29 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.
POLITICAL PARTIES, ELECTIONS AND REFERENDUMS
1. This bill establishes an Electoral Commission;
makes further provision for the registration of political parties;
makes provision for the accounting and reporting of donations
by registered political parties; restricts those from whom parties
and others may accept donations; limits campaign expenditure by
registered parties and third parties; limits expenditure during
referendum campaigns and provides for shareholder consent for
company donations for political purposes. The provisions about
referendums would apply when other legislation provided for the
holding of a referendum.
2. There are two kinds of delegated powers in the
bill - those conferred on Ministers and the power to make regulations
conferred on the Electoral Commission established by Part I of
3. Clause 146 specifies the Parliamentary control
over the powers in the bill. (Regulations made by the Electoral
Commission are not within clause 146 but are the subject of paragraphs
21 to 23 of Schedule 1). Orders and regulations made by the Secretary
of State are subject to negative procedures except for those mentioned
in subsections (3) (those not subject to Parliamentary control)
and (4) (affirmative procedure). The Home Office memorandum states
that the Government intends to bring forward Committee Stage amendments
to extend affirmative procedure to the power under clause 65(1)
(which is extended by paragraph 15 of Schedule 6). The memorandum
states that the power under clause 104(6) is subject to negative
procedure and argues that this is appropriate; in fact clause
146(4)(d) applies affirmative procedure.
4. The Committee thought it might be for the convenience
of the House if it set out the following list of the powers in
the bill, since they are not indexed in the memorandum:-
Clauses 11(3), (6) and (9), 12(6), 15(6), 17(1) and
(3), 18(1), 21(5), 23(8)(c), 25(2)(f), 28(5), 38(2)(a), 39(6),
62(1), 65(1), 75(6), 91(6), 97(4), 98(4), 99(2), 103(3), 104(6),
115(4), 124(1), 145(1) and 151(2) and Schedules 1 (paragraph 14(8)),
3 (paragraphs 1(2), 6 and 8(2)), 5 (paragraphs 2(1)(b) and 7),
6 (paragraphs 9(4)(c) and 10(3)(d) and (4)(d)), 7 (paragraph 7),
10 (paragraph 9(3)(b) and 10(2)(d) and (3)(d)), 12 (paragraph
7), 13 (paragraph 3), 14(paragraphs 9(3)(b) and 10(2)(d) and 3(d)),
15 (paragraphs 9(1)(d) and 10(2)(d) and (3)(d)) and 17 (paragraph
5. This report does not comment on all these powers
- those the Committee does not discuss it sees as appropriate
delegation of procedural or supplementary detail - but rather
draws attention to the most significant points.
6. Clause 62 allows the Secretary of State to apply
the requirements in Part IV of the bill about weekly donation
reports in connection with general elections to one or more of
the elections listed in subsection (2). The order may apply those
provisions with modifications. He is required to consult the Electoral
7. Clause 97(4) allows the Secretary of State to
apply the provisions in the bill about referendums to referendums
proposed in future bills so that the preparations for holding
the referendum can begin before the bill is passed.
8. Clause 105 provides for assistance from public
funds for a designated organisation campaigning for a particular
result in a referendum. Clause 103 provides for the Commission
to designate organisations to whom this assistance may be given.
When there are only two possible outcomes from the referendum
the Commission may designate one organisation to campaign for
each. Where there may be more than two outcomes, clause 103(3)
allows the Secretary of State to specify those outcomes so allowing
the Commission to designate more than two organisations to qualify
9. Clause 104 deals with applications to the Commission
from organisations which wish to be designated under clause 103.
Subsections (2)(b) and (3) specify the time limits for applications
and decisions by the Commission. Subsection (6) allows the Secretary
of State to change those time limits by order in relation to a
10. Clause 124 allows the Secretary of State to make
orders regulating the conduct of referendums. He is required to
consult the Commission by subsection (4). An order may create
offences (and, by implication, provide for the mode of trial and
11. Schedule 7 contains detailed provisions about
what counts as qualifying expenses for the purposes of the controls
on campaign expenditure imposed by the bill. Paragraph 7 is a
Henry VIII power allowing the amendment of Parts I and II of the
Schedule either to give effect to a recommendation of the Commission
or after the Secretary of State has consulted the Commission.
