9 December 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 Instruments.
SOCIAL SECURITY CONTRIBUTIONS (TRANSFER
OF FUNCTIONS, ETC.) BILL [H.L.]
1. There are two innovations in the presentation
of this Session's legislation. Each bill is now prefaced with
a ministerial statement about the bill's compatibility with Convention
rights and the Explanatory Notes which used to appear on the covers
of bills are now published separately (and are now much more extensive).
2. The Explanatory Notes give a very full
account of the background to the bill. The Notes state that the
purpose of the bill is to transfer from the Secretary of State
for Social Security to the Inland Revenue and the Treasury both
operational and policy functions in relation to National Insurance
contributions and related matters. The Notes (paragraph 12) explain
that a transfer of functions is normally achieved by an Order
in Council under the Ministers of the Crown Act 1975 but that
procedure cannot be used here as the Inland Revenue does not fall
within the definition in that Act of "Minister of the Crown".
3. There is a commencement power in clause
27(3) and (4) which, as is customary, is not subject to Parliamentary
control. Subsection (4) of clause 21 allows the Secretary of State
to make an order applying subsection (5) rather than subsection
(3) to a contract or class of contracts. There is no Parliamentary
control over this power but this is appropriate because of the
limited technical and administrative nature of the subject matter.
4. All the powers in the bill are subject
to negative procedure. These powers are contained in clauses 7(1)(f)
and (m), 8, 9, 10, 12, 13, 14, 15 (in the new section 170(5) of
the Pension Schemes Act 1993), 22 and 23 and in the amendments
made to existing legislation by paragraphs 21, 26 and 29 of Schedule
6. The Department's memorandum gives an account of each and the
Committee finds is necessary here to refer only to the Henry VIII
powers discussed in the next paragraphs.
HENRY VIII POWERS
5. Power to amend any enactment (including
the bill) is conferred in clauses 22(4)(d) and 23(2). Clause 22
is a power by Order in Council to transfer functions from the
Secretary of State to the Board, or from the Board to the Secretary
of State. It is limited to the functions listed in subsection
(2) and subsection (4) is concerned with "supplemental, consequential
or transitional" matters. In this context the Committee considers
it appropriate that negative procedure (as provided in the bill)
6. Clause 23 is a power by Order in Council
to make provision for Northern Ireland corresponding to provisions
of the bill. Again the Committee considers the negative procedure
7. The Committee has noted the two Henry
VIII powers. There is nothing in the bill which it is necessary
to draw to the attention of the House.
COMMONWEALTH DEVELOPMENT CORPORATION BILL [H.L.]
8. The bill's main purpose is to transform
the Commonwealth Development Corporation into a public company
limited by shares. Initially the government will be the sole shareholder
but the intention is to sell the majority of the shares while
retaining a "Golden Share" to safeguard certain reserved
9. The department's memorandum gives an
excellent account of the two delegated legislative powers in the
bill. The memorandum also gives an account of certain powers which
it describes as administrative. Those powers are not exercisable
by statutory instrument and are not subject to Parliamentary control.
HENRY VIII CLAUSE
10. Clause 18 is concerned with the maximum
shareholding to be retained by the Crown. Subsection (5) allows
the Secretary of State to amend or repeal the clause. An order
under this power is subject to affirmative procedure. The Committee
considers that the case for the power is made in the department's
11. There is only one other delegated legislative
power in the bill. Clause 24(4) and (5) allow the Secretary of
State to designate a company wholly owned by the Crown as a company
associated with the corporation for the purposes of clause 20.
The memorandum explains the need for the power and the justification
for not providing for any Parliamentary control.
12. The Committee has recorded the inclusion
in the bill of a Henry VIII clause. There is nothing in that or
the only other delegated legislative power to which we wish to
draw the House's attention.
EUROPEAN PARLIAMENTARY ELECTIONS BILL
13. This Bill makes provision for elections
to the European Parliament in Great Britain to be conducted using
a regional list electoral system. A Bill for the same purpose
was introduced in the 1997-98 session but failed to be enacted
as a result of disagreement between the House of Lords and the
House of Commons.
14. The Committee reported on this Bill
in its 15th report of last session.
In that report we commented that the Bill raised "important
issues about the way in which elections may be held but these
issues are not within the Committee's remit." The Committee's
report drew the attention of the House to the Henry VIII powers
in the Bill, and considered the negative resolution procedure
provided by the Bill for these powers appropriate. It also listed
the other powers in the Bill. The report made no substantive recommendation
on the powers in the Bill and concluded that there was "nothing
else in the Bill to which the House's attention need be drawn."
15. There is nothing in the Bill reintroduced
this session which the Committee wishes to draw to the attention
of the House. 
1 HL Paper 92. Back
2 This report is also published on the Internet at the House of Lords Select Committees Home Page (http:/www.parliament.uk), where further information about the work of the Committee is also available. Back