Select Committee on Delegated Powers and Deregulation Thirty-Seventh Report


SPECIAL REPORT FOR 1999-2000 - THE COMMITTEE'S WORK

PART 3: DELEGATED POWERS: THE WORK OF THE COMMITTEE

22. We take evidence in writing on each bill from the relevant Government department, including the departments responsible for the subject matter covered by private members' bills. Most departments submit their memorandum automatically, without waiting to be invited to do so. The memorandum gives a concise account of the bill, and in particular-

    identifies provisions for delegated legislation;

    describes their purpose;

    explains why the matter has been left to delegated legislation;

    explains the degree of parliamentary control provided for the exercise of each power (affirmative, negative, or none at all) and why.

23. We make the memorandum available to the House by printing it with our report on the Bill.

24. The memorandum is produced for all Government bills except Supply Bills, which the Lords are debarred from amending and on which the Committee does not therefore report. The Committee does not consider consolidation bills because they do not seek to introduce new law.

25. The memorandum is normally submitted a few days after the bill's First Reading in the House of Lords. The memoranda we receive are usually of a very high standard. We believe that these memoranda are not only useful to the House, but may help the executive also, as those writing them are required to justify each new power sought, and the level of parliamentary control provided for it.

26. The sooner the memorandum is submitted, the easier is the Committee's task, because the deadline for the Committee's report is tight. If its report is to be of most use, the Committee must report in good time before committee stage, which is normally two weeks after Second Reading. The Committee has therefore about 8-10 working days to consider the bill and memorandum and to report. The Committee has always managed to report on any matters which it considered should be drawn to the House's attention before committee stage. The sooner the Committee reports the better: both Government and Opposition find it helpful to know what the Committee's views are; there is more time for amendments based on the Committee's recommendations to be tabled; time can be saved by avoiding the tabling of unnecessary amendments; and there is greater freedom of debate at committee stage than at other stages.

27. In examining a bill we look to see whether the grant of secondary power is appropriate. This includes expressing a view on whether the changes which could be made under the power are so important that they should be made only by primary legislation. This is probably an area of growing significance, not least in the light of devolution, because there is likely to be pressure from the Welsh Assembly to increase its powers by extending the matters left to delegated legislation. Our examination 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 go on to consider whether the legislation should provide for consultation in draft form before the instrument is laid before Parliament. We consider what form of parliamentary control is appropriate and, in particular, whether the proposed power calls for the affirmative procedure. We have also regarded secondary powers as potentially embracing the power of the Minister to make provision by Code or the issuing of guidance.

28. In the Healthcare Services Bill [HL] this session we considered a power to determine a fee to accompany an application for a licence for premises, which was not subject to Parliamentary control but was simply left for the Secretary of State to determine. We considered that this was a legislative power which should be exercised by making regulations subject to negative procedure.[21]

29. When the Committee makes a recommendation which, if accepted by the House, would lead to an amendment, the Committee's report is cited in an italic note in the second half of the minute when the bill is put down for its Committee stage, thereby alerting members of the House to the recommendation. An italic note is also used for Committee and later stages when we have issued a further report, either on Government amendments or printing a Government response.

30. The Committee sees its role as one of advising the House; and recognises that it is for the House to decide whether or not to act on the Committee's advice. The Committee itself has no power to amend bills, but its advice has almost always been accepted by the Government and the House.

WHAT IS "INAPPROPRIATE DELEGATION"?

31. The first part of the Committee's terms of reference requires us "to report whether the provisions of any bill inappropriately delegate legislative power". Parliament has never defined what "inappropriate delegation" is.[22] The question is left to be decided on a case by case basis by the Parliamentary draftsman for the bill concerned, whose view is then subject to the approval or otherwise of Parliament. The Joint Committee on Delegated Legislation in 1972[23] - the Brooke report - defined delegated legislation in the following terms:

    "Delegated legislation covers every exercise of a power to legislate conferred by or under an Act of Parliament or which is given the force of law by virtue of an Act of Parliament."[24]

32. The Brooke report went on to quote the 1932 report of the Donoughmore Committee,[25] which found that:

    "legislative powers are freely delegated by Parliament without the members of the two Houses fully realising what is being done".[26]

33. But the Brooke Committee made no attempt to define what the limits of delegation should be.

34. Our counterpart Committee in the Australian Senate, the Senate Standing Committee for the Scrutiny of Bills, is also tasked with drawing the attention of its House of Parliament to occasions when Parliament's power may have been delegated inappropriately. That Committee has suggested the following examples of where legislation contains provisions which inappropriately delegate legislative power.

