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.
LIMITED LIABILITY PARTNERSHIPS BILL [HL]
1. The main purpose of the bill is to create
a new form of legal entity - the limited liability partnership
(LLP) which combines the organisational flexibility and tax status
of a partnership with limited liability for its members. The bill
is the final stage of a process which began with a Law Commission
investigation in 1996 and led to the publication of a draft bill
and regulations in 1998 and a revised text in July of this year.
2. The draft bill did not undergo pre-legislative
scrutiny in the House of Lords but was reported on by the House
of Commons Trade and Industry Committee.
The Government's response to that report was published in June
3. Clauses 13 to 16 are concerned with regulations
to be made by the Secretary of State.
4. Clause 13 requires regulations to make
provision about the insolvency and winding up of LLPs "by
applying or incorporating, with such modifications as appear appropriate,
Parts I to IV, VI and VII of the Insolvency Act 1986". That
clause also allows regulations to make provision about the insolvency
and winding up of "oversea limited liability partnerships"
(bodies established outside Great Britain and having such links
with Great Britain as may be prescribed).
5. Clause 14 allows regulations to apply with
modifications or disapply legislation about companies and partnerships.
6. Clause 15 is a Henry VIII provision which
allows regulations to amend or repeal primary and secondary legislation
in consequence of the bill or regulations made under it.
7. Clause 16 makes general provision about regulations.
Subsection (2) lists particular provisions which may be made by
regulations. These include creating criminal offences and imposing
fees. Subsections (4) to (6) deal with Parliamentary control.
Regulations are subject to negative procedure except where they
deal with the matters listed in subsection (5) when they are subject
to affirmative procedure. Thus regulations which deal with oversea
limited liability partnerships or make amendments or repeals to
any enactment are subject to affirmative procedure as are regulations
which operate on the law about corporations or partnerships (other
than specified sections in the Companies Act 1985).
8. The Department's memorandum makes out the
case for the regulation-making power and there has already been
consultation about draft regulations. The power is wide, in particular
in relation to insolvency, but as Clause 13 circumscribes the
power in the way set out in paragraph 4 above the Committee considers
that its apparent width is appropriate. The Committee has one
concern about the power. The draft regulations create offences
punishable on summary conviction by a fine but the power is wide
enough to allow the regulations to provide for imprisonment or
for trial on indictment. If, as seems likely, the intention
is to provide only for summary trial and a fine, the Committee
is of the opinion that it would be better for this limitation
to appear in the bill, particularly as affirmative procedure is
not applied to regulations creating offences. Apart from this
the Committee sees the provision for Parliamentary control as
9. The Committee draws the attention of the
House to the power to create offences by regulations and invites
it to consider whether the bill should be amended to provide that
such offences should be punishable on summary conviction by a
ARMED FORCES DISCIPLINE BILL [HL]
10. This bill is the result of a review of the
disciplinary system for the three Services which has addressed
areas where there is concern that the system may not comply with
the European Convention on Human Rights. Because each Service
has its own legislation any change to the system requires three
amendments although sometimes two amendments can be run together
as, for example, in clause 8(1) which inserts the same new section
in each of the Army Act 1955 and the Air Force Act 1955. This
need to amend three codes makes it appear that there are many
more delegated powers in the bill than in fact there are.
11. The provisions of the bill supplement existing
codes which already contain delegated powers and occasionally
those powers are reflected in the text of the bill. For example,
the new section 75 substituted by clause 1(1) in the Army Act
1955 provides, in subsection (4), that a person is to be treated
as charged with an offence when "he is informed in accordance
with regulations of the Defence Council that a charge is to be
reported to his commanding officer". This report is concerned
only with new powers created by the bill. These are identified
and discussed in the Department's memorandum.
12. New section 75D added to the Army Act 1955
applies sections 75 to 75C to persons delivered into military
custody but allows the Secretary of State to modify by regulations
those sections in relation to such persons. Regulations are subject
to negative procedure.
13. There is corresponding provision for the
other Services in clause 1(2) (new section 75D of the Air Force
Act 1955) and clause 1(3) (new section 47E of the Naval Discipline
14. New section 75E added to the Army Act 1955
extends the powers of the Defence Council to make regulations
so that supplementary provisions may be made to support sections
75 to 75C. Regulations may authorise the delegation of the commanding
officer's functions, require the person in custody to be given
information and require the keeping of records.
