6 May 1998
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 laid before Parliament under section 3(3)
of the Deregulation and Contracting Out Act 1994 and on draft
orders laid under section 1(4) of that Act; and to perform, in
respect of such documents and orders, the functions performed
in respect of other instruments by the Joint Committee on Statutory
OF WALES BILL
1. This Bill provides
for a National Assembly for Wales and for the reform of Welsh
public bodies. It is the first of the devolution bills to reach
this House and therefore raises a number of new issues for the
Committee. The Committee's usual role is to consider legislative
powers which are delegated by Parliament to a Minister of the
Crown. The underlying principle of this Bill, however, is that
the Assembly will take responsibility for those executive functions
currently exercised by the Secretary of State for Wales.
2. The Bill contains
three classes of provision which come within the Committee's terms
of reference. First, there are the powers conferred on Westminster
ministers to legislate. Second, there are provisions transferring
the exercise of existing legislative powers to the Assembly created
by the Bill. Thirdly, there are new legislative powers conferred
on the Assembly.
3. The powers conferred
on Westminster ministers to legislate raise no new issues for
the Committee and do not differ in principle from those in any
other bill. We consider these powers in paragraphs 7-10 below.
4. The second category
of power raises the new question of whether it is appropriate
that a power granted by the Westminster Parliament but made subject
to Parliamentary control should be transferred to the Assembly
when the power will cease to be subject to Parliamentary control.
The Committee considers that this is an issue for the House and
that the Committee's function is to consider the effectiveness
of the scrutiny process by the Assembly provided for in the Bill.
Functions of a Minister of the Crown can be transferred to the
Assembly by Orders in Council under clause 22 of the Bill (transfer
of ministerial functions). The Welsh Office estimates that a large
number of powers to make subordinate legislation will be passed
to the Assembly by this means.
Such subordinate legislation will be scrutinised by the Assembly
itself in accordance with procedures set out in clauses 65-68
of the Bill. We consider the adequacy of such scrutiny process
in paragraphs 11-14 below.
5. The third category,
the creation of new legislative powers to be exercised by the
Assembly, raises the most difficult issues for the Committee.
Our tentative view, which we recognise the House will wish to
consider carefully, is that the Westminster Parliament will remain
the supreme legislative body for Wales, and therefore in principle
the grant of any new legislative powers to the Assembly (whether
in the Bill or in future legislation) should be judged against
similar criteria to those which the Committee applies when considering
the propriety and ambit of the grant of delegated legislative
powers to Ministers of the Crown.
6. In relation
to each of the new powers conferred on the Assembly the Committee
considered whether it is appropriate that the power should be
delegated to that body and whether the Bill provides checks on
the abuse of that power which make it appropriate that the power
should be delegated when there will be no control by the Westminster
Parliament over the exercise of the powers. We consider this further
in paragraph 15 below.
7. Powers are conferred
on ministers by clauses 3, 11, 15(5), 17, 26, 37, 40, 50, 76(5),
84(6), 110, 117, 118, 131(4), 134(3), 137(4), 140(3), 141(5),
144, 145, 147, 150, 151, 153 and 158 (commencement) and by Schedules
5 (paragraph 2), 6 (paragraph 1) and 10 (paragraph 7 of the new
Schedule 4 inserted in the Welsh Development Agency Act 1975 and
paragraphs 11, 12, 13, 17, 19 and 20 of that Schedule). There
are Order in Council powers in clauses 12, 22 and 31 and Schedule
6 (paragraph 34). The Welsh Office's memorandum explains the need
for these powers and indicates how they will be used. Where the
power is not subject to affirmative procedure it is subject to
negative procedure (except for the commencement power which is,
as is customary, not subject to Parliamentary control).
8. There are Henry
VIII powers in the following clauses: 22 (transfer of ministerial
functions), 31 (consultation about public appointments), 76 (witnesses
and documents), 84 (loans to Assembly by Secretary of State),
98 (an extension of clause 22), 134 (abolition of the Development
Board for Rural Wales), 140 (abolition of the Land Authority for
Wales), 144 (abolition of Housing for Wales), 145 (accounts, audit
and reports), 147 (transfer of functions of Comptroller and Auditor
General) and 151 (power to amend enactments) and Schedule 7 (paragraph
34). While this is more than in any other bill which has come
before the Committee, they all arise naturally out of the subject
matter and are all subject to affirmative procedure. The Committee
noted that this is, as far as it is aware, the first bill to contain
provisions which, in effect, define Henry VIII provisions in order
to make them subject to affirmative procedure - see clause 31(8)
("which contains provisions in the form of amendments or
repeals of enactments contained in an Act") and the same
words in clause 154(3)(b) and paragraph 34(3) of Schedule 7. There
is no need for such a provision in relation to clause 22 as affirmative
procedure applies to all Orders under that clause.
9. The Committee
considered the Welsh Office's justification for all these powers
and saw no need to draw the special attention of the House to
any of them.
10. In regard to
the non-Henry VIII powers, some are subject to affirmative resolution
and others to the negative procedure. In each case the Committee
considers that the parliamentary control provided for is adequate.
11. Clause 22 provides
for the transfer by Order in Council of Ministerial functions
to the Assembly. It is clear from clause 23(4) that it is intended
to transfer powers to make subordinate legislation. The scale
of the proposed delegation can be seen from the latest draft of
the proposed Order in Council which has been circulated. These
clauses also make it clear that the Assembly can only exercise
transferred powers "in relation to Wales" and that the
Minister may still exercise a transferred power in relation to
Wales for European Community purposes (clause 23(4)). Clause 30
makes further provision about implementing community law and one
consequence of this could be a widening of the Assembly's power
to make subordinate legislation. The Committee noted in subsections
(3) and (5) of that clause that the Parliamentary procedure which
applies when a Minister is acting is disapplied when the Assembly
acts. This is a particular instance of the general provision in
clause 45: subsection (2) disapplies Parliamentary control where
the Assembly makes the subordinate legislation (the only exception
relates to the Statutory Orders (Special Procedure) Act 1945 -
see subsections (3)(e) and (6)).
