Select Committee on Delegated Powers and Regulatory Reform Ninth Report



9.  This is a private member's bill introduced by Lord Lester of Herne Hill. The bill makes provision for eliminating discrimination and promoting equality between different people, replacing a number of existing provisions, including the Equal Pay Act 1970, the Sex Discrimination Act 1975 and the Race Relations Act 1976. The bill does not extend to Northern Ireland

10.  Explanatory Notes to the bill are available and give a helpful synopsis of the bill's provisions.[3]


11.  There are delegated powers to make orders, rules or regulations at clauses 4(5), 7(4), 24(4) and (5), 25(1)-(3), 27(1) and (2), 28(2), 32(5) and (6), 36(5), 36(6)(b), 37(5) and (6), 38(6) and (8), 53(2), 64(1), 80(4), 92(2) and (3), 93(2)(a) and 94(4) and Schedule 1, paragraphs 1 to 6, 9 and 11, Schedule 2, paragraphs 10(3), 12(2), 22,23, 27, 36(3) and 52(7), Schedule 3, paragraphs 2(2), 6, 12 and 14, Schedule 5, paragraph 3(3) and Schedule 6, paragraphs 2, 3 and 5. Most of the powers are conferred on the Secretary of State.

12.  With three exceptions, orders and regulations under the bill are subject to negative Parliamentary procedure. The exceptions are orders under clauses 25 and 28 (which are subject to affirmative procedure) and commencement orders under clause 94(4) (which are not subject to Parliamentary procedure).

13.  The bill also provides for codes of practice to be issued by the Equality Commission for Great Britain. Failure to observe a provision of a code of practice can be taken into account in proceedings before a court or tribunal under Part 5 of the bill (clause 45(2)). Schedule 5 provides a procedure for making the codes, which includes a requirement to lay the draft before Parliament (subject to a negative resolution procedure) and for a day to be appointed by order (again, subject to a negative resolution procedure) for the coming into effect of a code.

Clause 4(5) and Schedule 1

14.  Schedule 1 contains provisions about when a person has, or is to be taken as having, a disability. This includes extensive powers for the Secretary of State to make regulations defining the limits of disability (see paragraphs 1(2) and (3), 2(3) and (4), 3(2) and (3), 4(2), 5, 6(3), 9(1) and (2) and 11(2)). The Committee accepts that it is reasonable for these details to be left for regulations in this area (as they are under the Disability Discrimination Act 1995). Clause 4(5)(a) of the bill confers, in addition to the powers in Schedule 1, a power for the Secretary of State to amend Schedule 1 by varying or removing any existing provision or adding new provisions. The need for this additional provision is not addressed in the Explanatory Notes. However, given that the power in clause 4(5)(a) is limited to defining "disability", the Committee finds the delegation acceptable, but recommends that the affirmative procedure should apply.

Clauses 92 and 93

15.  Clause 93(2)(a) enables any statutory instrument under the bill to make, in Acts, "such adaptations, amendments or repeals as the person making it considers appropriate in consequence of this Act or any provision made under it". This applies as much to orders under clause 92 (consequential and transitional provision) as to other statutory instruments. The power in clause 92 is clearly tied to the purposes of the bill and any amendment to an Act must, under clause 93, be in consequence of the bill or a provision made under it. The Committee, therefore, finds the extent of the power acceptable, but (as no justification to the contrary is given in the Explanatory Notes) again recommends that the affirmative procedure should be used when clause 93(2)(a) is relied on. This accords with our conclusions in our recent report on Henry VIII powers to make incidental, consequential and similar provision.[4]


16.  Save for the recommendations in paragraphs 15 and 16 above, there is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House.

3   The Explanatory Notes are available from The Odysseus Trust, 193 Fleet Street, London EC4A 2AH or at Back

4   3rd Report, Session 2002-03, HL Paper 21. Back

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003