1. Acts of Parliament sometimes confer power
to make, by subordinate legislation, consequential and similar
provision which may include amending other Acts of Parliament.
It is these powers with which the Committee is concerned.
2. Annexes 1 to 12 provide examples of existing
provisions containing such powers, chosen to illustrate a range
of wording and Parliamentary procedures. Each annex sets out the
relevant text, indicates the level of Parliamentary procedure,
and mentions, where applicable, the Government's reasons given
at the time for the provision and the Committee's response. The
Immigration and Asylum Act 2002, section 157(1) and (2) (Annex
and Children Act 2002, section 142(1) and (4) (Annex 2)
Act 2002, section 277(1), (2) and (4) (Annex 3)
and Social Care Act 2001, section 65(1), (2) and (4) (Annex 4)
Justice and Courts Services Act 2000, section 77(1) and (2) (Annex
Act 2000, section 109(1) and (2) (Annex 6)
Services Act 2000, section 127(1) to (3) (Annex 7)
Standards Act 2000, section 119(1) and (2) (Annex 8)
Services and Markets Act 2000, section 426(1) to (3) (Annex 9)
(Scotland) Act 1995, section 105(6) (Annex 10)
Act 1995, section 120(1) and (5) (Annex 11)
Government (Wales) Act 1994, section 54(1) and (2)(e) (Annex 12).
3. Paragraphs 5 to 11 below address some of the
similarities and differences in the various provisions. Paragraphs
12 to 14 discuss the level of Parliamentary control applied to
4. The exercise of powers to make incidental
and consequential provision is not immune from review by the courts.
In considering the validity of the exercise of a power, a court
can be expected to look at the particular words of the enabling
Act in the context of the other provisions of that Act; and to
apply various principles to ascertain the scope of the power.
Among these are that the power may not be exercised for a purpose
outside those which Parliament has (expressly or by implication)
authorised; and that a power to amend primary legislation by subordinate
legislation will be construed narrowly.
TYPES OF POWER
5. No two of the 12 examples are worded identically.
But it is common for some form of incidental or supplementary
provision (as well as consequential provision) to be covered.
This is because the courts are likely to take a strict view of
what is meant by "consequential". The terms "consequential",
"incidental", "supplementary" and "transitional"
are not mutually exclusive; there is a significant degree of overlap.
Incidental or supplementary provision might, for example, fill
in detail which is consistent with the provisions of the Act but
missing from it, or make changes, to other Acts, which represent
the exercise of a choice brought about by the enabling Act and
which are not necessarily a direct consequence of that Act. An
express power to make transitional provision is normally included
when it is known that the power will be used specifically to assist
the changeover from the state of the law before the Act comes
into force to the state of the law when it is fully in force.
But not all provisions of short duration are necessarily transitional.
6. Annex 7 (Postal Services Act 2000) is notable.
The Government introduced a Bill containing a power to make consequential
provision. But during the passage of the Bill, they realised that
this may not have been adequate. They anticipated having to make
changes to legislation which, though clearly arising out of the
Postal Services Act, were not necessarily direct consequences
of it. So the power was apparently not wide enough and they tabled
an amendment to cover supplementary and incidental provision.
7. The examples at Annexes 2, 3, 4, 5, 7, 8 and
9 are all very much variations on the same theme, of which the
key features are these
supplementary (or supplemental), incidental and consequential
provisions are all covered;
the Minister must consider the provision being made
to be "necessary or expedient" (or, in one case - Annex
3 - "appropriate") for the purposes of, in consequence
of or for giving full effect to a provision of the Act. In three
cases (Annexes 3, 7 and 9) provision consequential on or giving
full effect to subordinate legislation made under the Act is also
8. It is clear that some form of Henry VIII power
under which consequential, supplementary and incidental provision
may be made has long been regarded as acceptable. Amongst the
reasons given by Government for these provisions are that the
consequential etc. provisions are too long and detailed for inclusion
in the bill or that unforeseen circumstances must be covered.
This explains why the Henry VIII powers are generally found in
the larger bills or the ones dealing with complex subject-matter.
9. Because identical words are not used in every
case, there is room for debate about whether one particular form
of words is wider, or narrower, than another. For example, the
original formulation of what became section 157 of the Nationality,
Immigration and Asylum Act 2002 (Annex 1) provided that the Secretary
of State may make provision "which he thinks necessary in
consequence of or in connection with a provision of this Act".
This contained in one respect a stricter test than usual - "necessary"
rather than "necessary or expedient" or "appropriate",
but conversely was perceived as wider in that the Secretary of
State had merely to consider the provision to be "necessary
in connection with a provision of this Act" rather
than a "supplementary [or] incidental provision
for the general purposes, or any particular purpose, of this Act
for giving full effect to" any provision made by
or under the enabling Act (Enterprise Act 2002 - see Annex 2).
10. The House may wonder why all Bills do not
use precisely the same words to reflect what might be considered
a common intention. This may be partly because the drafting of
the provision must be consistent with other provisions in the
same Bill. The Bill will cover specific items which the Government
knows it wishes to cover when exercising the power. Conversely,
the provision will not necessarily cover something which is not
known to be needed.
11. Were there to be a standard form of provision,
it might have to be drafted in wide terms so as to reflect every
possible use likely to be made of it under any Bill. (Even so,
there would be "extras" in particular Bills, such as
express power to amend the Act itself.) But Parliament might be
prepared to accept, on occasions, a provision wider than was strictly
necessary in a particular case, if it was felt there were other
12. As with the wording of the provisions themselves,
there is some variation in the level of Parliamentary control
applied. Of the twelve examples, seven provide for negative procedure
(Annexes 3, 4, 6 and 9 to 12), one for affirmative (even where
no amendments of primary legislation are involved - Annex 7) and
four for affirmative for amendments of Acts, but otherwise negative
(Annexes 1, 2, 5 and 8). Of the seven provisions which follow
broadly the same drafting formula (see paragraph 7 above), three
provide for negative procedure, one for affirmative and three
for affirmative only for amendments to Acts.
13. In connection with the Local Government (Wales)
Act 1994, the Committee suggested that the House might consider
whether the affirmative procedure might be more appropriate because
(amongst other things) the power extended to making supplemental
provision. However, this approach has not been suggested more
14. This lack of uniformity is not unexpected.
The Government will provide in a Bill for a procedure which is
considered appropriate to the use likely to be made of that power
in that Bill. The Committee will react to what is provided in
the Bill. It will draw attention to cases where the bill provides
for something outside the range of what is considered appropriate.
Over a period of time, this builds up a picture of what is likely
to be acceptable but will not result in uniformity, because each
case is considered in the context of different subject-matter.