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.
ORDERED TO REPORT
HENRY VIII POWERS
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
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 concerning incidental,
consequential and similar provision more generally.
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.
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
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.
We note that of the twelve examples we considered,
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.
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
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