12. Clause 59 requires
the Assembly to establish a subordinate legislation scrutiny committee.
Its role will presumably be very similar to that of the Joint
Committee on Statutory Instruments. Clause 60 makes further provision
about the scrutiny committee.
13. The vital provision
about the making of Assembly subordinate legislation is Clause
67. Of particular importance are the requirements of laying in
draft and approval by resolution (subsection (2)) and the requirement
of a prior report from the scrutiny committee (subsection (5)(a)).
Clause 65 requires the standing orders of the Assembly to provide
procedures relating to subordinate legislation and clause 66 requires
the procedures to secure that an appraisal is carried out as to
the likely costs and benefits of complying with any proposed subordinate
legislation. Clause 68 allows the procedures to provide for legislating
in a case of urgency. "If the executive committee determines
that, in the particular circumstances, it is not reasonably practicable
to comply with" the requirements of clause 67(2) (affirmative
approval of draft), clause 66(3) (consultation and regulatory
appraisal) and clause 67(5) (report of subordinate legislation
scrutiny committee), the subordinate legislation can be made by
being signed by the authorised person (clause 67(1)). Any subordinate
legislation made in this way is subject to the negative procedure
provided by subsections (3) to (7) of clause 68.
14. The Committee
considers that it is difficult to see how Parliament can create
a Welsh Assembly without granting it delegated powers and providing
for a mechanism to scrutinise those powers. The Committee considers
the proposed mechanism for scrutiny, which, save in cases of urgency,
always requires both a cost-benefit appraisal and the affirmative
procedure, is suitably rigorous.
New powers conferred on Assembly
15. Clause 28 confers
on the Assembly power by order to reform Welsh health authorities
and clause 29 gives similar power in relation to the bodies specified
in Schedule 3 (and these cover a wide range of activities). It
is significant for the future that both these powers include Henry
VIII provisions (clause 28(9) and 29(7)). Clause 113 (relations
with local government) allows the Assembly by order to extend
that clause to relations with other authorities. Clause 122 allows
the Assembly by order to provide a list of equivalent terms in
Welsh and English for use in interpreting subordinate legislation
made by the Assembly. These are the only new delegated legislative
powers given to the Assembly under the Bill. The Committee considers
that they are powers which can properly be delegated to the Assembly;
the fact that all Assembly subordinate legislation requires approval
by resolution of the Assembly provides appropriate control.
16. The new powers
granted to the Assembly should also be considered in the context
of further checks on the exercise of those powers. Clause 110
deserves special mention because it is a fetter on the power of
the Assembly to make subordinate legislation. Clauses 108 and
112 also provide a check on the Assembly's powers. Clause 108
prohibits the Assembly from doing anything which is incompatible
with European Community law or with the rights in the European
Convention on Human Rights which are incorporated into UK law.
Clause 112 gives courts and tribunals power to limit the retrospective
effect of decisions that the Assembly has acted beyond its powers
to make subordinate legislation.
17. The Committee
wishes to draw to the special attention of the House its comments
on the provisions transferring the exercise of existing legislative
powers to the Assembly and the new legislative powers conferred
on the Assembly. It also draws to the attention of the House the
exceptionally large number of Henry VIII powers in the Bill. There
is nothing else in the Bill which the Committee wishes to draw
to the attention of the House.
PUBLIC INTEREST DISCLOSURE BILL
18. This Bill is
intended to protect "whistleblowers" from victimisation.
It operates by way of amendments to the Employment Rights Act
1996. Clause 1 inserts 11 new sections of which the first two
provide definitions of "protected disclosure" and "qualifying
disclosure". A "qualifying disclosure" is a "protected"
disclosure if made in accordance with new sections 43C to 43H.
Section 43F (clause 1)
19. One of the
forms of disclosure that are protected is disclosure to a person
prescribed under section 43F. The section provides for the Secretary
of State to make regulations prescribing persons or descriptions
of persons and the descriptions of matters in respect of which
they are prescribed. Regulations are subject to negative procedure
(section 236(2) of the 1996 Act), which the Committee considers
provides the appropriate degree of parliamentary control.
Section 127B (clause 8(4))
20. Section 127B
applies where a worker has been dismissed for making a protected
disclosure. Subsection (2) allows the Secretary of State to make
regulations providing increased awards "calculated in such
manner as may be prescribed by the regulations". Regulations
are subject to negative procedure (section 236(2)). It is apparently
the intention to follow the compensation model currently available
for health and safety disclosure.
21. There is a
simple commencement power in clause 18(3) and clause 17 is a familiar
provision about making corresponding provision for Northern Ireland.
22. There is nothing
in the Bill which the Committee wishes to draw to the attention
of the House.
REGISTERED ESTABLISHMENTS (SCOTLAND) BILL
TRAFFIC REDUCTION (NATIONAL TARGETS) BILL
23. There are no
delegated legislative powers in these Bills.
1 See the Memorandum by the President of the Council printed in Appendix 1 to the 27th Report of the Joint Committee on Statutory Instruments (HL Paper 88). Back
2 According to the Minister of State, Department of Trade and Industry, speaking at Report Stage in the Commons (House of Commons Hansard 24th April, col 1137). Back