Select Committee on Delegated Powers and Deregulation Twentieth Report


14 JUNE 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 Department's Memorandum states that the main purpose of the bill is to honour commitments to legislate in the 1998 Transport White Paper and to provide for a Public Private Partnership for National Air Services. Part I deals with air traffic services, Part II with local transport, Part III with charging for road use and imposing a workplace parking levy, Part IV with railways and Part V with various miscellaneous matters including the important power to impound illegally operated heavy goods vehicles which are identified at roadside checks.

2. With a bill of over 300 pages and a varied content of this kind it is not surprising to find many delegated powers, but they are not so numerous as those in some recent bills. The Memorandum, which is printed in Annex 1 to this report, gives a full account of those powers and the Committee has therefore found it necessary to comment only on those powers which raise issues of interest to the House. A number of the powers (listed below) are subject to affirmative procedure and a few are not subject to Parliamentary control, and these are discussed in this report. All other powers are subject to negative procedure.

Affirmative powers

3. There are affirmative powers in clauses 48, 170, 230 and 250, in paragraphs 9, 12 and 13 of Schedule 12 and in paragraphs 8 and 14 of Schedule 14.

4. Clause 48(2) provides that the Secretary of State may designate by order a company to which property, rights or liabilities of the CAA are to be transferred as the company which will be the subject of a partial sale to the private sector. Because of the importance of the decision, the designation order is made subject to affirmative procedure (by clause 95(6)). Clause 48(10) is a Henry VIII power allowing the amendment or repeal of the clause. That order too is made subject to affirmative procedure. Because an order under the clause could be a hybrid instrument, clause 95(12) disapplies hybrid instrument procedure in the House of Lords. Whatever the general case for such procedure,[1] in the Committee's view it is clearly inappropriate here.[2]

5. The power in clause 48(10) is the only delegated power in the bill which was criticised during the Second Reading debate (Hansard 5 June col 936). The clause provides for the Crown to hold a "golden share" in the company and to maintain a shareholding of at least 25 per cent and it was questioned why there should be power to remove these safeguards by statutory instrument. The Memorandum explains that the clause is modelled on section 18 of the Commonwealth Corporation Act 1999. The Committee notes that the empowering provisions will be contained in the primary legislation and that the decision to release the golden share will be a judgement within the criteria provided. The Committee sees the power as not inappropriate and sees affirmative procedure as providing appropriate control over its use.

Powers subject to affirmative resolution in the House of Commons

6. There are six powers in the Bill which are subject to affirmative resolution in the House of Commons. These are in Clause 170, Schedule 12, paragraphs 9(1) and 13(2) and (5) and Schedule 14, paragraphs 8 and 14.[3]

7. Clause 170 in effect defines "workplace parking place" for the purposes of Part III of the bill which provides for the imposing of charges in respect of the provision of such parking places. Subsection (5) allows the making of regulations amending the clause for the purpose of adding, removing or varying cases where, for the purposes of Part III, workplace parking places are provided. Regulations for England are to be made by the Secretary of State, for Wales by the National Assembly and regulations applying to both England and Wales are to be made by the Secretary of State and the National Assembly acting jointly. Clause 185(4) provides that regulations under clause 170(5) shall not be made by the Secretary of State unless they have been approved in draft by the House of Commons.

8. There are three powers in Schedule 12 which are also subject to clause 170(5) and so regulations under them cannot be made by the Secretary of State unless a draft has been approved by the House of Commons. Schedule 12 is concerned with the financial aspects of road user charging and workplace parking levy. Regulations under paragraph 9(1) are concerned with the application of a non-metropolitan local traffic authority's share of the net proceeds of a charging or licensing scheme.

9. The charges described in paragraphs 7 and 8 above relate essentially to local taxation. The House of Commons Ways and Means resolution for this Bill of 20 December 1999 specifically included the making of road user charging schemes and workplace parking levy licensing schemes.

