Select Committee on Delegated Powers and Deregulation Twenty-Seventh Report


25 JULY 2000

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. Although the subject matter of this bill is controversial, the delegated legislative powers (with one exception) are not in themselves controversial. The exception is clause 52 "regulations as to emblems and flags" which is discussed below. Apart from commencement orders all delegated legislation under the bill is subject to negative procedure.

2. There are delegated legislative powers in clauses 5(1), 15(2), 26(c), 28(1), 41(3), 43(1), 44(1), 45(2), 46(3), 47, 49(2), 52(1) and (2), 62 (extension of existing power to make regulations under the Police (Northern Ireland) Act 1998), 64(6), 67(1), 69(2) (amendment of Police and Criminal Evidence (Northern Ireland) Act 1989) and 75 (commencement) and Schedules 1 (paragraphs 3(2), 7(13) and (14(1)) and 3 (paragraph 16). This report discusses only those provisions which the Committee considers might be of particular interest to the House. The remainder are provisions which the Committee sees as appropriate delegation and subject to appropriate Parliamentary control.

Clause 43

3. This clause provides that the Chief Constable may contract-out certain recruitment functions (these exclude the recruitment of senior officers and senior members of the police support staff). The Chief Constable will exercise this power in accordance with regulations made by the Secretary of State who is required to consult those persons or bodies listed in subsection (2) before making any regulations. The Committee sees this as appropriate delegation with appropriate Parliamentary control.

Clause 45

4. Clause 39 provides for the Chief Constable to appoint police trainees in accordance with regulations under clause 41(3). Subsection (1) of clause 45 requires him to do so by appointing on any occasion equal numbers of persons "who are treated as Roman Catholic" (see subsections (7) and (8) for an explanation of this term) and persons who are not so treated. Subsection (2) allows the Secretary of State to "amend subsection (1) in its application to the making of appointments under section 39 on any occasion specified in the order". Orders can only be made after consulting the Northern Ireland Policing Board and the Chief Constable. Presumably this power is needed in case there are insufficient qualified applicants from one community to allow the recruitment of the necessary number of officers. The power looks like a Henry VIII power ("amend subsection (1)") but it is not concerned with changes to the statute book, only with modifying it in relation to one recruitment round. Having considered the circumstances the Committee considers that the negative procedure provided is appropriate.

5. Subsection (3) makes similar provision in respect of appointments of support staff under clause 4. We see negative procedure as appropriate here also because the power relates to temporary provisions in respect of relatively minor powers.

Clause 46(3)

6. Clause 46(2) provides for the expiry of the exceptional "50:50 recruitment" measures after three years, and Clause 46(3) enables them to be renewed. The power is subject to the negative resolution procedure, and it is the only significant power in the bill which is not subject to a specific requirement for consultation.[1] This is a sensitive power, and we can see a strong case for amending the bill to provide for the affirmative procedure. If the Government would prefer, however, we would be content with the negative procedure provided it were accompanied by an obligation on the Secretary of State to report to Parliament before making an order.

Clause 49

7. This clause requires police officers to inform the Chief Constable if they are members of any of the organisations listed in subsection (1). Subsection (2) is a Henry VIII power allowing the Secretary of State to make an order (subject to negative procedure) amending subsection (1) by adding or removing an organisation or amending a reference to any organisation. The Committee considers that amending or removing an organisation is of such political importance that it should be done by affirmative instrument.

Clause 52

8. This clause allows the Secretary of State to make regulations about the design and use of an emblem and a flag for the police. Before making regulations he must consult the Board, the Chief Constable and the Police Associations. The Committee considers that these matters are of such political importance as to require the endorsement of Parliament by the application of affirmative procedure.

Schedule 1

9. This Schedule is concerned with the constitution, staff and procedures of the Northern Ireland Policing Board. Paragraph 3(1) provides that the Board shall consist of not less than 14 nor more than 19 members appointed by the Secretary of State. Paragraph 3(2) allows the Secretary of State to make an order amending either or both of those numbers. The Committee considers that the negative procedure provided is appropriate for this limited Henry VIII power.

Codes and Guidance

10. There are a number of provisions in the bill which allow the issuing of codes or guidance. In addition clause 24 allows the Secretary of State to determine the long term objectives for the policing of Northern Ireland. Subsection (3) of that clause requires the Secretary of State to lay before Parliament a statement of these objectives.

11. Clause 51 allows the Secretary of State to issue guidance as to the use of equipment for maintaining or restoring public order. Before issuing guidance he must consult the Board, the Chief Constable and the Police Association and must publish any guidance "in such manner as he thinks appropriate."

12. There are provisions about codes in clauses 19, 27, 50 and 69 and in paragraph 6(2) of Schedule 3. The codes under clauses 19 and 50 are issued by the Board while the other codes are issued by the Secretary of State. While these codes are important, the Committee have found it necessary to refer in detail in this Report only to clause 69. That clause inserts in the Police and Criminal Evidence (Northern Ireland) Order 1989 an Article concerned with the video recording of interviews. The inserted Article corresponds to the equivalent provision in the Police and Criminal Evidence Act 1984 and contains a power to make an order requiring the video-recording of interviews of persons suspected of the commission of criminal offences (or a specific description of offences).


13. The Committee considers that the great majority of powers in this bill are appropriately delegated and that the negative procedure provided is appropriate in most cases. We have made the following three recommendations:

  • affirmative procedure should be applied to the powers in clauses 49(2) and 52;
  • the power in Clause 46(3) should either be made subject to the affirmative procedure or accompanied by an obligation on the Secretary of State to report to Parliament.


14. This bill contains no delegated legislative powers.


15. The Committee reported on this bill in its 24th Report,[2] in which we made a number of substantive recommendations concerning the delegated powers. In our 26th Report[3] we reported on a Government amendment for Committee Stage.

16. The Department of the Environment, Transport and the Regions has submitted a further supplementary memorandum on further Government amendments for Committee stage. This is printed in Annex 2 to this Report. The Committee sees nothing in these amendments which it wishes to draw to the attention of the House because, where appropriate, the powers are made subject to the affirmative resolution procedure. The Committee has been informed that minor drafting amendments to these amendments are likely, but we understand that these will not change their substance.

17. The Committee has also received an interim Government response to the Committee's 24th report on this Bill. This is printed in Annex 3 to this report.


18. The Committee reported on this bill in its 10th Report,[4] when we said that there was nothing in the bill which we wished to draw to the attention of the House. We subsequently also reported on Government amendments to the Bill.

19. Following the Commons disagreement to a number of Lords amendments on 24 July the Commons has proposed a further amendment to the Bill relating to the powers of the Comptroller and Auditor General. This new order-making power would be subject to the affirmative resolution procedure, which we consider appropriate.[5]

1  Paragraph 2 of the memorandum by the Northern Ireland Office emphasises the importance of this consultation. Back
2  HL Paper 86. Back
3  HL Paper 96. Back
4  HL Paper 47. Back
5  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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