12. Schedule 12 makes provisions about qualifying
expenses in relation to referendums in terms very similar to those
of Schedule 7. Paragraph 7 of Schedule 12 is identical to paragraph
7 of Schedule 7.
13. Schedule 13 places limits on referendum expenses
by permitted participants. The financial limits set out in paragraph
2 apply when the referendum is conducted throughout the U.K. When
a referendum is held in a particular part of the U.K., the Secretary
of State is given power by paragraph 3 to specify by order the
relevant limits. Sub-paragraph (4) requires him to consult the
Commission and if he decides to make an order which is not in
accordance with the views of the Commission, he is required to
lay before Parliament when he lays his draft order a statement
of his reasons for disagreeing with the Commission.
ELECTORAL COMMISSION'S REGULATIONS
14. The Commission is established by clause 1 and
Schedule 1. The Commission has power to make regulations under
various provisions in the bill and paragraphs 21 to 23 of Schedule
1 set out the procedure for this.
15. The regulations are not statutory instruments
but must be printed and made available to the public. The Commission
may charge a reasonable fee for a copy of regulations. It is a
defence to an alleged breach of a regulation to show that at that
time the regulations had not been made available to the public.
16. The powers to make regulations are in clauses
38(2)(a), (3) and (4), 39(6) and (7), 75(6), 91(6) and 115(4)
and in Schedules 3 (paragraph 6), 5 (paragraph 7), 6 (paragraphs
9(4)(c)) and 10(3)(d) and (4)(d)), 10 (paragraphs 9(3) and 10(2)(d)
and (3)(d), 14 (paragraphs 9(3)(b) and 10(2)(d) and (3)(d)), 15
(paragraphs 9(1)(d) and 10(2)(d) and (3)(d)) and 17 (the new section
81(6) of the Representation of the People Act 1983 inserted by
paragraph 3(5)). Of these a number of powers are limited to prescribing
a form of return (clauses 75(6), 91(6) and 115(4) and paragraph
3(5) of Schedule 17). Others allow the Commission to require information
additional to that required by the bill to be provided in returns
- Schedules 3 (paragraph 6), 5 (paragraph 7), 6 paragraphs 9(4)(c)
and 10(3)(d) and (4)(d)), 10 (paragraphs 9(3)(b), 10(2)(d) and
(3)(d)), 14 (paragraphs 9(3)(b) and 10(2)(d) and (3)(d) and 15
(paragraphs 9(1)(d) and 10(2)(d) and (3)(d)). The remaining powers
are those in clauses 38 and 39.
17. Clause 38 requires the treasurer of a registered
party to prepare an annual statement of accounts. Regulations
will prescribe "requirements as to its form and contents".
Clause 39 requires accounts to be audited when income or expenditure
exceeds £250,000. Subsection (6) allows regulations to make
provision about the appointment etc. of auditors and their duties.
18. When the Committee undertook pre-legislative
scrutiny of the delegated powers in the draft Financial Services
and Markets Bill it considered anxiously the propriety of conferring
legislative powers on the FSA, as the exercise of those powers
would not be subject to Parliamentary control. The case for delegation
to the Commission has to be justified by its public nature and
its functions and the Committee sees nothing inappropriate in
the delegation proposed.
CODES OF PRACTICE
19. Paragraph 6 of Schedule 12 provides for the Commission
to prepare a code of practice giving guidance about expenses which
do, or do not, fall within Part I or II of that Schedule (direct
expenses and overheads qualifying as campaign expenditure). The
Secretary of State may approve the Commission's draft code (with
or without modification) and has then to lay a copy before both
Houses. If there are modifications, he has also to lay a statement
justifying them. If after 40 days neither House has resolved not
to approve the draft, he then issues the code which comes into
force on the date appointed by order made by the Secretary of
State. That order is subject to negative procedure.
