Select Committee on Delegated Powers and Regulatory Reform Twenty-Third Report


TWENTY-THIRD REPORT


9 July 2003

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 and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.[1]

ORDERED TO REPORT

ANTI-SOCIAL BEHAVIOUR BILL

INTRODUCTION

1. This nine-part bill covers a range of subjects: premises used for supply etc. of Class A drugs; housing; parental responsibilities; dispersal of groups and removal of under-16s; sanctions etc.; firearms (in particular, air weapons); the environment (noise, graffiti, fly-posting, fly tipping etc.); and public order and trespass.

2. The Home Office prepared a memorandum for the Committee on the delegated powers in the bill. The memorandum is printed at Annex 1 to this Report.

THE DELEGATED POWERS

3. There are delegated powers to make orders, rules or regulations at clauses 1(9), 20(1), 21(4), 23(1) (new sections 444A(3) and 444B) and (9), 39(3) and (4), 41(4) and (7), 42 (new section 23B(6)), 45(6), 49(9) and (11), 51(4) and (7), 58(1), 61 (new section 62A(5)) and 67, and paragraph 1 of Schedule 1 (new sections 143F(3), 143L, 143N(5)).

4. The powers are conferred on the Secretary of State, save that the power in clause 23(9) is conferred on the National Assembly for Wales (the Assembly) alone, powers in clauses 20(1), 21(4), 23, 49(9) and (11), 51(4) and (7), 58 and 67 and paragraph 1 of Schedule 1 are exercisable, or potentially exercisable, as respects Wales by the Assembly, and a power at Schedule 1, paragraph 1 (new clause 143N) is conferred on the Lord Chancellor. Except where Assembly procedures apply, clauses 39(3), 41(4) and (7) and 45(6) are subject to affirmative resolution procedure, clause 67 has no Parliamentary procedure, and all remaining rules, regulations and orders are subject to negative resolution procedure.

5. Although we take the view that each of the delegations is appropriate and subject to an appropriate level of Parliamentary scrutiny, a small number of delegated powers raise issues to which the Committee wishes to draw the attention of the House.

Clause 39(3)

6. Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 provides for a system of on the spot penalties for disorderly behaviour. A person aged 18 or over who is suspected of having committed any of the offences mentioned in section 1 of the 2001 Act may be given a penalty notice which offers him the opportunity to discharge any liability to be convicted of the offence by paying a civil penalty. Clause 39(2) lowers the age from 18 to 16.

7. Clause 39(3), which is a Henry VIII power, enables the Secretary of State by order subject to affirmative procedure to alter the age further (but not to lower it below 10). If the age is lowered below 16, the order may provide for a parent or guardian to have to pay the penalty. The delegation is limited to (a) changing the age, (b) providing for a parent or guardian to be notified and to be liable to pay, and (c) making amendments to enactments for the purpose in (b). For these reasons, we find this delegation and the level of Parliamentary scrutiny appropriate. We wish however to raise an issue in connection with this provision about whether the parent or guardian will have the right to an opportunity to be heard before being made to pay.

8. In its memorandum, the Home Office drew our attention to section 137 of the Powers of Criminal Courts (Sentencing) Act 2000, which contains provision for the court in criminal proceedings to order a parent or guardian to pay fines, compensation or costs of a young person aged up to 16 unless it would be unreasonable. But no order can be made under that provision without giving the parent or guardian the opportunity to be heard. There is no requirement for the order under the provisions in clause 39(3) to include any similar safeguard for penalties under penalty notices (which are not, of course, criminal proceedings), and the House may wish to invite the Government to provide further details of how the power in new section 2(6)(b) will be used and whether such a safeguard will be included in provision made under clause 39(3).

Clauses 49(11) and 23

9. Clause 49 provides for a fixed penalty notice procedure for certain offences involving graffiti or fly-posting. The penalty payable under a notice is fixed by clause 49(10) at £50. But there is a Henry VIII power to alter that amount by order which in the case of an order for England by the Secretary of State is subject to negative resolution procedure.