    "(a) It may enable subordinate legislation to amend an Act of Parliament.[27]

    (b) It may provide that matters that should be regulated by Parliament are to be dealt with by subordinate legislation.

    (c) It may provide that a levy or a charge be set by regulation.

    (d) It may give to the executive the unfettered control over whether and when an Act passed by Parliament should come into force."[28]

It will be apparent that different views are taken at Westminster on some of these tests of unsuitability but this demonstrates that the suitability of delegating a particular legislative power has to be judged in the context of the Parliamentary process and against the background of earlier legislation.

35. In January 1993 the Government set out the following criteria for deciding whether subordinate legislation was appropriate in any particular case (in paragraph 4.4 of the Government's Memorandum to the Committee, appended to the Committee's first ever report):

  • to ensure flexibility in responding to changing circumstances, and provide a measure of ability to make changes quickly in the light of experience without the need for primary legislation;
  • to allow detailed administrative arrangements to be set up and kept up-to-date within the basic structures and principles set out in the primary legislation.

36. Clearly when Parliament has to decide when delegation is, and is not, appropriate there is a need for flexibility to enable alteration to be made by delegated legislation in the light of changed circumstances. Nevertheless, our consideration of provisions in recent years has led us to conclude that there are certain matters which should not be left to delegation. These include: [29]

  • provisions designed to ensure that legislation is clearly compatible with the European Convention on Human Rights. In our view these should not normally be left either to implication or to secondary legislation but should be included on the face of the bill;[30]
  • substantial changes to electoral law;[31]
  • the power to increase the severity of a sentencing power.[32]

CASE STUDY ONE: THE REPRESENTATION OF THE PEOPLE BILL

37. This bill, on which we reported in our 4th report,[33] gave effect to the recommendations of the Working Party on Electoral Procedures which reported in 1999. Clause 11 allowed the Secretary of State to make permanent provision when he saw a pilot scheme as identifying a better way of conducting elections. An order under subsection (1) was subject to affirmative procedure (subsection (4)), and might make provision with respect to:-

    (a)  parliamentary elections;

    (b)  elections to -

      (i)  the European Parliament;
      (ii)  the Scottish Assembly;
      (iii)  the National Assembly for Wales
      (iv)  the Northern Ireland Assembly; and

    (c)  local elections in England, Wales or Northern Ireland.

38. An order must relate to the whole of the UK unless it is concerned with elections which are held only in a particular part of the UK, in which case the order must relate to the whole of that part. There is an exception for local elections where the order may exclude any area specified in the order (subsection (3)).

39. Clause 11 was "concerned with the rolling out of innovations that have been successfully piloted." The bill provided that the power extended very widely indeed, for example, for parliamentary elections when the pilot scheme related to local government elections. We reported in the following terms that such a power would be unacceptable to this Committee:

    "The issue of where, when and how people vote is a matter of great importance. The House may wish to consider amending the bill to limit the power so that it extends only to elections in the category in which the pilot was conducted and covered by the report, namely local government. The affirmative procedure provided would be the appropriate level of parliamentary control for this more limited power."

40. This issue was discussed on the floor of the House in Committee, at Report and on Third Reading. In accepting the Committee's recommendations at Report stage, Lord Bassam of Brighton, the Home Office Minister, eloquently expressed the Government's response in the following terms:

    "We pay particular attention to the reports of the Select Committee on Delegated Powers and Deregulation. As your Lordships have pointed out, it is an important committee and its suggestions should be disregarded only in the most exceptional of circumstances. On reflection, we do not believe that this is the most exceptional of circumstances.

