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.
ANTI-SOCIAL BEHAVIOUR BILL
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
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.
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.
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
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
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.
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.
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.
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.
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
- 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.
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
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)
23. This bill contains no delegated powers.
DEALING IN CULTURAL OBJECTS (OFFENCES)
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.
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
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 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.
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
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
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
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.
39. We draw to the attention of the House the
points raised in paragraphs 37 and 38 above.
CRIMINAL JUSTICE BILL - GOVERNMENT RESPONSE
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
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