10. There is no limit on the amount which may be fixed. We recognise that the system will not work unless the penalty is fixed at a level below that of the likely penalty on a conviction for the offence if the person concerned chooses instead to be prosecuted. So there is in practice a safeguard built into the system. We note however the contrast with Chapter 1 of Part 1 of that Act, to which we refer at paragraph 6 above. An order under section 3 of the Criminal Justice and Police Act 2001 (subject to negative procedure) cannot fix a penalty at an amount which exceeds a given proportion (a quarter) of the maximum fine on conviction for the relevant offence. The House may wish to consider whether a similar limitation should be included in clause 49(11).

11. Clause 23 includes another power providing for a penalty notice system - this time as an alternative to prosecution of a person for an offence under section 444(1) of the Education Act 1996 (truancy - failure to secure regular attendance at school). In particular, new section 444B enables regulations subject to negative procedure to make provision for most of the details of the scheme, and one of the items for which the regulations may provide is the amount of the penalty itself. We note that the Government has produced a draft of regulations under this clause (annexed to the memorandum for the Committee), from which it may be seen that the current proposal is to set the penalty at between £25 and £100. This is well below the level of the maximum fine for summary conviction of an offence under section 444(1) of the 1996 Act - £1,000. Leaving the amount of the penalty to subordinate legislation subject to negative procedure is precedented but, as with clause 49(11), the House may wish to consider whether some limitation on the level of penalty should be included in the bill.

CONCLUSION

12. We draw to the attention of the House the points raised in paragraphs 8, 10 and 11 above. There is nothing else in the delegated powers in the bill to which the Committee wishes to draw the attention of the House.

FIREWORKS BILL

INTRODUCTION

13. This private member's bill makes provision about fireworks and other explosives. It is almost entirely an enabling bill; clauses 2 to 10 contain no provisions other than powers to make regulations, and there are other delegated powers at clauses 1(2), 14(3) and 18. Clauses 11(6) and 12(1) and (2)(a), (b) and (i) extend the scope of existing delegated powers. All of the delegated powers are identified in a memorandum to the Committee from the Department of Trade and Industry (DTI). The memorandum is printed at Annex 2 to this Report.

14. The purpose of the bill is explained at paragraph 3 of the Explanatory Notes and paragraph 3 of the DTI's memorandum. Essentially, new powers are to be taken to make regulations in relation to fireworks, because the powers under the Consumer Protection Act 1987 are considered inadequate, in particular because they cannot be used to regulate use of fireworks.

1997-98 BILL

15. The current bill is in most material respects the same as one which was considered by the Committee in its 16th Report (Session 1997-98). The Committee expressed a number of concerns about the bill at that time. Though it concluded that the bill did not inappropriately delegate legislative power (paragraphs 2 to 5 of the Report), and that negative resolution procedure was adequate for regulations under the bill, it considered that Ministerial undertakings would be appropriate in relation to the use of the powers in several respects.

HENRY VIII POWERS

16. There are Henry VIII powers in this bill at clauses 1(2) and 14(3). They are powers by regulations (subject to affirmative procedure) to change the definitions of "fireworks" and "explosives" in clauses 1(1) and 14(2) respectively. The case for these powers is made in paragraphs 6.1 and 6.22 of the DTI's memorandum. When the Committee considered these provisions in 1997-98, we asked for Ministerial assurances as a minimum since only the negative procedure was provided for. In our view, the higher level of Parliamentary scrutiny now proposed certainly meets the Committee's concerns as expressed at that time.

FIREWORKS REGULATIONS

17. Clause 2 enables the Secretary of State, by regulations subject to negative procedure, to make any provision which she considers appropriate for securing that there is no risk that use of fireworks will have the consequences specified in clause 2(2) or that that risk is the minimum compatible with their being used. The specified consequences include not just personal injury but also "alarm, distress or anxiety" to persons, injury or distress to animals and damage to property. Clauses 3 to 10 set out a number of matters for which the fireworks regulations may include provision. There are described in DTI's memorandum. They are broad powers. For example:

  • clause 3(2) allows regulations to prohibit purchase or possession of fireworks by those under a specified age, not just to prohibit supply;

  • clause 4(1) allows regulations to prohibit during specified hours of the day not just the use of fireworks but also their supply, purchase and possession;

  • clause 5 allows regulations to prohibit the purchase and possession of specified types of fireworks, not just their supply;

  • clause 7 allows regulations to set up a licensing system for suppliers of fireworks.