    Accordingly, I can advise your Lordships that we shall be bringing forward government amendments to Clause 11 at Third Reading. The effect of the amendments will be to limit the power to roll out successful innovations only to local government elections. That is in line with the recommendation of the Delegated Powers and Deregulation Committee. That power will be subject to the affirmative resolution procedure."[34]

41. We welcome the Minister's positive response to our recommendations,[35] which he announced at an early stage in the debate, thereby saving time which the House might otherwise have spent debating a point which the Government had decided to concede.

CASE STUDY TWO: THE CRIMINAL JUSTICE AND COURT SERVICES BILL

42. Our report on the Criminal Justice and Court Services Bill[36] made a number of recommendations. In this special report we draw attention only to those which raised the question of inappropriate delegation of power. In this connection the Committee drew the attention of the House to the important powers in clauses 41, 42, 45 and 46.

43. Clause 41 created a new power to make exclusion orders. That clause inserted three sections in the 2000 Act and the last of those created two new powers. Section 40C(2) was a Henry VIII provision which conferred power by order to direct that section 40A(1) "shall have effect with the substitution, for the period there specified of such period as may be specified in the order" or "that subsection (5) ... shall have effect with such additional restrictions as may be so specified". These restrictions were restrictions on the discretion of the court when sentencing an offender and the addition of a restriction could not prejudice an offender. However, substituting a different period could allow exclusion orders to remain in force for more than the year provided in the bill. The Committee saw no difficulty with the power to add restrictions but considered that it was inappropriate for Parliament to delegate the power to increase the severity of a sentencing power.

44. We discussed our concerns in oral evidence with the Home Office. In doing so we bore in mind the following points. In the bill itself Parliament was being asked to consider the maximum length of sentence, and it is right and proper for Parliament to consider such sentencing issues. We asked if there were a precedent for a power to increase the length of a sentence by secondary legislation. The Home Office identified two precedents (sections 45 and 50 of the Powers of Criminal Courts (Sentencing) Act 2000) but they readily admitted that these were not an exact parallel (Q 9). In so far as precedents do exist they date from before the establishment of this Committee, and so this issue had not come before us before. The Home Office emphasised that the sentence under consideration was a significant one: "an exclusion order is capable of having a majorly intrusive effect on an offender's life" (Q 19). Moreover, the sentence was not only novel - "a brand new community order" (Q 18) - but in the nature of an experiment, which might take at least two years to evaluate (QQ 29-30).

45. We considered that, in principle, the length of a sentence should not be extended by secondary legislation, and that this order-making power should be deleted from the bill. We reported in the following terms:

    "If, contrary to our view, the House thinks otherwise, then clearly the power should be made subject to affirmative procedure as are sections 45 and 50 of the Act of 2000 to which we have referred."

46. In our view similar considerations applied to section 58B(4) inserted in the 2000 Act by clause 42. Section 58B(4) allowed the amendment of the maximum and minimum periods specified in section 58A for the length of a drug abstinence order. Again the Committee questioned whether it was appropriate to delegate a power to increase the severity of a sentencing power. The Home Office's Supplementary Memorandum explained that the affirmative procedure was considered necessary because "drug testing is very intrusive and places offenders at the discretion of an officer for large periods of time. We consider it is important that Parliament has the opportunity to debate the necessity for changes to the maximum or minimum periods of the order." In oral evidence the Home Office also referred to the fact that the power raised questions in relation to Article 8 of the European Convention on Human Rights: "it is incredibly important that any order of this kind, which subjects a person to a liability to be tested, essentially at the discretion of the responsible officer - that is a crucial difference with, for example, curfew and exclusion orders - is an intrusion into a person's private life. It is very important that the intrusion be a necessary and proportionate measure in relation to dealing with crime" (Q 11). The Committee considered that this area of sentencing policy was so sensitive, and so experimental, that the order-making power should be deleted from the bill.

47. Clause 45 allowed the addition of curfew requirements to community sentences. Paragraph 7(2) inserted in Schedule 2 to the 2000 Act places two limits on this power - the curfew requirement could not last longer than six months and could not impose a curfew of less than two hours or more than 12 hours in any day. Paragraph 7(9)(a) allowed different periods to be substituted by order in paragraph 7(2). As this could extend the length of the order or the daily curfew, it allowed an increase in the severity of the sentence and the Committee again questioned whether this was an appropriate delegation. As with sections 40C(2) and 54B(4), the Committee suggested that if the power were to remain in the bill, affirmative procedure should apply.