15. There is corresponding provision for the
other Services in clause 1(2) (new section 75E of the Air Force
Act 1955) and clause 1(3) (new section 47F of the Naval Discipline
16. This clause inserts new sections in each
of the three Service Acts to allow the Secretary of State to make
"custody rules". The rules will be subject to negative
procedure (subsection (3) of each new section). The rules will
regulate proceedings under the new provisions inserted by the
bill which relate to the extension of custody without charge,
the bringing of a person in military custody before a judicial
officer "as soon as practicable" and the review by a
judicial officer of a decision to extend a period of custody without
charge. The new sections list particular matters which can be
included in the rules. These include representation of the person
in custody, the admissibility of evidence and the circumstances
in which the review of a decision to extend custody can be carried
out without a hearing.
17. Clearly the rules have an important part
to play in ensuring the fairness of the new system. The memorandum
explains that they will regulate, amongst other things, the arrangements
preliminary to the proceedings, the representation of the person
to whom the proceedings relate, procuring the attendance of witnesses
and the appointment of persons to discharge administrative functions
under the rules. The rules will also make provision as to the
admissibility of evidence at custody hearings and as to the immunities
and privileges of witnesses. The memorandum also suggests that
given the very detailed nature of the provisions that will be
required to be included in the rules, it is considered appropriate
that they should be made by subordinate legislation. The Committee
agrees with this approach but has considered carefully whether
it is appropriate that a power wide enough to regulate the admissibility
of evidence and the immunities of witnesses should not be subject
to affirmative procedure. The rules will be part of a framework
consisting of existing legislation and subordinate legislation
made under it. The whole will have to be compatible with Convention
rights under the Human Rights Act 1998. Against this background
the Committee can accept that it is appropriate that the rules
should be subject to negative procedure.
18. This clause inserts a new section in each
of the Service Acts to allow the Secretary of State to make rules
regulating the practice and procedure to be followed in the summary
appeal court. Again the rules will be important and will be subject
to negative procedure. The memorandum states that given the very
detailed nature of the Rules and the fact that they will be substantially
procedural it is considered appropriate that they should be made
by subordinate legislation. The Committee agrees with this approach,
and notes that rules governing the practice and procedure of courts
martial are also contained in subordinate legislation.
Our comments in the previous paragraph about the appropriate level
of Parliamentary control apply also to this power.
19. The summary appeal court is created by clause
14 and there are applications of the rule-making power in subsection
(6) of each of the new sections inserted by that clause as there
are also in subsection (2) of each of the new sections inserted
by clause 16 and in subsection (3) of those inserted by clause
20. This clause inserts a new section in each
of the Service Acts which provides for the Secretary of State
to make an order (subject to negative procedure) prescribing the
oath to be taken by a member of the summary appeal court before
he sits for the first time and prescribing the person to administer
REGULATIONS NOT MADE BY STATUTORY INSTRUMENT
21. Paragraphs 14 to 18 of the Department's memorandum
discuss the provisions in the bill which confer on the Defence
Council power to make regulations. Defence Council regulations
are not made as statutory instruments and are not subject to Parliamentary
control. The memorandum explains that the regulations need to
be "sufficiently flexible to reflect operational requirements
and the exigencies of Service life" and that the regulations
are to be reproduced in Service manuals which will be available
to all who need to have reference to them.
22. The provisions of the bill are but a small
part of a much larger already-existing disciplinary code, and
the new comparatively minor provisions are in conformity with
those approved by Parliament in the past. In view of the fact
that Defence Council regulations will in future have to be compatible
with Convention rights under the Human Rights Act 1998, we are
content with the provisions of the bill. But we should note that
Defence Council regulations deal with a wide range of matters,
some important and some minor, and the time may come when Parliament
will wish to consider whether the more important provisions should
be subject to Parliamentary control.
23. The House may wish to note the important
rule-making powers in clauses 8 and 22 and our comments on the
Defence Council regulations in paragraph 22 above. There is nothing
else in the bill which the Committee wishes to draw to the attention
of the House.
CHILDREN (LEAVING CARE) BILL [HL]
24. This bill confers powers to make regulations
to provide for the detailed implementation of the policy embodied
in the bill. The Department's memorandum explains the need for
each new power and how it is likely to be used.