10. We do not find the boundary line between where local charges are or are not money resolutions an easy one to draw, and for ourselves have some uncertainty about the appropriateness of the Commons-only procedure for these order-making powers.

11. Paragraph 13 is concerned with the application of the proceeds of a trunk road charging scheme by the Secretary of State and the Assembly. Sub-paragraph (1) lists two types of scheme, that at paragraph (1)(b) is a scheme made under clause 155(2)(b) and coming into force in the first ten years of the life of Schedule 12. Paragraph 13(2) is a Henry VIII power to substitute a larger number than 10 in paragraph 13(1). Paragraph 13(5) covers schemes which are outside paragraph 13(1) and requires their proceeds to be applied only in accordance with regulations. Regulations under paragraphs 9(1) or 13(2) or (5) are made by the Secretary of State or the Welsh Assembly. The Committee has no concerns about these two powers, nor those in Schedule 14, paragraphs 8 and 14.

Powers not subject to Parliamentary control

12. Clause 87 allows the Secretary of State, acting "in any time of actual or imminent hostilities or of severe international tension or of great national emergency", to make an order for the possession of any aerodrome and the things on it. The order may create offences (maximum penalties are set out in subsection (6) and are a fine not exceeding the statutory maximum on summary conviction or a fine or imprisonment not exceeding two years on indictment). The Memorandum states that this clause "broadly replaces section 63 of the Civil Aviation Act 1982". Clause 86 also deals with control of aerodromes in time of hostilities but the powers under it are limited to giving directions. In view of the need for instant action in times of national emergency, the absence of Parliamentary control is understandable and the Committee considers it appropriate, particularly as there is provision for compensation (subsections (7) and (8)).

13. Clause 207 confers on the Strategic Rail Authority power to make bye-laws regulating the matters set out in the clause. Schedule 20 contains supplementary provisions. Bye-laws do not come into force unless confirmed by the Secretary of State (paragraph 3) and confirmation involves consultation (paragraph 4) and the Secretary of State may confirm with modification or refuse to confirm any bye-laws (paragraph 5(11)). Paragraph 2 provides the maximum penalty for an offence under the bye-laws (a fine not exceeding level 3 on summary conviction). Bye-laws of this kind have a long history and the Committee considers it appropriate that there should be no Parliamentary control.

14. Clause 228 provides for the winding down and abolition of the British Railways Board. Subsection (3) allows the Secretary of State by order to reduce the membership of the Board and subsection (4) allows him by order to dissolve the Board (this power is extended by subsection (7)). Both orders are statutory instruments but the Committee considers that the absence of Parliamentary control is appropriate for what are, in effect, transitional powers.

15. Clauses 248 and 249 contain commencement and transitional powers. Again the Committee considers the absence of Parliamentary control appropriate.

16. Schedule 26 contains provisions about the tax consequences of transfers under Part IV (railways). Paragraph 13 is concerned with "continuity in relation to capital allowances etc. where trade transferred" and sub-paragraph (3) allows the Secretary of State to make provision by order sorting out the corporation tax problems of particular transfers. Sub-paragraph (5) allows this to be done in various ways. Sub-paragraph (6) requires the Treasury's consent and sub-paragraph (7) requires the transferee's consent for any charges after the transfer. As the power is for transitional purposes and deals with particular transactions, the Committee does not see a need for Parliamentary control.


17. There are a number of provisions in the bill which give the Secretary of State power to issue directions. While these do not amount to legislative powers they may be as significant as some of the legislative powers. The Committee has mentioned one earlier and another example is clause 35 (directions in interests of national security etc.) where subsection (8) requires the Secretary of State to lay before Parliament a copy of any direction unless he thinks that disclosure would damage national interest or the commercial interest of any person.

18. The Committee sees no need to draw the attention of the House to any of these provisions.

Negative Instruments

19. Some of the powers subject to negative procedure are significant, for example the power to provide for the detention and sale of aircraft to pay charges (clause 76) but the Committee does not see any of them as inappropriate delegation or as requiring affirmative procedure. The Committee has thought it necessary to comment on only a few of these powers.

