OTHER AFFIRMATIVE POWERS
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
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
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
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
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
HENRY VIII POWERS
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
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.
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
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
Memorandum, paragraph 33. Back