Select Committee on Delegated Powers and Deregulation Twenty-Sixth Report



TWENTY-SIXTH REPORT


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.

ORDERED TO REPORT

FOOTBALL (DISORDER) BILL

INTRODUCTION

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.

Clause 2

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.

Clause 3

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 resolution procedure.

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.[1] 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[2] (though usually in larger and more complex bills).

Clause 5

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 from custody.

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.

Recommendation

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 procedure;
  • 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

INTRODUCTION

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.

Clause 5

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 intentions clear.

Recommendation

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 House.


COUNTRYSIDE AND RIGHTS OF WAY BILL - GOVERNMENT AMENDMENTS FOR COMMITTEE STAGE

INTRODUCTION

16. The Committee reported on this bill in its 24th Report.[3] 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.

Recommendation

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.[4]


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

 
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