H O U S E of L O R D S
SCRUTINISING THE EXECUTIVE - THE DELEGATED POWERS AND DEREGULATION COMMITTEE
Role of the House of Lords
An important function of the House of Lords is to keep a watchful
eye on the activities of the Executive (government) to ensure
that it does not exceed or abuse its powers or take powers it
should not have i.e. that its powers are appropriate.
For practical purposes and in order not to overload an already
busy legislature, powers are delegated to government by Parliament
in primary legislation, i.e. it is given authority to make rules
having the force of law without referring back to Parliament for
time consuming primary legislation. This is done by secondary
legislation (or delegated legislation) through Statutory Instruments
(SIs), Orders and Regulations. Procedures exist for examining
these, but they come into play after the parent act or primary
legislation has been through Parliament e.g. SIs uprating certain
annual grants and benefits or disentitling certain categories
of people to social security benefit where the basic rules have
been agreed but the rates or amounts need to be altered annually.
The Delegated Powers Scrutiny Committee
The House of Lords has established procedures whereby all bills
are examined before they begin their passage through the House.
The Delegated Powers Scrutiny Committee was established in 1992.
(The Commons has no such committee). Its chief concern is with
the extent of legislative powers proposed to be delegated by Parliament
to government ministers. The Committee was formed as part of
a move to increase control of the Executive while at the same
time saving time on the floor of the House.
Before the Committee was set up, Bills with contentious delegated
powers took up large amounts of time on the floor of the House
e.g. discussion on the Education (Student Loans) Bill 1990 was
almost wholly concerned with the extent of delegated powers.
Now, there is an informal understanding that when the Committee
has approved provisions in a bill for delegated powers, the form
of those powers should not normally be the subject of debate during
the bills subsequent passage.
Remit and Role of the Committee
It is required 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
The Committees role is to advise the House of Lords; it
is for the House to decide whether or not to act on the Committees
recommendations. The Committee itself has no power to amend bills,
although amendments are frequently tabled in response to its recommendations.
It was given the additional role of scrutinising deregulation
proposals under the Deregulation and Contracting Out Act 1994
(May 1994). The House of Commons Deregulation Committee has similar
functions with regard to deregulation proposals. The two Committees
operate independently but have co-operated closely on deregulation matters.
Members and Working Methods
The Committee has eight members. It takes evidence and meets
regularly when Parliament is sitting, according to the legislative
workload. As most of its meetings are deliberative, it usually
meets in private. Oral evidence is heard in public, like other
parliamentary select committees. The Committee issues separate
reports on draft deregulation orders and on bills.
The Scrutiny Process
The Committee takes evidence in writing on each public bill from
the relevant government department. Sometimes it also hears oral
evidence. The written evidence -
- identifies provisions for delegated legislation;
- describes their purpose;
- explains why the matter has been left to delegated legislation;
- explains the degree of parliamentary control provided
for the exercise of each power (affirmative, negative, or none
at all) and why.
The Committee does not report on supply bills, as the Lords do
not amend these. It does not consider consolidation bills because
they do not seek to introduce new law.
In examining a bill the Committee:
- considers whether the power to make secondary legislation
is appropriate. This includes expressing a view on whether
the power is so important that it should only be one granted
by primary legislation;
- always pays special attention to Henry VIII powers (powers
to change laws without parliamentary action). These provisions
enable primary legislation to be amended or repealed by subordinate
legislation with or without further parliamentary scrutiny;
- considers what form of parliamentary control is appropriate
and, in particular, whether the proposed power calls for the
affirmative rather than the negative resolution procedure;
(i.e. whether a debate should be guaranteed in either or both
- considers whether the legislation should provide for
consultation in draft form before the regulation is laid before Parliament, and
whether its operation should be governed by a Code of Conduct.
Effects of the Scrutiny
An example of how the scrutiny process works can be seen in the
1997 Education (Student Loans) Bill. This was introduced, to
amend the 1990 Act, essentially to enable the debt to be privatised.
Clause 2 extended the power in the 1990 Act to make regulations.
This had been the subject of extended discussion in 1990 which
eventually resulted in the first regulations i.e. those setting
up the scheme being subject to affirmative resolution (i.e. subject
to more parliamentary scrutiny). This was important, otherwise
it would have enabled interest rates, repayment arrangements etc.
to be set without any control.
In scrutinising the 1997 Bill, the Committee was concerned about
the effect of inflation proofing of the new loans
and the fact that there was a not
insignificant measure of discretion left to the Secretary
of State. It therefore recommended that the House consider whether
the first time the extended power was used, it should be subject
to the affirmative procedure.
Part 1 of the Deregulation and Contracting Out Act 1994 created
a special kind of delegated legislation, usually referred to as
deregulation orders. Under that Act, deregulation
orders may be made by any Minister to amend or repeal any enactment
of primary legislation with a view to removing or reducing any
administrative or bureaucratic burden, if the Minister is of the
opinion that this can be done without removing any necessary protection. The 1994
Act provides for a two-stage process of parliamentary scrutiny:
- The proposal, together with explanatory material is laid before
Parliament as a draft order. The Committee and its Commons
equivalent have 60 days in which to report.
- The government lays a draft order before Parliament, either
in its original form or amended to take account of the two Committees
views, for approval by resolution of each House. This can
only be done in the Lords after the Committee has made a second
report on it.
The Examining Process
The Committee considers whether:
- It is intra vires (i.e. is Government entitled to do what
- It removes a burden;
- It removes any necessary protection; (the
1994 Act requires that the amendment or repeal of existing
primary legislation must be done without removing any
- Consultation (also required by the 1994 Act) has been
Effects of the Examination
The proposal for the Draft Deregulation (Sunday Dancing) Order
1995 is one example which shows the effect of the Scrutiny Committees
The Sunday Observance Act 1780 prohibits charging for public dances
held on Sundays. The deregulation proposal would have exempted
dances from the 1780 Act, thus allowing premises to be licensed
for Sunday dancing. It would also have extended the permitted
hours for the sale of alcohol at dances on Sunday nights. The
Committee took oral and written evidence from a wide range of
witnesses. It rejected the proposal, on two grounds: that the
subject matter was not suitable for the fast-track procedure under
the 1994 Act; and that consultation had been inadequate.
The Delegated Powers and Deregulation Committee
Telephone: 0171-219 3233 Fax: 0171-219 2571
|H O U S E of L O R D S|
S W 1 A 0 P W
020 7219 3107