20. Clause 90(2) is a Henry VIII power allowing the amendment of the definition in the clause of "air traffic services". Clause 95(8) requires the CAA to be consulted about any amendment. There is a power in clause 230 to amend the definition of "services relating to railways" but that is subject to affirmative procedure. Clearly the appropriate form of Parliamentary control depends on the significance of the power and the Committee sees negative procedure as appropriate for the power in clause 90(1).

21. Clause 116(10) is a Henry VIII power but it is limited to varying a time limit.

22. Clause 120 provides exceptions from clause 119 (tendering for quality contracts). Subsections (2) to (5) allow regulations to create new exceptions and to make other provisions with respect to exceptions. These are not Henry VIII powers and negative procedure seems appropriate however significant the powers may be. These comments apply also to the associated powers in clauses 121(6), 122 and 123.

23. Clause 135 allows the amendment of clauses 133 and 134 (mandatory travel concessions outside Greater London). While this is a Henry VIII power it is limited to securing that clause 131 will produce the results set out in the clause and the Committee sees this as justifying negative procedure.

24. Clause 156(3) allows the Secretary of State and the Welsh Assembly to make regulations "about orders making, varying or revoking charging schemes" in respect of the use or keeping of motor vehicles on roads. Regulations can deal with such matters as specifying the form of orders, consultation about proposals and the publication of notices stating the effect of orders. The Committee has no comment to make on the power to make regulations. Charging scheme orders are made by local authorities or, in the case of trunk roads, by the Secretary of State or the Welsh Assembly. Local authority orders are subject to confirmation by the Secretary of State or the Welsh Assembly under clause 157 and there are further provisions about orders in clauses 158 to 160. Orders are not statutory instruments. The Committee considers that appropriate for these orders, the majority of which will be made by local authorities.

Government amendments for Committee stage

25. The Government has provided a memorandum[4] on the amendments it has tabled for Committee stage which contain delegated powers. The Committee thought that it would be for the convenience of the House to comment on these now, subject to any further comments if additional Government amendments are tabled at a later stage. The amendments we have considered are as follows:

    new clause after clause 96;

    new clause after clause 108;

    new clause 132;

    new clause after clause 234.

26. The Committee considers that none of these amendments raise matters which it wishes to draw to the attention of the House.


27. The Committee has commented on the uncertainty regarding the extension of Commons financial privilege to statutory instruments relating to local taxation. Aside from these comments, there is nothing in the bill which the Committee wishes to draw to the attention of the House.[5]

1  We invited the House as a whole to consider this procedure in our Special Report for last session (Special report, session 1998-99, HL Paper 112). Back
2  In the present session we have noted de-hybridising provisions in the Local Government Bill [HL] (2nd Report, HL Paper 16), and the Representation of the People Bill (4th Report, HL Paper 29). In our report on the Child Support, Pensions and Social Security Bill (13th Report, HL Paper 59), by contrast, we noted that an order-making power under that bill could result in a hybrid instrument without any accompanying provision for it to be excluded from the procedure. In our view this strengthened the case for the Procedure Committee considering this procedure. Back
3  Statutory Instrument Practice states that parliamentary control may be exercisable by the House of Commons only "if the instrument relates to financial matters". (2nd edition, Cabinet Office (Management and Personnel Office) 1987, paragraph 1.24). Erskine May gives clear examples of how the Commons have long included bills which deal with local revenues or charges as matters to which their privilege extends (22nd edition, London 1997, 797). But local taxation is generally exempt from the rules of financial procedure concerning charges upon the people (Erskine May, 733-734, 781). Back
4  Printed with this report. Back
5  This report is also published on the Internet at the House of Lords Select Committee Home Page (, where further information about the work of the Committee is also available. Back

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