee itself has no power to amend bills.

3.  In examining a bill we look to see whether the grant of secondary power is appropriate. This includes expressing a view on whether the matter is so important that it should be dealt with only in primary legislation. It also includes commenting on whether a bill sufficiently particularises the principles on which, and the circumstances in which, secondary legislation may be passed, and so avoids being characterised as a "skeleton bill". We consider what form of parliamentary control is appropriate and, in particular, whether the proposed power calls for the affirmative procedure. We go on to consider whether the legislation should provide for consultation in draft form before the regulation is laid before Parliament, and whether its operation should be governed by a Code of Conduct. We have also regarded secondary powers as potentially embracing the power of the Minister to make provision by Code or the issuing of guidance.

The Committee's role in pre-legislative scrutiny

4.  This is the second occasion on which we have been invited to submit our views to a Committee charged with pre-legislative scrutiny. Earlier this year we responded to the invitation of the Joint Committee on the Financial Services and Markets Bill to scrutinise the delegated powers in that draft bill. In our submission to the Joint Committee we said that in principle we were happy to do similar pre-legislative scrutiny of delegated powers on future occasions. We said that "we can see some advantage to Parliament in our undertaking this work, since we scrutinise the delegated powers in all Government Bills, and are thus well placed to provide an overview of the use of such powers, and the appropriate level of parliamentary control for them."[2] Since then the Liaison Committee has reported on our involvement in pre-legislative scrutiny of delegated powers in the following terms:

"We welcome this development, and we hope that the example may be followed in future. When a draft bill is made available for pre-legislative scrutiny, it can only be beneficial for the delegated powers to be subject to scrutiny at an early stage."[3]

5.  The Home Office consultation paper on Freedom of Information referred to the fact that the Bill would be subject to scrutiny by this Committee,[4] in addition to the Select Committee on Public Administration in the House of Commons. The Draft Bill is also being scrutinised by a Select Committee in this House, chaired by Lord Archer of Sandwell.[5] In view of the tight timetable under which the two pre-legislative scrutiny Committees are working we thought that it would be for the convenience of these Committees if we published our report now, in the hope of assisting their further deliberations on the much wider issues in the draft Bill, which are outside the remit of our own Committee.

DELEGATED POWERS

6.  The draft bill and explanatory notes are printed at the back of the Consultation Document. As there is at present no memorandum justifying the delegated powers in the bill the Committee lists these powers here. We comment only on those powers which raise particular issues for the pre-legislative scrutiny Committees to consider.

7.  There are powers in clauses 2, 9(3), 10(3), 12, 14(7), 36, 61(2) (in new section 9A(5)), 65 and 72(3) (commencement, not subject to Parliamentary control).

HENRY VIII POWERS

8.  Clause 65(1) allows the Secretary of State to make an order repealing or amending any enactment which prevents the disclosure of information under the bill. Affirmative procedure is applied by clause 69(2). We regard this as appropriate.

9.  Clause 10(3) allows regulations to provide that any reference in subsection (1) to 40 days is to have effect as a reference to such other period "as may be specified in, or determined in accordance with, the regulations". The period is the time for compliance with a request for information to which the bill relates. While this does not involve textual amendment to the statute book, it is very similar to a Henry VIII power. Clause 69(3) requires regulations under clause 10 to be laid before Parliament after being made. The Committee can see no justification for excluding these regulations from the general provision that regulations under the bill are subject to negative procedure (clause 69(4)). Parliament will have set the time limit at 40 days if clause 10 is accepted and extending that limit (or, which is perhaps more disturbing, providing that the limit is to be determined in accordance with the regulations) must, in our view, require that Parliament has the opportunity to vote on the change. We recommend an amendment to apply affirmative procedure.

HYBRID INSTRUMENTS

10.  The concept of a hybrid instrument exists only in the House of Lords and not in the House of Commons. A hybrid instrument is a statutory instrument subject to affirmative Parliamentary approval containing provisions which, if contained in a public bill, would cause it to be hybrid. In other words, it affects specific private or local interests. Petitions against hybrid instruments may be presented to the House by those affected and are referred to the Hybrid Instruments Committee, which reports whether the petitioner has a locus standi and if so whether there ought to be a further inquiry by a select committee into all or any of the matters complained of.

11.  The Hybrid Instruments Committee has eight members. It last met in 1990. The infrequency of meetings reflects the fact that bills often include provisions to exempt instruments made under them from the hybrid instrument procedure. There is such an exclusion in clause 69(5) for instruments under clause 2.

