19 JULY 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.
FOOTBALL (DISORDER) BILL
1. This Bill is undergoing a particularly speedy
passage through both Houses of Parliament. The bill arrived from
the Commons on 18 July, less than 24 hours before we were due
to consider it, and only two days before its Second Reading in
the Lords. Nevertheless, we have examined the delegated powers
it contains with especial care. We consider that the exercise
of powers in bills which are rushed through Parliament should,
as a general rule, be subject to enhanced Parliamentary scrutiny,
precisely because Parliament has had comparatively little time
to consider the initial grant of those powers.
2. This clause amends section 2 of the Police Act
1999 which specifies the functions of the National Criminal Intelligence
Service (NCIS) and the NCIS Authority. One of the functions of
NCIS is to provide criminal intelligence of police forces in Great
Britain, the RUC, the National Crime Squad and the law enforcement
agencies listed in subsection (3). The clause would allow NCIS
to "disclose information for the purposes of Part II of the
Football Spectators Act 1989 to any person prescribed by regulations
made by the Secretary of State." The Memorandum (paragraph
3) says that the regulations are likely to prescribe the Football
Banning Orders Authority and the Football Association. We see
this as appropriate delegation but we note that the bill does
not make the regulations subject to Parliamentary control. In
the Committee's opinion, the appropriate control would be by negative
procedure. The Memorandum states that the Home Office is giving
further consideration to the case for applying negative procedure
and we invite the House to amend the bill to apply that procedure.
3. Subsection (1) confers on the Secretary of State
a power to make "any supplementary, incidental or consequential
provision" and "any transitory. transitional or saving
provision" which "he considers necessary or expedient
for the purposes of, in consequence of or for giving full effect
to any provision of" the bill. This order-making power is
made a Henry VIII power by subsection (2) which allows the amending
or repealing of "any enactment, instrument or document".
Subsection (5) applies negative procedure unless the order "adds
to, replaces or omits any part of the text of an Act", in
which case affirmative procedure applies (subsection (4)). As
drafted, this would mean that an affirmative instrument could
be amended by a negative instrument made under the new power.
We therefore recommend that subsection (4) should be amended to
include an instrument which was itself subject to the affirmative
4. This is a wide power to supplement the provision
of the bill, and one which was scarcely discussed in the House
of Commons, although amendments were debated which would have
made all the order-making powers in the Bill, including this one,
subject to the affirmative procedure.
In his brief response in the Commons on this Clause the Home Office
Minister, Mr Clarke, said that among the matters which might be
dealt with under this particular power was the legal aid entitlement
of persons issued with a notice to appear before a magistrates
court. The use of the power is circumscribed by subsection (1)
and we therefore consider that the Parliamentary control for it
is appropriate. Similar powers are not uncommon
(though usually in larger and more complex bills).
5. This clause contains a simple commencement power
in subsection (1) (as usual, no Parliamentary control is provided).
But unusually the clause also provides that the new powers are
to continue in force only for a year (subsections (2) and (3))
unless extended (for up) to a total of four years) by order under
subsection (4). Thus five years after the new powers are brought
into force they will cease to be exercisable and it would take
a new bill to restore them. An order extending the life of the
new powers is subject to affirmative procedure (clause 3(4)).
6. The Committee considers this to be an acceptable
delegated power, especially since subsection (5) provides that
before making an order under subsection (4) the Secretary of State
must lay a report about the working of the Act before each House
of Parliament. It is for the House as a whole to determine whether
the "sunset" provision should not take effect until
the end of five years.
Schedules 1 and 2
7. The substance of the bill is in the amendments
to the Football Spectators Act 1989 which are made by these Schedules.
The new section 22A (inserted by paragraph 17 of Schedule 2) defines
"prescribed" as meaning prescribed by order and subsection
(3) of that new section applies negative procedure. The effect
of new section 14(2) (inserted by paragraph 2 of Schedule 1) is
that the matches to which the new powers apply are to be those
listed or described by the Secretary of State. Although the substance
of these amendments to the 1989 Act is controversial in the extreme,
the Committee's remit is to consider only the delegated powers,
and in that regard we consider this to be appropriate delegation,
with the appropriate level of parliamentary control.
8. There is another power in new section 22A. Subsection
(2) allows an order to "provide for sections 14(5) and (6)
and 14E(2) and (5) ... to have effect as if, for any reference
to five days, there were substituted a reference to the number
of days specified in the order". This is, in substance if
not in form, a Henry VIII power. The five day period in [new]
section 14(5) and (6) is the period before the match (or the first
match of a tournament) which counts as part of the "control
period". The five day period in [new] section 14E(2) is the
time limit for reporting to the police under a banning order.
