Select Committee on Delegated Powers and Deregulation Thirteenth Report


19 April 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.




1.  The bill deals with three separate and complex areas of legislation - indeed its contents could have been divided into three bills each of which would have been important. The subject matter of each of those bills would have been such that the use of extensive delegated powers would have been expected as it would have been common in earlier legislation of that kind. It is, therefore, not surprising that the bill contains a large number of powers.

2.  The Department's very full Memorandum lists all the powers, and provides a commentary on each. Paragraph 31 of the Memorandum explains the Government's approach to the order-making powers in this bill, in the following terms:

3.  In these circumstances the Committee has found it necessary to comment on only a few of these powers.

4.  We understand that Government amendments containing further delegated powers will be tabled for the Committee stage of the bill. We expect to comment on these in our 14th report. This report is concerned only with the bill which the House considered at second reading.


5.  The Memorandum explains the Department's approach to the use of the affirmative procedure in this bill in the following terms:

6.  In the light of this, the Committee considered the provisions affected with particular care. Having done so we have concluded, in each case, that in the present bill the appropriate level of parliamentary control is provided.


7.  This substitutes a new Part I in Schedule 1 to the Child Support Act 1991. There are regulation-making powers in paragraphs 3(2), 4, 5, 7, 8, 9, 10, 10A and 10B (the references in paragraphs 4 to 9 to "prescribed" means prescribed by regulations - section 54 of the 1991 Act). Parliamentary control is specified in section 52 of the 1991 Act which is amended by clause 25. As a result the powers under paragraphs 3(2) and 10A(1) are subject to affirmative procedure, the other powers to negative procedure, except that the first exercise of the power in paragraph 10(1) is subject to affirmative procedure.


8.  Clause 4 substitutes a new section 12 in the Child Support Act 1991, subsection (4) of which is a power by regulations to make provision as to default and interim maintenance decisions. Subsection (5) gives examples of provisions which may be made by regulation. Affirmative procedure is applied "because those regulations will set child support liability in certain cases".

9.  Clause 5(5) substitutes a new section 28F in the 1991 Act, subsection (2)(b) of which allows regulations to prescribe factors which the Secretary of State must (or must not) take into account when considering whether it would be just or equitable to agree to a variation of the rules by which a maintenance calculation is to be made. Affirmative procedure applies to the corresponding power under existing legislation.

10.  Clause 6(2) establishes Part II of Schedule 2 which substitutes a new Schedule 4B for that in the 1991 Act which regulates applications for variation of the rules. All powers in the Schedule are subject to affirmative procedure (clause 25). "Prescribed" in the Schedule means prescribed by regulations so there are powers in paragraphs 2(2), (3), (4) and (5) and 3(1) and (2), while paragraphs 4, 5 and 6 confer power on the Secretary of State to make regulations. Affirmative procedure has been selected for these powers "because these provisions are central to the way the new variations procedure will work".

11.  Clause 18(2) substitutes a new section 41A for that in the 1991 Act and section 41A(1) allows the Secretary of State to make regulations requiring penalty payments of those in arrears with payments of child support maintenance. Subsection (4) expands this power. Affirmative procedure is applied "in view of the punitive nature of this provision".

12.  Clause 19 substitutes a new section 46 for that in the 1991 Act. The definition of "specified" in subsection (10) confers a power to make regulations. The use of "prescribed" in subsection (5) and in the definition of "reduced benefit decision" in subsection (10) also creates regulation-making powers. All powers under the section are subject of affirmative procedure (clause 25).

13.  Clause 21 substitutes a new section 43 for that in the 1991 Act to provide for the recovery of child support maintenance by deduction from benefit. Subsection (1)(b) requires "prescribed" conditions to be satisfied before recovery can be made. This is a power to make regulations and clause 25 applies affirmative procedure.

14.  Clause 22(3) inserts a new subsection (2A) in section 44 of the 1991 Act. This subsection lists persons who by virtue of their employment are to come within the scope of the 1991 Act even though they are not habitually resident in the United Kingdom. The use of "prescribed" in paragraphs (c) and (d) creates regulation-making powers and the latter is made subject to affirmative procedure by clause 25.

15.  Clause 27(9) allows regulations to provide for the clause to apply as if later dates were substituted for those in subsection (5) (which fix the beginning and end of the temporary compensation payment scheme). Subsection (12) applies affirmative procedure.

16.  Clause 28 introduces pilot schemes. Subsection (6) makes regulations establishing pilot schemes subject to affirmative procedure. The Memorandum says that this is "because pilot schemes will be a novel use of regulation-making powers". The Committee notes that a pilot scheme limited as provided in subsection (3) (e.g. to a specified area) would be a hybrid instrument.

