Select Committee on Delegated Powers and Deregulation Eighth Report


EIGHTH REPORT



8 March 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.

Sexual Offences (Amendment) Bill

INTRODUCTION

1.  The bill reduces to 16 the age at which certain sexual acts are lawful but creates an offence of "abuse of position of trust" for the protection of persons under 18. "Position of trust" is defined in clause 4. Four "conditions" are set out in the clause stating when a person will be regarded to be in a position of trust. Subsection (2) relates to persons detained in an institution by authority of the law; subsection (3) relates to persons resident in children's homes or similar institutions; subsection (4) relates to persons being cared for in hospitals or similar institutions; and subsection (5) relates to persons receiving full time education in an institution. In each case the prohibition covers those who are regularly involved in caring for, training or supervising persons under 18.

Clause 4(1)

2.  In addition to the "conditions" specified in clause 4 there is also provision for an order under clause 4(1) to specify a "condition". If that condition is satisfied, the person is subject to the prohibition in clause 3(1). Such a condition would be additional to those conditions set out in the clause and there is no power to modify those. This is clearly a significant power to extend an offence in a controversial area. But the Committee can accept the reasoning of the Home Office in the memorandum that it may be necessary to extend these provisions for the protection of persons under 18 to cases not covered by clause 4(2) to (5). The power is made subject to affirmative procedure by clause 4(6), and the Committee considers that this provides the appropriate level of parliamentary control given the sensitive nature of the subject matter.

Other Powers

3.  There is a simple commencement power in clause 7.

Recommendation

4.  Although the subject matter of the bill is both sensitive and controversial, there is nothing in the delegated powers which the Committee wishes to draw to the attention of the House. [1]

European Communities (Amendment) BILL [HL]

INTRODUCTION

5.  This private Member's bill introduced by Lord Pearson of Rannoch repeals the provisions of the European Communities Act 1972 which provide powers for orders to be made for the "enforcement of Community rights and obligations in the United Kingdom" (side note to clause 1).

6.  There is a simple commencement power in clause 3(2), but this fails to provide for the commencement order to be made by statutory instrument. Clause 2 is a Henry VIII power.

Clause 2

7.  An order under this clause may "amend, modify, repeal or revoke any enactment to the extent [the Secretary of State] considers necessary or desirable in consequence of section 1." The power in clause 2 is made subject to negative procedure if the order has not been approved in draft by both Houses. This is the procedure under the 1972 Act.

Recommendation

8.  The Committee reports that the bill repeals provisions for the enforcement of Community rights and obligations in the U.K., provisions which will be needed while the U.K. remains a member of the Community; if the U.K. were to cease to be a member, there would certainly be a need for extensive consequential amendments and repeals and a power on the lines of that in clause 2 would be needed. The Committee sees the provisions for Parliamentary control as appropriate but notes that a commencement order under clause 3(2) is not made a statutory instrument.

Suspension Of Hospital Medical Practitioners BILL [HL]

INTRODUCTION

9.  This Private Member's Bill introduced by Baroness Knight of Collingtree contains one delegated power in addition to the simple commencement power in clause 6(2).

Clause 4

10.  The bill establishes an appeal body to hear appeals against suspension under clause 1. Clause 4(1) requires the appeal body to allow the appellant to appear and call witnesses and paragraph (a) allows him to appear by counsel or solicitor "or such other representative as may be prescribed by the appeal body". The Committee does not read "prescribed" as meaning more than "allowed" or "approved" on an ad hoc basis and, therefore, does not see it as conferring legislative power.

11.  Subsection (2) does confer such power. It allows "Regulations made by the Secretary of State" to provide procedures for "applications under section 1[2] and appeals under section 2" and to allow delegation of the functions of the Chief Executives under clauses 1 to 3. The bill fails to provide that the regulations are to be made by statutory instrument or to provide any form of Parliamentary control. The Committee considers that negative procedure would be appropriate.

Recommendation

12.  The Committee draws attention to the failure to provide that regulations under clause 4(2) are to be made by statutory instrument subject to negative procedure. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.

Financial Services And Markets Bill - Government Response

13.  In our seventh report of this session we reported on the Financial Services and Markets Bill. The Government has now responded positively to the recommendations we made in that report. For the convenience of the House at Committee stage this response is printed as an Annex to the present report.[3]


1   This is the view that the Committee took on the corresponding bill last session (9th Report, page 3). Back

2   There do not appear to be any such applications in the bill. Back

3   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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