20. Clause 74(5)(a) provides that it is a defence
to a charge under that clause (of incurring expenses in excess
of the limit imposed by Schedule 8) to show that there has been
compliance with the code of practice.
21. Paragraph 6 of Schedule 12 makes similar provision
for a code of practice giving guidance as to expenses which do
or do not fall within Part I or II of that Schedule (direct expenses
and overheads qualifying as referendum expenses).
22. Clause 113(3)(a) provides that it is a defence
to a charge under that clause (of incurring expenses in excess
of the limit imposed by Schedule 12) to show that there has been
compliance with the code of practice.
RULES OF COURT
23. Clause 53 allows the Commission to apply to a
court for the forfeiture of a donation made to a registered party
by an impermissible or unidentifiable donor. Clause 54 confers
a right of appeals against a forfeiture order. Clause 55(1) allows
rules of court to make procedural provisions for proceedings under
clauses 53 and 54.
24. This extension of existing powers to make rules
of court is not discussed in the Home Office memorandum, but it
is a common way of legislating and the Committee considered that
it raised no issues which it should draw to the attention of the
VARIATION OF SUMS SPECIFIED IN THE BILL
25. Clause 145 is a general power to vary any sum
specified in the bill (other than the limit on policy development
grants under clause 11 which can be varied under subsection (9)
of that clause and the limit on expenditure by the Commission
under clause 32 on assisting existing registered parties). If
the Secretary of State makes an order under clause 145 in consequence
of changes in the value of money, no Parliamentary procedure applies.
He can make an order in other circumstances only to give effect
to a recommendation of the Commission; in which case negative
procedure applies. While this is a Henry VIII power, the Committee
considers that negative procedure is appropriate even though the
power extends to varying the fines specified in Schedule 19.
OTHER HENRY VIII POWER SUBJECT TO NEGATIVE PROCEDURE
26. The Committee has already referred to the power
in clause 11(9) to vary the limit on policy development grants.
That Henry VIII power is subject to negative procedure, which
the Committee considers appropriate.
POWER NOT SUBJECT TO PARLIAMENTARY CONTROL
27. In addition to the commencement power in clause
151 and the power to vary sums specified in the bill in consequence
of changes in the value of money (clause 145(2)(a)) there are
two powers not subject to Parliamentary control. Clause 15(6)
provides that a Boundary Commission shall cease to exist when
the Secretary of State, being satisfied that the Commission has
no further functions to perform, by order so directs. Paragraph
14(7) of Schedule 1 allows the Secretary of State by order to
transfer to the Electoral Commission such property, rights and
liabilities as he considers appropriate in connection with the
establishment of the Commission.
28. The Committee considers it appropriate for these
powers not to be subject to Parliamentary control.
COMMISSION TO BE CONSULTED ABOUT CHANGES TO ELECTORAL
29. Clause 6 does not confer new powers but requires
the Commission to be consulted before regulations, orders or rules
are made under certain existing powers. Similarly clause 7 lists
functions which are to be exercised only on, and in accordance
with, a recommendation of the Commission. Subsection (3) of the
clause applies this restriction to three powers to make orders
and a power to make regulations. The Committee noted that among
the powers to which these clauses apply are section 17A(3) of
the Greater London Authority Act 1999 (free delivery of election
addresses) and section 76(2A) of the Representation of the people
Act 1983 (limitation of expenses in elections to the Greater London
30. The Committee welcomes the extent to which the
Commission is required to be consulted before these and other
regulations are made. This consideration has affected our overall
judgment that the powers to be granted under the bill are reasonable
and also that the level of parliamentary control to be provided
31. The Committee considers that no amendment is
necessary either to the delegated powers in the bill or to the
parliamentary control provided for these powers.
RACE RELATIONS (RELIGIOUS DISCRIMINATION)
32. This bill contains no delegated legislative powers.
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