17.  In our Special Report for last session we drew the House's attention to the fact that the concept of a hybrid instrument exists only in the House of Lords and not in the House of Commons.[2] The Procedure Committee has not yet considered our recommendation "that there is an issue for the House as a whole to consider as to whether there is still a need to make special provision for considering affirmative instruments which affect private or local interests." In the meantime we have in the present session reported on further provisions in bills exempting instruments made under them from the hybrid instrument procedure. The order-making power under this bill could, as we have noted, result in a hybrid instrument without any accompanying provision for it to be excluded from the hybrid instrument procedure, and so for the first time in a decade this procedure might actually be invoked. In our view this strengthens the case for the Procedure Committee considering this procedure.

18.  Clause 38 is listed as containing affirmative powers. In fact it extends existing powers which are subject to affirmative procedure.

19.  Clause 56 inserts a new section 5A in the Pensions Appeal Tribunals Act 1943 dealing with War Pension Appeals. Section 5A creates a right of appeal against "specified" decisions. Regulations subject to affirmative procedure (subsections (2) and (3)) specify these decisions.

20.  Clause 61 is a controversial provision which allows the breach of a community service order or a probation order (or another order specified in the definition of "relevant community order" in subsection (9)) to be punished by loss of benefit. At Second Reading in this House doubts were expressed about human rights aspects of the clause. The clause creates a number of delegated powers; subsections (4) and (8) provide that the Secretary of State may make regulations about certain matters and the use of the term "prescribed" in subsections (2), (3), (5), (9) and (12) creates further powers to make regulations. Clauses 62 and 63 supplement clause 61 and create further delegated powers. Clause 64 applies to regulations under any of those clauses. Subsection (4) of that clause applies affirmative procedure to certain powers in clause 61, namely the power to prescribe additional benefits which are to be treated as "relevant benefits" and the power to prescribe other descriptions of community order which are to be treated as "relevant community orders" (both these powers are in subsection (9)). The other powers in clauses 61 to 63 are subject to negative procedure and this is appropriate for those which deal with procedural matters but some of the powers, in effect, provide for the amount of the penalty for breach of a community order to be prescribed in regulations. Subsection (3) deals with income support and provides for the reduction in the amount of the offender's entitlement to be prescribed. Subsection (4) deals with jobseeker's allowance and provides for the rate of the allowance to be such reduced rate as may be prescribed. In view of the punitive nature of these provisions we are of the opinion that these powers should also be subject to affirmative procedure and we invite the House to consider amending the bill in this way. In the light of the human rights concerns about these powers there would be an additional benefit of making them subject to the affirmative procedure in that the Minister will be obliged to state his or her view that orders made under the powers are compatible.

21.  Clause 67 establishes Schedule 7 (housing benefit and council tax benefit: revisions and repeals). Paragraph 6(2)(e) allows regulations to prescribe decisions (in addition to those in paragraph 6(2)(a) to (d)) to which the paragraph is not to apply. The result of prescribing a decision is that there can be no appeal to an appeal tribunal (sub-paragraph (3)). Sub-paragraph (4) allows regulations to deny appeal rights in other circumstances. Paragraph 20(4) applies affirmative procedure to both these powers, presumably because of the seriousness of cutting off a right of appeal.


22.  There are Henry VIII powers in clauses 57(2), 73(2) and 76(2) and in paragraph 17(6) of Schedule 5. All are subject to negative procedure.

23.  Clause 57(2) inserts three subsections in section 8 of the Pensions Appeal Tribunals Act 1943. New subsection (4) allows the Minister to make regulations substituting a different number of months for any number of months specified in subsections (1) and (3) of that section which determine the time limit for appeals.

24.  Clause 76(2) is the Northern Ireland provision corresponding to the Great Britain provision in clause 73(2) which allows the Treasury to amend section 10(7) of the Social Security Contributions and Benefits Act 1992 (substituted by clause 73(2)) to take account of any alteration of Schedule E tax provisions.

25.  Paragraph 17(6) of Schedule 5 allows the Secretary of State by order to "make such modifications of paragraphs 14 to 16 as he considers appropriate". Those paragraphs are concerned with the alternative to anti-franking rules.

26.  In the context of this bill, the Committee sees these four Henry VIII powers as appropriately made subject to negative procedure.


27.  The bill contains a large number of other powers. All of these are summarised in the Memorandum and are subject to negative resolution procedure.[3] In each case the Committee considers that the negative resolution procedure provides the appropriate level of parliamentary control.


28.  The Committee has suggested that the affirmative procedure which applies to two of the powers in clause 61 should be extended to two further powers in that clause. Apart from this there is nothing else in the bill to which the Committee wishes to draw the attention of the House.

1   Paragraphs 36-37. Back

2   The Hybrid Instruments Committee last met in 1990, and we noted that the infrequency of meetings reflects the fact that bills often include provisions to exempt instruments made under them from the hybrid instrument procedure. Back

3   Memorandum, paragraph 33. Back

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