Select Committee on Delegated Powers and Deregulation Thirtieth Report


10 OCTOBER 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. This is a Private Member's Bill which would require the Government to devise a strategy about improving the well-being of those who find it difficult to pay for keeping their homes warm. It does not provide the Government with new powers but would require it to use existing powers. The bill does not require local authorities to give effect to the strategy but clause 2(5) requires the Secretary of State (and the Welsh Assembly) "to take such steps as are in its opinion necessary to implement the strategy". Clauses 2(2)(d) and (3) require the problem to be solved within 16 years of Royal Assent.

2. The only power to change the strategy is in clause 2(6)(b) and that is limited to revision to take account of progress made in achieving objectives and target dates. If a successor government believes it has been left an impossible task - or, indeed, that the objectives involve a welfare policy which is mistaken or unaffordable - it would be faced with only two options. The first would be fresh legislation, the second would be to use the power in clause 1(2) to make regulations which redefined the words "in fuel poverty" so as to make possible the task of implementing the inherited strategy.

3. It was neither the duty nor the wish of this Committee to criticise the policy underlying the bill, which has the potential to affect the 20 per cent of households which, according to the Government's own definition, currently suffer from fuel poverty (Q 37). Our role is to discuss delegated legislative powers and the parliamentary control provided for them. It followed that our discussion focused on Clause 1(2) of the bill.

4. Although this is a Private Member's Bill it is supported by the Government. Because of our concern about the delegated power we asked for oral as well as written evidence from the Department of the Environment, Transport and the Regions (DETR). This is printed in Annex 1 to this report.

5. The Committee also received written submissions from Age Concern, the Association for the Conservation of Energy, Tom Brake MP,[1] Friends of the Earth, HODIS (an Alliance of Housing Agencies and Voluntary Organisations of and for Disabled People) and NEA (the national energy action charity). All these submissions claimed that if the Committee recommended the amendment of the bill, the practical effect of this recommendation would be that the bill would be lost. These submissions are also printed in Annex 1 to this report. Some members of the Committee received a number of similar letters from individuals, all supporting the bill and expressing concern lest it be lost.


6. The representative of the DETR confirmed that regulations made under Clause 1(2) would be essential to the scope and implementation of the legislation, and that clause 1(2)(b) allowed the regulations to provide a different definition to that on the face of the primary legislation.[2] This could enable the Government to change its strategy.

7. The power of amendment given by clause 1(2) (made a Henry VIII power by clause 1(2)(b)) is at large and not confined to the period before the strategy is made.

8. We considered whether the bill contained so little detail that it was effectively a "skeleton bill". We concluded that Parliament had control over the general policy and that this was not a skeleton bill. It is, however, a bill which applies to a subject matter which can be widened or narrowed by regulations. This suggests to us that Parliament should have more control than the negative procedure proposed.

9. During the second reading debate in the House of Commons, when the bill (which has since been heavily amended) was welcomed by speakers on both sides of the House, the question of making regulations under it attracted concern by one speaker:

    A Government of either political party could produce regulations which fell short of what was necessary, for reasons of their own. Making the Bill subject to negative procedure does not give the House sufficient power to push the Government and make them think again. Will my hon. Friend consider whether it would be realistic to change it to an affirmative resolution so that the House can have greater control and more of a say in what the Government of the day may or may not want to do in those regulations?[3]

10. We were seriously concerned about the powers in clause 1(2) of the bill. While we accept that the powers in clause 1(2)(a) can be properly exercised by secondary legislation, they have very considerable cost and policy implications and we do not think that the negative resolution procedure is appropriate. The power in clause 1(2)(b) would enable a completely different definition of fuel poverty to be substituted for the existing definition. Since this definition is central to the bill, a fundamental change to the definition would turn the bill into something very different from what it is now. This is not something that should be done by secondary legislation.

11. It appeared from the evidence that the DETR was mainly concerned with a possible need to fine-tune the definition in the light of the responses to the Government's forthcoming consultation on a draft Fuel Poverty strategy. The DETR accepted, in oral evidence (Q 18), that it might be possible to alter clause 1(2) so as to confer a limited power to alter the definition of fuel poverty for the purpose of fine-tuning only. If this could be done, and subject to the affirmative resolution procedure being used, we would regard this as acceptable.


12. The scope of this bill is determined by the definition of living in fuel poverty, but it enables regulations, subject only to negative resolution procedure, to substitute a different definition. The Committee considers that Parliament cannot be confident that the bill will not be amended by regulation so as to apply to circumstances which are outside those contemplated by Parliament in approving the bill.