Subsections (4) and (5) deal with the case of a person detained
in legal custody when a banning order is made. The order is suspended
until his release from custody and if at that time there is more
than five days unexpired of the period of the ban, he is required
to report to the police station within five days of his release
9. We understand that this power is intended to provide
for occasions when a match or tournament is to take place in a
far distant country and spectators might be likely to leave this
country earlier than five days before the match (or the opening
of the tournament). If the bill's provisions about the surrender
of passports are to be effective on such occasions, the five day
period will have to be extended and this power (coupled with the
amendment made by paragraph 18(a) of Schedule 2 to the bill which
permits an order to "make different provision for different
purposes") allows that extension to be made.
10. An order extending the five day period in
section 14(5) would make banning orders more severe because it
would extend the period during which the person subject to the
order may be required to surrender his passport (section 19(2E)).
We consider that it is undesirable for this power to be left apparently
open-ended, and that ideally the criteria circumscribing its use
should be set out on the face of the bill. In this event the negative
resolution procedure is appropriate. If the House does not consider
such an amendment practicable, given the short time available
for the bill's Parliamentary scrutiny, we consider that the power
is sufficiently at large to warrant the enhanced degree of Parliamentary
control provided by the affirmative resolution procedure.
11. The Committee has made the following recommendations:
- the bill should be amended to make orders
under clause 2 subject to the negative resolution procedure;
- Clause 3(4) should be amended to cover amendments
to an instrument itself subject to the affirmative resolution
- the criteria for the use of the power in new
section 22A(2) should ideally be set out on the face of the bill,
or alternatively the bill should be amended to make the power
subject to affirmative procedure.
12. There is nothing else in the bill which the Committee
wishes to draw to the attention of the House.
FUR FARMING (PROHIBITION) BILL
13. The bill prohibits fur farming in England and
Wales and requires the Minister to make a scheme for compensating
those who have to discontinue fur farming businesses (there is
said to be no fur farming in Wales but the Welsh Assembly is given
power to make a compensation scheme if one is needed.) The commencement
arrangements are unusual - the clause providing for compensation
comes into force two months after Royal Assent and the remainder
of the bill on such day after 31 December 2002 as the Minister
may by order appoint.
14. This clause provides for the making of a compensation
scheme for existing businesses. The scheme to be made by the Minister
is to be made by order subject to negative procedure. The Explanatory
Notes, in paragraph 26 dealing with the financial effects of the
bill, comment that compensation in respect of assets could be
up to £400,000 "and perhaps four times that amount if
income were to be compensated." This suggests that the clause
gives the Minister a discretion whether or not to compensate "income"
and that he has not decided whether to do so. The Committee
consider that the question of whether or not compensation should
include loss of "income", which has important Human
Rights implications, should not be left to ministerial discretion.
We therefore recommend the amendment of clause 5 to make the Government's
15. The Committee has recommended the amendment
of clause 5 of the bill to specify whether compensation should
include loss of "income". There is nothing else in the
bill which the Committee wishes to draw to the attention of the
COUNTRYSIDE AND RIGHTS OF WAY BILL - GOVERNMENT
AMENDMENTS FOR COMMITTEE STAGE
16. The Committee reported on this bill in its 24th
The Department of the Environment, Transport and the Regions has
now submitted to the Committee a memorandum (printed in Annex
3) which explains that the Government has tabled an amendment
which will add a new delegated power to the bill.
17. The Committee received this morning a further
memorandum from the Departments on further Government amendments
to this Bill which contain delegated legislative powers. We will
report on these amendments next week. The Government has not yet
produced its written response to the Committee's 24th report,
which contained a number of substantive recommendations concerning
the delegated powers in this bill.
New clause after clause 38
18. The new clause enables regulations made by the
Secretary of State to amend references to public places in existing
enactments. Paragraph 3 of the Memorandum states that "there
are a large number of statutory provisions which regulate conduct
in public places, that is places of which the public have a right
of access or to which the public in practice have access"
and explains that the right of access created by the bill will
bring large areas of private land within the various definitions
of public places. Paragraph 4 explains that this may be appropriate
in most cases but that there could be other provisions which would
restrict the existing rights of the landowner. Regulations under
the bill are subject to negative procedure.
19. The Committee considers that it is impracticable
at this stage to examine all legislation referring to "public
places" and to include in the bill appropriate amendments
and that delegation is, therefore, appropriate. While this is
a Henry VIII power, it is clearly defined and limited in its scope
and the Committee considers that negative procedure is appropriate.
1 The debate on Clause 3 during Committee stage in
the House of Commons accounts for only two full columns of House
of Commons Hansard (17 July 2000, cols. 132-134). Back
2 The question of whether there was a precedent for the use of the
negative resolution procedure for such a wide power was raised
on the floor of the House of Commons, see House of Commons
Hansard 17 July 2000, col. 134. Back
3 HL paper 86. Back
4 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