We note the consultation requirement at clause 2(3) (subject to the urgency procedure at clause 2(5)). We also note the obligation on the Secretary of State (at clause 2(4)) to issue a regulatory impact assessment before making regulations, a requirement which is a response to the Committee's earlier report.

18. As in our earlier report, we draw the attention of the House to the width of the powers being taken in this bill. We suggest that the House may wish to seek assurances from the Government as to how they propose to use the powers to be conferred by the bill. In particular the House may wish to seek assurances

  • that a training requirement for public displays will be imposed only where unusually dangerous fireworks are involved;

  • that there will be a mechanism whereby the Secretary of State may approve the level of fees payable under clause 10 by those attending fireworks training courses and by those licensed to provide training.

CONCLUSION

19. We draw to the attention of the House the point raised in paragraph 18 above. There is nothing else in the delegated powers in the bill to which the Committee wishes to draw the attention of the House.

HUMAN FERTILISATION AND EMBRYOLOGY (DECEASED FATHERS) BILL

20. This is a private member's bill brought from the House of Commons. The purpose and effect of this Bill is explained in paragraphs 3 to 5 of the Explanatory Notes.

21. There is one delegated power in the bill - at clause 4. This is a power to make commencement orders which may include transitory, transitional or saving provision. The orders are subject to no Parliamentary procedure. This is well precedented.

22. There is nothing in this bill to which the Committee wishes to draw the attention of the House.

NATIONAL LOTTERY (FUNDING OF ENDOWMENTS) BILL

23. This bill contains no delegated powers.

DEALING IN CULTURAL OBJECTS (OFFENCES) BILL

24. This bill contains no delegated powers.

WATER BILL - GOVERNMENT AMENDMENTS FOR COMMITTEE ON RE-COMMITMENT AND FOR THIRD READING

25. The Committee reported on this bill in our 12th Report of this Session (HL Paper 63). The Committee has now been invited to comment on amendments to be taken in Committee on Re-commitment and at Third Reading. The Department for Environment, Food and Rural Affairs has provided a supplementary memorandum which is printed at Annex 3 to this Report and which explains the amendments.

AMENDMENTS IN COMMITTEE ON RE -COMMITMENT: FLUORIDATION

Amendment 1 on the Marshalled List - new sections 87 to 90 of the Water Industry Act 1991

26. Section 87(1) of the Water Industry Act 1991 currently provides that a water undertaker may increase the fluoride content of water on the application of a health authority. Section 90 provides that the Secretary of State may indemnify the water undertaker in respect of any of four items specified in the Act.

27. The proposed new section 87(1) of the 1991 Act replaces the power of the water undertaker with a duty to enter into arrangements to increase the fluoride content if requested to do so by a Strategic Health Authority (England) or the National Assembly for Wales (Wales). New section 87(2) provides that the undertaker is not required to enter into those arrangements until he is given an indemnity in accordance with section 90 and regulations made under it.

28. Under the proposed new section 90 the Secretary of State/National Assembly for Wales may indemnify the water undertaker in respect of liabilities which it may incur in complying with the arrangements under section 87. Regulations (subject, in the case of the Secretary of State, to negative procedure) may prescribe the matters in respect of which an indemnity may be given. But the matters prescribed need not include all the matters in respect of which the water undertaker may incur liability in complying with the arrangements. Accordingly, the content of the regulations is of some significance to the operation of the new sections. The Committee accepts that the details will, as mentioned in the Department's memorandum, need elaboration in consultation with the water industry and others. While we find the delegation appropriate, the Committee recommends, in view of the importance of the regulations, that the first exercise of the power under new section 90 by the Secretary of State should be subject to affirmative procedure.

29. Section 89 of the 1991 Act provides that before a proposal to make or withdraw an application to fluoridate water is made, details must be published in a local newspaper and the local authority must be consulted. Under the proposed new clause 89, there is no specific requirement to consult the local authority. Instead, details of consultation (including those who must be consulted) are to be left to regulations (subject to negative procedure in the case of those made by the Secretary of State). The Committee accepts the delegation is appropriate, and that the details of the consultation requirements may need to be altered from time to time. But it considers that the first regulations made under new section 89 will be of particular significance and recommends that the first exercise of the power by the Secretary of State should be subject to affirmative procedure.