12.  We consider that there is a sufficient justification for clause 69(5) and, in this instance, we see the exclusion as appropriate. An order under clause 2 designating further public authorities will require approval by both Houses (affirmative procedure is provided by clause 69(2)). The only consequence of allowing the instrument to go before the Hybrid Instruments Committee would be to allow the public authorities concerned to petition the House against the making of the order. We see no case for this.

INSTRUMENTS TO BE LAID BEFORE PARLIAMENT AFTER BEING MADE

13.  We have already referred to clause 10. There are other regulations under the bill which are also not subject to Parliamentary control but are required to be laid before Parliament after being made. These are:-

  • clause 9(3) - regulations about fees for requests for information;
  • clause 14(7) - regulations about fees for the provision of information of a kind where disclosure is at the discretion of the public authority.

14.  The Committee considers that regulations about fees could have a particular importance in the context of the provision of information, since fees could be calculated in a way that would deter enquiries. This is an area in which Parliament should properly exercise control. In the absence of any justification from the Department, the Committee can see no reason why these regulations should not be subject to negative procedure like other regulations under the bill. Furthermore, the Committee considers that it might make sense for all the necessary regulations to be combined in a single instrument.

CLAUSE 36

15.  Clause 36 provides that the Secretary of State may by order confer additional exemptions from the disclosure requirements of the bill. Clearly this is a significant power which will be viewed apprehensively by those who fear that the Establishment will have little enthusiasm for disclosure. We therefore considered it with especial care.

16.  Our view of the acceptability of this power has been influenced by two factors. First, the criteria for the use of the power are clearly set out in clause 36(2) of the draft bill:

"(2) The Secretary of State shall not make an order under this section (other than an order which removes or restricts an exemption previously conferred under this section) unless it appears to him that the public interest in conferring the additional exemption outweighs the public interest in allowing public access to the information."

Secondly, clause 36(6) requires the Secretary of State to consult the Information Commissioner before making an order.

17.  Despite the provisions outlined in the previous paragraph, the Committee has concerns about the apparent width of the power. We do not think it appropriate to delegate power to create new categories of exempt information which would be protected in all circumstances. But with the protection of subsections (2) and (6) and the affirmative procedure provided by clause 69(2) we believe it would be appropriate to delegate a power to create exemptions which are subject to the test that disclosure of the information would prejudice the public interest. We therefore recommend an appropriate amendment of clause 36.

COMMENCEMENT POWER

18.  The pre-legislative scrutiny Committees and the House as a whole will wish to note the arrangements for bringing into force the provisions of the bill. Subsection (2) of clause 72 brings a number of provisions into force on Royal Assent. Other provisions come into force five years later unless brought into force earlier by a commencement order under subsection (3) and subsection (5) requires the Secretary of State to report commencement progress annually to Parliament until all the provisions are in force. This Committee sees this as an encouraging innovation.

CODES OF PRACTICE

19.  Clause 38 requires the Secretary of State to issue a code of practice guiding public authorities on their practice when requested to provide information under the bill. Clause 39 requires the Lord Chancellor to issue a code of practice on the keeping, management and destruction of the records of public authorities and other bodies covered by the Public Records Act 1958. Both clauses require consultation about the contents of a proposed code and require any code to be laid before each House of Parliament. If the codes are regarded as a form of delegated legislation, the delegation appears to this Committee to be appropriate, as does the provision for Parliamentary control.

RECOMMENDATION

20.  While the substance of the bill is inevitably attracting controversy, the remit of this Committee is a limited one. We see the delegated powers as an appropriate delegation of power to make necessary supplementary provision. We recommend that the draft Bill be amended to provide Parliamentary control for clauses 9(3), 10(3) and 14(7), including the affirmative procedure for clause 10(3). We also recommend that the draft Bill should be amended to provide for a harm test for the use of the order-making power in clause 36.


1   Cm 4355, paragraph 2. Back

2   On that occasion, rather than publish our own report, we made our views in the form of a submission to the Joint Committee on the draft bill, which published our submission with its report. Back

3   Liaison Committee, 1st Report session 1998-99, ordered to be printed 31 March 1999, HL Paper 49. This report has since been agreed by the House as a whole. Back

4   Cm 4355, Paragraph 13. Back

5   Lord Archer of Sandwell is also a member of this Committee. Lord Dean of Harptree and Lord Goodhart are also members of the Select Committee on the draft Bill. Back


 
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