13. There is a difficulty for the House of Lords in considering Private Members' bills originating in the House of Commons this late in the parliamentary session. In the House of Commons, unlike the House of Lords, "private members' time" is strictly limited. House of Commons Standing Order No 14 provides for 13 Fridays on which private Members' bills have precedence over Government business.[4] There are no more such Fridays left this session. On rare occasions the Government provides some of its own time for the discussion of a private Member's bill in the House of Commons. This sometimes happens to enable discussion in the House of Commons of Lords amendments to private Members' bills received at a late stage of the session.[5] But at present, although the Government supports this bill, there is no guarantee that the Government will make some of its own time available for the discussion of any amendments made by the Lords to it in the House of Commons.

14. We have considered carefully the suggestion made to us during oral evidence and in the subsequent written submissions that amending a Private Members' Bill at this late stage in the session might lead to its failure, the assumption being that the House of Commons would decline to make parliamentary time available to consider the Lords amendments which would be involved (QQ 18-19, 39-40). We nevertheless felt it right to identify those recommendations which we would make if this were a government bill. All of these are of a technical and limited nature and should not take up much parliamentary time in either House.

15. If this were a Government bill we would make the following recommendations:

  • the bill should be amended to extend the ambit of clause 1(2)(a) so as to limit changes of definition to ones of fine-tuning in the light of changed technical considerations;
  • clause 1(2)(b) should be deleted;
  • the power in clause 1(2) should be made subject to the affirmative resolution procedure.

16. We recognise that the House will also have to consider the fact that this is a Private Member's Bill and that unless a small amount of Government time were to be provided in the Commons to consider any Lords amendments to it the bill would be likely to fall for lack of time. The bill clearly has widespread support and the potential to affect the well-being of very many people. It will therefore be for the House to decide what view to take if it considers that these amendments are appropriate but members are nevertheless told that the making of any amendment would kill the bill because there is no more time for private members bills in the House of Commons this session. If this were to be the case we consider that it would obviate the work of the House of Lords as a revising Chamber. We would, however, understand why, in the case of a benignly intentioned bill such as this, the House of Lords might feel compelled to stifle its protests and let the bill pass unamended.


17. We reported on this bill in our 20th report of this session.[6] The Government has now invited the Committee to consider its amendments for Report Stage and the Department of the Environment, Transport and the Regions has provided a memorandum discussing those amendments. This is printed in Annex 2 to this report. The amendments cover five topics, listed at paragraph 2(i) to (v) of the memorandum, but only those listed at paragraphs 2(i), (ii) and (v) had been tabled by 10 October, when the Committee met to consider them.

18. For the convenience of the House, the amendment references, where available, are as follows:

  • 2(i) bus lane enforcement - tabled on 9 October (HL Bill 113(d))
  • 2(ii) railways - on 5 October (HL Bill 113(b))
  • 2(iii) driver training - not yet tabled
  • 2(iv) streetworks - not yet tabled
  • 2(v) London bus service permits - tabled on 6 October (HL Bill 113(c))

19. The Committee thought that it would be for the convenience of the House if we were to report on the proposals in the memorandum even where the amendments were not yet available. Our comments on those amendments which have not yet been tabled are of necessity on the basis that the amendments when tabled do no more than give effect to the proposals in the memorandum.

20. None of the proposals outlined in the memorandum raises issues which the Committee wishes to draw to the attention of the House.


21. We reported on this bill in our 26th report of this session.[7] Clause 5 of the bill provides for the making of a compensation scheme for existing businesses. The scheme to be made by the Minister is to be made by order subject to negative procedure. Our understanding of the clause was that it gave the Minister a discretion whether or not to compensate "income" and that he had not decided whether to do so. We considered that the question of whether or not compensation should include loss of "income", which has important Human Rights implications, should not be left to ministerial discretion. We therefore recommended the amendment of clause 5 to make the Government's intentions clear.

22. The Ministry of Agriculture, Fisheries and Food has now confirmed, in a letter published in Annex 3 to this report, that ministers have decided that an amendment should be put forward at Lords' Committee stage to commit the Ministry to include loss of "income" in the compensation scheme. The Committee welcomes this response to our recommendation.[8]

1  Member of Parliament for Carshalton and Wallington and Liberal Democrat Shadow Environment Minister. Back
2  Oral evidence, QQ 7-8. Back
3  House of Commons Hansard 10 March 2000 col. 1304. This concern did not lead to the amendment of the bill in the Commons to provide for the affirmative resolution procedure. Back
4  Erskine May, 22nd edition (1997), p 270. Back
5  Government time was thus made available in the House of Commons on 19 and 20 March 1997. See Erskine May, p 280. Back
6  HL Paper 77. Back
7  HL Paper 96. Back
8  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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