Select Committee on Delegated Powers and Deregulation Fourth Report



FOURTH REPORT


9 FEBRUARY 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.

NORTHERN IRELAND BILL

INTRODUCTION

1.  This bill was introduced in the House of Commons on 4 February and had its first reading in the House of Lords yesterday, with a view to the bill finishing its parliamentary passage by the end of this week. Despite the special circumstances under which the bill has been introduced, and its expected speedy passage through Parliament, the Committee considers it important that the delegated powers contained in this - and any other - urgent legislation should be scrutinised no less thoroughly than bills which receive a more leisurely passage. We are therefore particularly grateful to the Northern Ireland Office for producing, at speed, its excellent memorandum on the bill. This is printed with this report. As has been the case with previous Northern Ireland Bills, we are making our report available to the House initially in typescript, as the second reading debate will take place today.

2.  The bill contains a number of "transitional" powers needed to provide for the transition from devolved government to direct rule and from direct rule to devolved government. There are powers in clauses 2(2), 5(1) and (2), 6 and 9 (commencement) and paragraphs 1(1) and (4) and 12(4)(b) of the Schedule. These powers are subject to affirmative procedure (with "urgency" arrangements for all but the power in paragraph 1(4) of the Schedule) except for the commencement power and the power in paragraph 12(4)(b of the Schedule which is subject to negative procedure. The department's memorandum gives a fuller account of the powers.

CLAUSE 2(2)

3.  Clause 1 suspends (from a date fixed by a commencement order) devolved government. Clause 2(2) allows an order made by the Secretary of State to restore devolved government. Before a restoration order can be made there must have been a review under the Belfast Agreement (subsection (1)). Clause 3 sets out the effect of restoration.

4.  As paragraph 6 of the memorandum states in explanation of the power in Clause 2, "it is right that Parliament should be given the opportunity to approve an order restoring devolved government, but equally right that the Secretary of State should be able to act in advance of parliamentary approval if it appears necessary to do so, for example during a parliamentary recess or if the Secretary of State judges a prompt resumption necessary for political reasons. Even so parliamentary approval would still have to be obtained if the order were not to cease to have effect." This power follows a well-established formula in emergency legislation of this kind, and the Committee is satisfied that it represents both appropriate delegation and that an appropriate level of parliamentary control is provided.

CLAUSE 4

5.  The power in clause 2(2) to make an order carries with it the power to revoke such an order. Clause 4 provides that revocation revives clause 1 and so suspends devolved government.

CLAUSE 5

6.  Subsection (1) provides that if, while clause 1 is in force, arrangement between the governments of the United Kingdom and Ireland require functions to be transferred to a Northern Ireland department, the Secretary of State must by order transfer those functions to the department.

7.  Subsection (2) provides that if, when a restoration order is made, such arrangements require functions of a Northern Ireland department to be transferred to an implementation body, the Secretary of State must make the transfer by order.

CLAUSE 6

8.  This confers power by order to make modifications of enactments which appear to the Secretary of State to be necessary or expedient in consequence of any provision made by, or under, the bill. The Committee agrees with the Department's analysis that "the power is a wide one; but it is necessary to make provision for changes that may be needed to all forms of legislation in consequence of suspension or restoration."[1]

CLAUSE 7

9.  This clause makes supplementary provisions in relation to orders made by the Secretary of State under the bill. Subsection (2) allows orders to include "consequential, supplemental or transitional" provisions. Subsection (3) applies negative procedure to the power under paragraph 12(4)(b) of the Schedule. Subsection (4) applies affirmative procedure to other orders (except commencement orders) made by the Secretary of State. Subsections (5) to (7) allow orders under clauses 2, 5 and 6 to be made and then presented to Parliament for approval in cases of urgency.

SCHEDULE

10.  Paragraph 1 allows legislation for Northern Ireland which would otherwise be made by Act of the Assembly to be made by Order in Council when clause 1 is in force. Paragraph 2 applies affirmative procedure (with an "urgency" adaptation). Paragraph 1(3) limits the power to legislate by Order in Council to the first six months of the suspension of delegated government. Paragraph 1(4) allows that period to be extended (by not more than 6 months at a time) by order made by the Secretary of State (clause 7 applies affirmative procedure but not the urgency procedure).

11.  The Department's memorandum explains that "the view has been taken that the power to legislate by Order in Council during the suspension period, rather than by Bill at Westminster, is the aspect of a suspension arrangement which should receive periodic scrutiny by Parliament."[2] The Committee agrees with this view, and notes with approval that renewal is to be more frequent than under the 1974 Act.

