Select Committee on Delegated Powers and Regulatory Reform Third Report




SPECIAL REPORT

11 December 2002

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

HENRY VIII POWERS TO MAKE INCIDENTAL, CONSEQUENTIAL AND SIMILAR PROVISION

INTRODUCTION

This report arises from the debate on Third Reading in the House of Lords of the Nationality, Immigration and Asylum Bill (now Act) about a new clause which was inserted at that stage to permit the Secretary of State by order to make provision, including amendment of enactments, in consequence of or in connection with a provision of the bill. In our report on the new clause[2] we noted that such provisions were not unprecedented and concluded that the delegation and the level of scrutiny in the particular instance were sufficient; we expressed concern, however, about the late stage at which the amendment had been introduced and about the reasons given to explain the need for such provision.

During the debate on the Humble Address, our Chairman indicated that this Committee would be considering the issue of Henry VIII powers[3] concerning incidental, consequential and similar provision more generally.[4] We now report our conclusions. Attached as Appendix 2 is a paper setting out the issues we considered and giving twelve examples of the type of provision concerned. There is also attached, in Appendix 3, a letter from the First Parliamentary Counsel dated 9 December 2002.

PRINCIPAL QUESTIONS

We have considered three questions:

·  Is there a case for using Henry VIII powers to make incidental, consequential and similar provision?

·  If so, should there be a presumption that the same form of words should be used in every case?

·  What is the appropriate level of Parliamentary scrutiny?

 

The case for Henry VIII powers to make incidental, consequential and similar provision

We were critical of the reasons given by the Government for the late inclusion of the Henry VIII powers in section 157 of the Nationality, Immigration and Asylum Act. We have no doubt, however, that there are occasions when Henry VIII powers to make incidental, consequential and similar provision are justified: for example, when the number of incidental, consequential etc. amendments would cause a disproportionate increase in the length of a bill or when, as a matter of practicality, it would be difficult to anticipate the full extent of such amendments during the passage of a bill.

Standard words

We note that of the twelve examples we considered,[5] each is worded differently. We think that it is debatable whether there should be a presumption that standard wording should be used (with a requirement that any departure from that wording should be explicitly justified). We recognise that such an arrangement would have the benefit of making legislation clearer and simpler. We note, however, the point raised by the First Parliamentary Counsel that standard wording would have to be comprehensive and would therefore run the risk of being broader than necessary in a particular case. In the light of the comments by the First Parliamentary Counsel, we are persuaded that the Government should, in the Explanatory Notes accompanying any new bill, as well as in their memorandum to this Committee, offer an explanation of the reasons why a particular form of wording has been adopted in each case.

Parliamentary scrutiny

We note again with regard to the twelve appended examples that, as with their wording, the level of Parliamentary scrutiny varies. In some cases the negative procedure is used; in some the affirmative; and in others the affirmative procedure is used if an enactment is to be amended but otherwise negative. We are not surprised that this is the case. We recognise that in some instances the negative procedure provides a sufficient level of Parliamentary scrutiny. We take the view, however, that there should be a presumption in favour of the affirmative procedure and that reasons for any departure from the affirmative procedure should be set out in full in the Explanatory Notes accompanying a bill and in the memorandum submitted to this Committee.




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

2   28th Report ( Session 2001-02). Back

3   Powers which confer on Ministers the ability to amend Acts of Parliament by subordinate legislation are often referred to as "Henry VIII powers". Back

4   HL Deb (Session 2002-03), col 488. Back

5   See Appendix 2. Back


 
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