48. Clause 46 allowed exclusion requirements to be added to community rehabilitation orders. Paragraph 8(1), added by the clause to Schedule 2 to the 2000 Act, limited the life of an exclusion requirement to one year. Paragraph 8(8)(a) allowed this period to be altered. The Committee questioned whether it was appropriate to delegate a power which could increase the severity of a sentencing power.

49. At Committee stage the Government responded[37] by tabling amendments to provide for the affirmative resolution procedure in relation to each of these powers. Both at Committee and Report stage the Committee's report was debated at some length on the floor of the House, where there was clearly disquiet about the delegation of these powers and the use of a Henry VIII provision in such an important and delicate area. Unusually, however, the Government initially resisted the Committee's main recommendations on this bill.

50. We were therefore pleased when, at Third Reading, the Government conceded this point of principle when it accepted the thrust of a series of Opposition amendments concerned with it. The amendments left out the relevant powers. In announcing the Government's decision - which he did, helpfully, at an early stage in the Third Reading debate - Lord Williams of Mostyn, the Attorney General, outlined the further action which the Government intended to take in the House of Commons:[38]

    "The Government are prepared to accept the amendments for the reasons deployed on previous occasions - not in their entirety but in their principle thrust. However, I must make it plain that we looked to flexibility to amend the maximum length of exclusion orders and conditions in case a year was shown to be insufficient.

    The amendments would require primary legislation and therefore, so that your Lordships are not misled, we propose in another place to extend the maximum duration of both an exclusion order and an exclusion condition of a community order to two years. That gives the court the power which I think your Lordships thought was more appropriate than executive decision, even by affirmative procedure on secondary legislation.

    Secondly, the amendments take away the power of the Secretary of State to add to the list of those areas of the offender's private life with which exclusion and curfew should not conflict or interfere. The list may be required to be added to. It was not one of the concerns of the Delegated Powers and Deregulation Committee but in another place we shall seek to reinstate those powers which do not go to the principled point."[39]

51. There are few subjects which are never appropriate for delegated legislation. But we consider, as a matter of principle, that it is inappropriate for Parliament to delegate the power to increase the severity of a sentencing power,[40] for the following reasons:

  • such a power relates to the liberty of the subject, and as such should be reserved to Parliament itself;
  • although the Government initially argued that the power was needed to avoid the need to wait for primary legislation, sentencing policy is not something that should be changed without adequate time for reflection, which the discipline of the parliamentary timetable provides.

We regard the Government's decision to introduce the amendments as a wholly appropriate reflection of this principle.

DELEGATED POWERS IN COMMONS PRIVATE MEMBERS' BILLS

CASE STUDY THREE: THE WARM HOMES AND ENERGY CONSERVATION BILL

52. The scope of the Warm Homes and Energy Conservation Bill - a Private Members' bill originating in the House of Commons - was determined by the definition of fuel poverty, but it enabled regulations, subject only to negative resolution procedure, to substitute a different definition. The Committee considered that Parliament could not be confident that the bill would not be amended by regulation so as to apply to circumstances which were outside those contemplated by Parliament in approving the bill.

53. There is a difficulty for the House of Lords in considering Private Members' bills originating in the House of Commons 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.[41] By the time the Warm Homes and Energy Conservation Bill reached the House of Lords, there were no more such Fridays left in the present 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.[42] But at the time that the Committee reported on the bill, although the Government supported this bill there was no guarantee that the Government would make some of its own time available in the House of Commons for the discussion of any amendments made by the Lords.

54. We considered carefully the suggestion made to us during oral evidence and in the subsequent written submissions that amending a Private Members' bill at such a 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 were of a technical and limited nature and should not take up much parliamentary time in either House.

55. We accordingly reported on the bill in the following terms:

    "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.