12.  Paragraph 12 requires certain accounts and reports to be laid before the House of Commons. These are accounts and reports which would be laid before the Assembly if it had not been suspended and "such accounts, reports and other documents as ... are prescribed by order of the Secretary of State" (paragraph 12(4)(b). Negative procedure is applied by paragraph 12(5).

RECOMMENDATION

13.  In spite of the importance of the subject matter, there is nothing in the bill which the Committee wishes to draw to the attention of the House.

REPRESENTATION OF THE PEOPLE BILL

INTRODUCTION

14.  This bill gives effect to the recommendations of the Working Party on Electoral Procedures which reported last year. The principal recommendation was to introduce "rolling" electoral registration, under which changes to the register may be made at any time, to replace the present system of annual registers based on residence on a single annual qualifying date.

15.  The department's memorandum identifies the delegated powers and gives a justification for each. Most of the powers are extensions to the regulation making powers in the Representation of the People Act 1983 and that Act provides that regulations made under it do not come into force unless and until approved by resolution of each House.

16.  This report lists the new powers but discusses only those which raise issues which the House may wish to consider.

POWERS

17.  There are delegated powers in clauses 4 (new section 7(3)), 5 (new section 7A(3)), 9(2) (new paragraphs 10, 10A, 10B and 11 substituted in or added to Schedule 2 to the 1983 Act) and (3), 10(1), 11(1), 13(2) and 16(3) and (4) (commencement) and in Schedules 1 (new sections 9(2), 10(4) and (7), 10A(1) and (5), 13(1), (2), (3) and (6) and 13A(1) and (2) of the 1983 Act and in paragraphs 15, 20 and 23 of the Schedule), 2(new sections 2(3) and 3(1), (5), (6) and (7)), 4 (paragraphs 3(1), (2) and (7), 4(1), (2), (3) and (4), 6(7) and 18)) and 5 (paragraphs 4, 9(3) and (4) and 10).

CLAUSE 10

18.  This clause allows the Secretary of State to make an order establishing a scheme in relation to particular local government elections held in a particular local authority area. These are "pilot schemes" to see if improvements can be achieved and the clause provides the procedure which begins with proposals from a local authority and ends with a report from the local authority assessing the success or failure of the scheme.

19.  An order under the clause is not subject to Parliamentary control and is not made as a statutory instrument. (Publication in the area concerned is dealt with in subsection (4) of the clause.) The memorandum argues that this informality is appropriate for an order affecting one election in a particular area. The Committee finds that argument persuasive.

CLAUSE 11

20.  This clause allows the Secretary of State to make permanent provision when he sees a pilot scheme as identifying a better way of conducting elections. An order under subsection (1) is subject to affirmative procedure (subsection (4)). An order may make provision with respect to -

  • parliamentary elections;
  • elections to -
    • the European Parliament
    • the Scottish Assembly
    • the National Assembly for Wales
    • the Northern Ireland Assembly; and
  • local elections in England, Wales or Northern Ireland. (See subsection (7).)

21.  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)).

22.  An order which applied to, say, England and Wales, with the exception of named areas would be a hybrid instrument but subsection (6) excludes the jurisdiction of the Hybrid Instruments Committee of this House. This is the third time in recent months that the Committee has considered a provision to exempt an instrument from the hybrid instruments procedure.[3] The Committee discussed the general issue of the need to retain a special procedure for hybrid instruments in its Special Report for 1998-99[4] (see paragraphs 49 to 52) and suggested that there was an issue for the House to consider as to whether there was still a need to make special provision for considering affirmative instruments which affect private or local interests. Whatever view the House takes on the general issue, in the Committee's view this seems a proper case for excluding the procedure.

23.  The Committee noted that the Secretary of State has to lay before Parliament together with the draft order a copy of the report (or reports) he has received assessing the success of the corresponding pilot scheme (or schemes) - see subsection (5).

24.  The scope of an order is, in effect, defined by clause 10(2). Thus an order could not affect eligibility to vote but could, in theory at least, affect the secrecy of the ballot.

25.   The explanatory notes describe Clause 11 as being "concerned with the rolling out of innovations that have been successfully piloted."[5] The implication of paragraphs 15-17 of the Home Office's explanatory memorandum, printed with this report, would appear to be that the power will only be used for elections in the category which has been tested in the pilot and is covered by the report. We would find such a power acceptable. But the bill itself provides that the power extends very widely indeed, for example, for parliamentary elections when the pilot scheme related to local government elections. Such a power would be unacceptable to this Committee.

26.  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.