30. New section 88A contains a delegated power to lower the level of fluoride in water which arrangements under section 87 should achieve. The affirmative procedure is applied for orders by the Secretary of State. The Committee considers both the delegation and the level of scrutiny appropriate.

AMENDMENTS ON THIRD READING

Amendments 63 and 64 on the Marshalled List

31. The Government has tabled amendments to Schedule 4 of the bill which include delegated powers. They are described in paragraphs 2 and 3 of the Supplementary memorandum. We find the delegation and the level of scrutiny to be appropriate.

CONCLUSION

32. We draw to the attention of the House the recommendations in paragraphs 28 and 29 above.

LOCAL GOVERNMENT BILL - GOVERNMENT AMENDMENTS FOR REPORT STAGE

INTRODUCTION

33. The Committee reported on this bill in our 16th and 21st Reports of this Session (HL Papers 85 and 122). The Committee has now been invited to comment on Government amendments to be taken at report stage. The Office of the Deputy Prime Minister has provided two supplementary delegated powers memoranda which are printed (along with letters from Lord Rooker, Minister of State for Regeneration and Regional Development) at Annex 4 to this Report.

AMENDMENTS

Clause 76 and consequential amendments

34. The purpose of the amendments is fully described in the supplementary memorandum. It is to extend to Welsh local authorities the same powers regarding council tax discounts on second and empty homes as are given elsewhere in the bill to English authorities. We find the delegation and the level of scrutiny of these powers to be appropriate.

After Clause 117

35. The purpose of the amendment is described in the second supplementary memorandum. The delegation in the amendment is a Henry VIII power and it provides that the Secretary of State in England and the National Assembly for Wales will have power to amend or repeal, by order (subject, in the case of the Secretary of State, to affirmative resolution), any enactment relating to a local authority in the light of generally accepted accounting practice as it applies to local government.

36. Although we do not find the delegation or level of scrutiny inappropriate in this instance, two issues cause us concern.

37. First, we note that there is no definition of "generally accepted accounting practice" but that, according to paragraph 2 of the supplementary memorandum, its scope and meaning will be in practice determined by the Chartered Institute of Public Finance and Accountancy and the Local Authorities (Scotland) Accounts Advisory Committee. The delegation is wide-ranging and the House may wish to seek clarification from the Government about how it will be limited in practice.

38. Secondly, we were unsure how this (new) clause is intended to interact with clause 21 (accounting practices). Clause 21(2) provides for the Secretary of State by regulations to identify a code or other document for the purposes of determining what are "proper practices". There is no requirement that this be the same code as any code relied on to determine "generally accepted accounting practices" for the purposes of the new clause. The House may wish to ascertain from the government whether in practice the two will be the same; and if not, what will be the relationship between them. Clause 21(3) provides that if there is a conflict between an enactment and the code approved under clause 21(2) the former prevails and its requirements are taken to be the proper practice. But the explanation of the new clause seems to imply that generally accepted accounting practice should prevail over existing enactments. Again, the House may wish to ascertain in more detail what are the Government's intentions in this respect.

CONCLUSION

39. We draw to the attention of the House the points raised in paragraphs 37 and 38 above.

CRIMINAL JUSTICE BILL - GOVERNMENT RESPONSE AND GOVERNMENT
AMENDMENTS FOR COMMITTEE STAGE

40. The Committee reported on this bill in our 21st Report of this Session (HL Paper 122). The Government has provided a response to the Committee in respect of its comments in relation to clause 9, which is printed at Annex 5 to this Report.

41. The Committee has also received a letter from Baroness Scotland of Asthal QC, Minister of State at the Home Office, explaining the background to a proposed new clause in Part 5 of the bill concerning a code of practice for police interviews of witnesses notified by the defence. We find both the delegation and the level of scrutiny (which follows that which applies to the amended provision in clause 9) to be appropriate.

EUROPEAN UNION (ACCESSIONS) BILL - GOVERNMENT RESPONSE

42. The Committee reported on this bill in our 21st Report of this Session (HL Paper 122). The Government has responded by way of a letter from Baroness Symons of Vernham Dean, Minister of State at the Foreign and Commonwealth Office, to the Chairman, which is printed at Annex 6 to this Report. The Committee's reply to the letter is also printed at Annex 6.


1   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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