Select Committee on Delegated Powers and Deregulation Fourth Report



Memorandum by the Lord Chancellor's Department


1.  This memorandum identifies the provisions of the Bill which give powers for delegated legislation, and explains in each case the purpose of the power, the reason why the matter is to be left to delegated legislation, and the nature of and reason for the procedure selected.


Clause 11(3)(d): Power to prescribe functions, by order made by statutory instrument. Negative resolution.

2.  It would not be appropriate to extend to charity trustees the wide range of delegable powers that are to be extended to other trustees. The concept of 'charitable purposes' has been very widely interpreted by the courts, and certainly goes wider than the particular objects for which the charitable trust exists, and it is thus not appropriate to define charity trustees' powers of delegation in the wide terms used for other trusts, by reference to the notion of non-distributive functions. The need to restrict the powers of delegation to some sub-set of those being granted to other trustees makes it necessary to distinguish between the core functions which should be performed personally by the trustees and those which should be delegable. It is therefore thought best to limit on the face of the Bill the functions which charitable trustees can delegate. The list of those functions is contained in clause 11(3)(a)-(c).

3.  The Charity Commission has power to extend dealings with charity property beyond the powers which would otherwise be available to the trustees, and that power can be used, on a case by case basis, inter alia, to extend powers of delegation. However, if it were to be found over time, for instance by the number of occasions on which the Charity Commission was invited to extend the powers in particular cases, that the list on the face of the Bill of those matters which charitable trustees ought to be able to delegate proved to be too restrictive, a power to add functions would be desirable. Given the limited nature of the power and the fact that its exercise would arise only after consultation, it is submitted that negative resolution procedure would be appropriate (clause 11(5)).

Clause 30: Power to make regulations to enable the remuneration of the trustees of charitable trusts. Negative resolution.

4.  It has long been accepted policy that charity trustees should not be able to charge for their services to the charity unless the constitution or the Charity Commission allows it. There is a sharp division between those who agree with this position and those who believe that there is no justification for distinguishing between the professional trustees of charities and of other trusts. There will need to be further consultation to settle the matter of whether, and if so, to what extent it would be appropriate to remunerate charitable trustees, and the Charity Commission has this in hand at present. Clause 30 would have no effect in advance of the resolution of that consultation. It is likely that the regulations under clause 30 would look very much like those in clause 29, but given that they would not be made without detailed consultation with all the interested parties, it is submitted that the negative resolution process would be appropriate.

Clause 41: Power to amend other Acts, by order made by statutory instrument. Negative resolution.

5.  This clause makes provision for a "Henry VIII" power. Subsection (1) gives a Minister of the Crown power to make such amendments to any Act, including an Act extending to places outside England and Wales, as appear to him to be appropriate in consequence of or in connection with Part II or Part III. The reason for the extension of the power to Acts which operate beyond England and Wales is that, where a provision has UK-wide application, it may be anomalous to amend it in relation to England and Wales but not otherwise.

6.  Subsection 2 provides that, before exercising the power in subsection 1 in relation to any local, personal or private Act, the Minister must consult any person who appears to him to be affected by any proposed amendment.

7.  Subsection (3) provides that an order under section 41 may (a) contain such transitional provisions and savings as the Minister thinks fit and (b) may make different provisions for different purposes.

8.  Subsection (4) make statutory instruments made under this section subject to negative resolution procedure in accordance with section 5(1) of the Statutory Instruments Act 1946.

9.  Schedule 2 to the Bill contains a number of consequential amendments to enactments arising, principally, from the supersession of a power to invest defined in terms of the Trustee Investments Act 1961 by the application of the general power of investment and/or the power to invest in land granted by Parts II and III of the Bill. Over many years, the statutory investment powers of many organisations which are not trusts have nonetheless been defined in terms of the default powers contained in the 1961 Act. Many of those are thought to be governed by local, personal or private Acts and so not all of them are amenable to identification by the usual methods such as LEXIS searches.

10.  The purpose of clause 41 is to allow those whose investment powers are governed by the 1961 Act but who would wish to take advantage of the new powers granted by this Bill to apply to the Minister to be enabled to do so by the amendment of their governing statute. The Minister will be required to consult anyone who seems to him to be likely to be affected by the proposed amendment of a local, personal or private Act.

11.  Given the requirement for the Minister to consult in the case of proposed amendment to local, personal or private Acts, and the fact that the powers to be granted under the new provisions by such an amendment are deregulatory, it is submitted that the negative resolution procedure is appropriate.

Clause 42: Commencement: No Parliamentary control.

12.  Clause 42(2) gives the Lord Chancellor power by order to appoint a day for bringing the Act into force and provides for different days to be appointed for different purposes. Clause 42(3) provides for an order made under clause 42(2) to contain such transitional provisions and savings as the Lord Chancellor considers appropriate. This allows a degree of flexibility in the implementation of the Act, so that, for example, solicitors and others who act as professional trustees or who provide advice to lay trustees may make appropriate arrangements with others associated with the trust.


13.  There are no amended powers in the Bill.

February 2000

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000