27.  We also note that the Political Parties, Elections and Referendums Bill at present before the House of Commons establishes an Electoral Commission and provides (in clause 6) for the Commission to be consulted on changes to electoral law. The requirement to consult the Commission does not include consultation about an order under clause 11 of this bill and we urge that it should so extend.

RECOMMENDATION

28.  The Committee has suggested that the bill should be amended to limit the significant power in clause 11 to change the way elections are conducted. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.

TRUSTEE BILL [HL]

INTRODUCTION

29.  This bill implements recommendations of the Law Commission and the Scottish Law Commission. In our March 1997 report on the proposal for the draft Deregulation (Trustee Investments) Order 1997 we observed that in the 26 years since the Trustee Investments Act 1961 was enacted there had been 21 Additional Powers Orders made under it, extending the range of authorised trustee investments. We looked forward to what we described as the "long-overdue reform of trustee investment law."[6] We therefore welcome the present bill.

30.  The principal change will be the creation of wider powers of investment. There are few delegated powers in the bill and these are discussed in the Department's memorandum. We comment on two of the powers.

CLAUSE 30

31.  This clause allows the Secretary of State to make regulations providing "for the remuneration of trustees of charitable trusts". The Explanatory Notes explain (paragraph 107) that the Law Commission concluded that there was a strong case for including charitable trustees in clause 29 (remuneration of certain trustees) but that further consultation was needed. If consultation led to agreement that "charitable trustees should be able to be paid in like manner to trustees generally", it would require primary legislation to achieve that unless powers were taken in the bill. Clause 30 gives these powers.

32.  The difficulty with this argument is that clause 29 is confined to trust corporations and trustees who act for the trust in a professional capacity. Clause 30 is not so limited. It "includes" power to remunerate persons in certain categories but is also wide enough to allow regulations to provide remuneration for lay trustees. This would be a very radical new power.

33.  The Law Commissions' report on the draft bill[7] notes that "although clause 30 does not constrain the power of the Secretary of State as to the content of regulations made in pursuance of the power, it is likely that any such regulations (if made) would be in similar form to clause 29, with such modifications as may be appropriate. For example, it is likely that the requirement for consent in clause 29(2) would be modified so that only the agreement of a majority of the trustees of a charity would be required to the remuneration of one or more of their number."

34.  The Committee can see no reason why trustees should receive any payment for acting as trustees as distinct from acting in a professional capacity for the charity. The memorandum suggests the regulations will look very much like clause 29. The House may wish to consider amending the bill to provide that the power is limited to trust corporations and members of professions. If the bill is amended in this way, the Committee considers that the negative procedure provided is appropriate.

CLAUSE 41

35.  This is a Henry VIII power to make "such amendments of any Act ... as appear to [the Minister] appropriate in consequence of or in connection with Part II or III" of the bill. The Explanatory Notes state (paragraph 128) that the power is needed, in particular, in respect of local and private legislation which contains provisions referring to the Trustee Investments Act 1961, and there is a fuller explanation in paragraphs 5 to 11 of the memorandum. The power is limited to the area covered by Parts I and II which deal with powers of investment and acquisition of land. With this limitation the Committee sees negative procedure (subsection (4)) as appropriate.

RECOMMENDATION

36.  The Committee has suggested that the House may wish to consider amending the bill to provide that regulations under clause 30 will be concerned only with trust corporations and members of professions. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.

DEAFBLIND PERSONS BILL [HL]

37.  There is one power in this Private Member's Bill. Clause 4 amends the Chronically Sick and Disabled Persons Act 1970 to add a requirement to make provision for deafblind link services for deafblind persons. "Deafblind link service" is defined in clause 5 as the provision of "one-to-one support workers of a description prescribed by regulations" to give assistance to a deafblind person. Regulations are subject to negative procedure.

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

COPYRIGHT AND TRADE MARKS BILL [HL]

DISQUALIFICATIONS BILL

CHEQUES (SCOTLAND) BILL [HL]

39.  These bills contain no delegated legislative powers.[8]


1  Department's memorandum, paragraph 12. Back
2  Department's memorandum, paragraph 19. Back
3  The other occasions were in connection with the Draft Freedom of Information Bill (21st report, 1998-99) and the Local Government Bill [HL] in the present session (2nd report, 1999-2000, HL Paper 16). Back
4  HL Paper 112. Back
5  Paragraph 72 of the explanatory notes. Back
6  21st report 1996-97, HL Paper 70, paragraph 78. Although we had reported favourably on this deregulation proposal before the general election it has not been proceeded with. Back
7  Trustees' Powers and Duties (Law Com No 260, Scot Law Com no 172). Back
8  This report is also published on the Internet at the House of Lords Select Committee Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back

 
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