    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."[43]

56. The dilemma for the House of Lords which such a travesty of parliamentary scrutiny poses was debated fully during the second reading debate on 13 October 2000, when the Committee's report was frequently quoted.[44] In moving the motion for the second reading of the bill Lord McColl of Dulwich summarised the problem in the following way:

    "I know that in an ideal world the Delegated Powers and Deregulation Committee would wish this House to go further. The committee recommends that, were the Bill a government Bill, it should be amended to narrow the scope of any future definition. However, it recognises the specific difficulty with the Bill, which is that it is a Private Member's Bill and there is now no further time set aside for the Commons to consider any amendments we may make. As such, any amendments we make could cause the Bill to fail to become law. That risk was set out clearly to the committee by the DETR representatives, and the committee took it very seriously."[45]

57. We recommend that the Procedure Committee should consider the problems created when Commons Private Members' bills arrive in the House of Lords late in the session, and whether it is right that the House of Lords should effectively be denied the right to amend such bills.


21   3rd report 1999-2000, HL Paper 23. Back

22   In 1991, when the possibility of setting up the Delegated Powers Scrutiny Committee was being discussed, Lord Waddington, then Leader of the House and Lord Privy Seal, said that "there would have to be the most detailed study and discussion as to what should be the limits of delegated legislation, and then the job of the committee would be to see that one always did stay within limits and not outside them." Report from the Select Committee on the Committee Work of the House, HL Paper 35-II (session 1991-92). Back

23   The "Brooke Report", ordered to be printed 3 August 1972; HL Paper 184 (session 1971-72); HC 475. Back

24   Op cit, paragraph 6. Back

25   The Donoughmore Committee was appointed "to consider the powers exercised by or under the direction of (or by persons or bodies appointed specially by) Ministers of the Crown by way of (a) delegated legislation and (b) judicial or quasi-judicial decision, and to report what safeguards are desirable or necessary to secure the constitutional principles of the sovereignty of Parliament and the supremacy of the Law." Back

26   Op cit, paragraph 16. Back

27   In our own reports we refer to such provisions as "Henry VIII powers". Back

28   Australian Senate Standing Committee for the Scrutiny of Bills, The Work of the Committee during the 37th Parliament May 1993-March 1996 (June 1997), 58. Back

29   Other matters we have discussed in previous sessions have included the setting up of quasi-judicial institutions, which we believe should, wherever possible, be provided for on the face of the relevant bill rather than being left to secondary legislation. Back

30   We enunciated this principle in our 7th report of session 1998-99, on the Health Bill [HL], HL Paper 29. In connection with the significant investigatory powers in the Regulation of Investigatory Powers Bill in the present session the Committee said that it could "see no justification for the use of language which is apparently at large but which is intended to be limited in practice by the Human Rights Act. In its view, if these powers are to remain in the bill they should be explicitly limited on the face of the bill to the protection of morals and the protection of the rights and freedom of others. They should also be made subject to the affirmative resolution procedure." (18th report 1999-2000, HL Paper 73). Back

31   See the section on the Representation of the People Bill below. Back

32   See the section on the Criminal Justice and Court Services Bill below. Back

33   4th report 1999-2000, HL Paper 29. Back

34   House of Lords Hansard, 29 February 2000, col. 513. Back

35   He also made a further commitment in respect of another recommendation we made in connection with this Bill and a related issue in the Political Parties, Elections and Referendums Bill. Back

36   22nd report 1999-2000, HL Paper 83. Back

37   This response was printed in the Committee's 25th report 1999-2000, HL Paper 90. Back

38   The House of Commons agreed the Government amendments in lieu of the relevant Lords amendments on 14 November 2000, after a further debate on the importance of reserving to Parliament the setting of maximum sentencing lengths; see House of Commons Hansard, 14 November 2000, cols. 891-895. Back

39   House of Lords Hansard, 8 November 2000, cols. 1547-1548. Back

40   We exclude from this generalisation the updating of fines in line with inflation. Back

41   Erskine May, 22nd edition (1997), p 270. Back

42   Government time was thus made available in the House of Commons on 19 and 20 March 1997. See Erskine May, p 280. Back

43   30th report 1999-2000, HL Paper 107. Back

44   House of Lords Hansard, 13 October 2000, cols. 617-636. Back

45   House of Lords Hansard, 13 October 2000, col. 619. Back


 
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