Select Committee on Delegated Powers and Regulatory Reform Third Report


APPENDIX 2

INTRODUCTION

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 examples are:

·  Nationality, Immigration and Asylum Act 2002, section 157(1) and (2) (Annex 1)

·  Adoption and Children Act 2002, section 142(1) and (4) (Annex 2)

·  Enterprise Act 2002, section 277(1), (2) and (4) (Annex 3)

·  Health and Social Care Act 2001, section 65(1), (2) and (4) (Annex 4)

·  Criminal Justice and Courts Services Act 2000, section 77(1) and (2) (Annex 5)

·  Utilities Act 2000, section 109(1) and (2) (Annex 6)

·  Postal Services Act 2000, section 127(1) to (3) (Annex 7)

·  Care Standards Act 2000, section 119(1) and (2) (Annex 8)

·  Financial Services and Markets Act 2000, section 426(1) to (3) (Annex 9)

·  Children (Scotland) Act 1995, section 105(6) (Annex 10)

·  Environment Act 1995, section 120(1) and (5) (Annex 11)

·  Local 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 the provisions.

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 covered.

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 … appropriate for the general purposes, or any particular purpose, of this Act or … 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 benefits.

PARLIAMENTARY PROCEDURE

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 recently.

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.



 
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