25 JULY 2000
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.
POLICE (NORTHERN IRELAND) BILL
1. Although the subject matter of this bill is controversial,
the delegated legislative powers (with one exception) are not
in themselves controversial. The exception is clause 52 "regulations
as to emblems and flags" which is discussed below. Apart
from commencement orders all delegated legislation under the bill
is subject to negative procedure.
2. There are delegated legislative powers in clauses
5(1), 15(2), 26(c), 28(1), 41(3), 43(1), 44(1), 45(2), 46(3),
47, 49(2), 52(1) and (2), 62 (extension of existing power to make
regulations under the Police (Northern Ireland) Act 1998), 64(6),
67(1), 69(2) (amendment of Police and Criminal Evidence (Northern
Ireland) Act 1989) and 75 (commencement) and Schedules 1 (paragraphs
3(2), 7(13) and (14(1)) and 3 (paragraph 16). This report discusses
only those provisions which the Committee considers might be of
particular interest to the House. The remainder are provisions
which the Committee sees as appropriate delegation and subject
to appropriate Parliamentary control.
3. This clause provides that the Chief Constable
may contract-out certain recruitment functions (these exclude
the recruitment of senior officers and senior members of the police
support staff). The Chief Constable will exercise this power in
accordance with regulations made by the Secretary of State who
is required to consult those persons or bodies listed in subsection
(2) before making any regulations. The Committee sees this as
appropriate delegation with appropriate Parliamentary control.
4. Clause 39 provides for the Chief Constable to
appoint police trainees in accordance with regulations under clause
41(3). Subsection (1) of clause 45 requires him to do so by appointing
on any occasion equal numbers of persons "who are treated
as Roman Catholic" (see subsections (7) and (8) for an explanation
of this term) and persons who are not so treated. Subsection (2)
allows the Secretary of State to "amend subsection (1) in
its application to the making of appointments under section 39
on any occasion specified in the order". Orders can only
be made after consulting the Northern Ireland Policing Board and
the Chief Constable. Presumably this power is needed in case there
are insufficient qualified applicants from one community to allow
the recruitment of the necessary number of officers. The power
looks like a Henry VIII power ("amend subsection (1)")
but it is not concerned with changes to the statute book, only
with modifying it in relation to one recruitment round. Having
considered the circumstances the Committee considers that the
negative procedure provided is appropriate.
5. Subsection (3) makes similar provision in respect
of appointments of support staff under clause 4. We see negative
procedure as appropriate here also because the power relates to
temporary provisions in respect of relatively minor powers.
6. Clause 46(2) provides for the expiry of the exceptional
"50:50 recruitment" measures after three years, and
Clause 46(3) enables them to be renewed. The power is subject
to the negative resolution procedure, and it is the only significant
power in the bill which is not subject to a specific requirement
This is a sensitive power, and we can see a strong case for
amending the bill to provide for the affirmative procedure. If
the Government would prefer, however, we would be content with
the negative procedure provided it were accompanied by an obligation
on the Secretary of State to report to Parliament before making
7. This clause requires police officers to inform
the Chief Constable if they are members of any of the organisations
listed in subsection (1). Subsection (2) is a Henry VIII power
allowing the Secretary of State to make an order (subject to negative
procedure) amending subsection (1) by adding or removing an organisation
or amending a reference to any organisation. The Committee
considers that amending or removing an organisation is of such
political importance that it should be done by affirmative instrument.
8. This clause allows the Secretary of State to make
regulations about the design and use of an emblem and a flag for
the police. Before making regulations he must consult the Board,
the Chief Constable and the Police Associations. The Committee
considers that these matters are of such political importance
as to require the endorsement of Parliament by the application
of affirmative procedure.
9. This Schedule is concerned with the constitution,
staff and procedures of the Northern Ireland Policing Board. Paragraph
3(1) provides that the Board shall consist of not less than 14
nor more than 19 members appointed by the Secretary of State.
Paragraph 3(2) allows the Secretary of State to make an order
amending either or both of those numbers. The Committee considers
that the negative procedure provided is appropriate for this limited
Henry VIII power.
Codes and Guidance
10. There are a number of provisions in the bill
which allow the issuing of codes or guidance. In addition clause
24 allows the Secretary of State to determine the long term objectives
for the policing of Northern Ireland. Subsection (3) of that clause
requires the Secretary of State to lay before Parliament a statement
of these objectives.
11. Clause 51 allows the Secretary of State to issue
guidance as to the use of equipment for maintaining or restoring
public order. Before issuing guidance he must consult the Board,
the Chief Constable and the Police Association and must publish
any guidance "in such manner as he thinks appropriate."
12. There are provisions about codes in clauses 19,
27, 50 and 69 and in paragraph 6(2) of Schedule 3. The codes under
clauses 19 and 50 are issued by the Board while the other codes
are issued by the Secretary of State. While these codes are important,
the Committee have found it necessary to refer in detail in this
Report only to clause 69. That clause inserts in the Police and
Criminal Evidence (Northern Ireland) Order 1989 an Article concerned
with the video recording of interviews. The inserted Article corresponds
to the equivalent provision in the Police and Criminal Evidence
Act 1984 and contains a power to make an order requiring the video-recording
of interviews of persons suspected of the commission of criminal
offences (or a specific description of offences).
13. The Committee considers that the great majority
of powers in this bill are appropriately delegated and that the
negative procedure provided is appropriate in most cases. We have
made the following three recommendations:
- affirmative procedure should be applied to
the powers in clauses 49(2) and 52;
- the power in Clause 46(3) should either be
made subject to the affirmative procedure or accompanied by an
obligation on the Secretary of State to report to Parliament.
PROTECTION OF ANIMALS (AMENDMENT) BILL
14. This bill contains no delegated legislative powers.
COUNTRYSIDE AND RIGHTS OF WAY BILL - FURTHER
GOVERNMENT AMENDMENTS FOR COMMITTEE STAGE AND GOVERNMENT RESPONSE
TO THE COMMITTEE'S 24TH REPORT
15. The Committee reported on this bill in its 24th
in which we made a number of substantive recommendations concerning
the delegated powers. In our 26th Report
we reported on a Government amendment for Committee Stage.
16. The Department of the Environment, Transport
and the Regions has submitted a further supplementary memorandum
on further Government amendments for Committee stage. This is
printed in Annex 2 to this Report. The Committee sees nothing
in these amendments which it wishes to draw to the attention of
the House because, where appropriate, the powers are made subject
to the affirmative resolution procedure. The Committee has been
informed that minor drafting amendments to these amendments are
likely, but we understand that these will not change their substance.
17. The Committee has also received an interim Government
response to the Committee's 24th report on this Bill. This is
printed in Annex 3 to this report.
GOVERNMENT RESOURCES AND ACCOUNTS BILL
- CONSIDERATION OF COMMONS AMENDMENTS TO THE LORDS AMENDMENTS
18. The Committee reported on this bill in its 10th
when we said that there was nothing in the bill which we wished
to draw to the attention of the House. We subsequently also reported
on Government amendments to the Bill.
19. Following the Commons disagreement to a number
of Lords amendments on 24 July the Commons has proposed a further
amendment to the Bill relating to the powers of the Comptroller
and Auditor General. This new order-making power would be subject
to the affirmative resolution procedure, which we consider appropriate.
1 Paragraph 2 of the memorandum by the Northern Ireland
Office emphasises the importance of this consultation. Back
2 HL Paper 86. Back
3 HL Paper 96. Back
4 HL Paper 47. Back
5 This report is also published on the Internet at the House of
Lords Select Committee Home Page (http://www.parliament.uk), where
further information about the work of the Committee is also available. Back