REGULATIONS UNDER THE CHILDREN ACT 1989
25. Clauses 1 to 5 add provisions to the 1989
Act and in each clause there is an extension (or extensions) of
the regulation-making powers contained in that Act. The 1989 Act
provides for negative procedure. The memorandum explains that
regulations for Wales will be made by the Assembly.
26. This clause is intended to ensure that those
who gain benefits under the bill do not also qualify for benefits
under the Jobseekers Act 1995 or the Social Security Contributions
and Benefits Act 1992. The policy is that the local authority
as "corporate parent" should be responsible for providing
support for young people leaving the authority's care. But there
are some groups of young people (lone parents and disabled children)
who are eligible for welfare benefits even while living at home
and it is not intended that such benefits should be denied to
those to whom the bill applies. Subsection (6) is concerned with
young people who have been in care in Scotland. The memorandum
explains that if the Scottish Parliament decides to legislate
on similar lines to the bill, there will need to be regulations
excluding from benefits under the 1992 and 1995 Acts those young
people who are being supported by a local authority in Scotland.
Subsection (6) provides for this and subsection (9) applies affirmative
procedure (presumably on the ground that the regulations will
be removing benefits and that the Westminster Parliament will
need to be satisfied that those concerned will be receiving appropriate
support from Scottish authorities).
27. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
NUCLEAR SAFEGUARDS BILL [HL]
28. This bill is needed to enable the United
Kingdom to fulfil its obligation under the Additional Protocol
signed in Vienna on 22 September 1998. There is a simple commencement
power and a power, in clause 3, to make regulations requiring
persons in specified categories to identify themselves to the
Secretary of State.
29. Regulations under this clause are subject
to negative procedure. Failure to comply with the regulations
is an offence punishable on summary conviction by a fine not exceeding
the statutory maximum or on conviction on indictment by a fine
- clause 9(1).
30. Paragraphs 18 to 20 of the Explanatory Notes
explain the need for this power and indicate the classes of persons
at whom the regulations would be directed.
31. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
AREAS OF OUTSTANDING NATURAL BEAUTY BILL
32. This private member's bill introduced by
Lord Renton of Mount Harry is not materially different from the
bill he introduced last session. On that bill we reported in our
13th Report of last session that there was nothing in the bill
which we wished to draw to the attention of the House.
33. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
CRIMINAL JUSTICE (MODE OF TRIAL) BILL
CROWN PROSECUTION SERVICE INSPECTORATE BILL [HL]
PARLIAMENTARY COMMISSIONER (AMENDMENT) BILL [HL]
34. Apart from simple commencement powers in
the first two bills, these bills do not confer delegated legislative
CONSIDERATION OF AMENDMENTS TO BILLS
35. The Committee is pleased to record that its
proposals in paragraphs 36 and 37 of its 29th Report of Session
1998-99, concerned with the time-scale for the tabling of Government
amendments to bills, have been accepted by the Government. The
attention of all Lords Ministers' Private Secretaries has been
drawn to those paragraphs to help to ensure that those recommendations
The Committee welcomes this prompt and positive response to our
recommendation and believes that this will be for the benefit
of the House.
COMPATIBILITY OF SECONDARY LEGISLATION WITH THE EUROPEAN CONVENTION ON HUMAN RIGHTS
36. In the Committee's Report on the Immigration
and Asylum Bill (22nd Report, Session 1998-99) we suggested that
when a draft instrument under the bill came before the House for
approval the minister moving the resolution should inform the
House whether he is satisfied that the instrument is compatible
with Convention rights. Lord Williams of Mostyn gave an undertaking
to this effect during the passage of the bill
and the Government has since extended that undertaking to cover
all resolutions approving affirmative instruments and any secondary
legislation to the extent that it amends primary legislation.
In the latter case if the instrument is not subject to affirmative
procedure the statement of compatibility would be in writing,
perhaps in the form of a letter to the Joint Committee on Statutory
Instruments. The full text of the undertaking is set out in Annex
1 Fourth Report from the Trade and Industry Committee,
session 1998-99, The Draft Limited Liability Partnership Bill,
HC 59. Back
2 Eighth Special Report from the Trade and Industry Committee, session
1998-99, Government Observations on the Fourth Report from
the Committee (Session 1998-99) on the Draft Limited Liability
Partnership Bill, HC 529. Back
3 Department's memorandum, paragraph 9. Back
4 See Annex 5. Back
5 Official Report, 2 November 1999, columns 737-8. Back
6 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