10 OCTOBER 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.
WARM HOMES AND ENERGY CONSERVATION BILL
1. This is a Private Member's Bill which would require
the Government to devise a strategy about improving the well-being
of those who find it difficult to pay for keeping their homes
warm. It does not provide the Government with new powers but would
require it to use existing powers. The bill does not require local
authorities to give effect to the strategy but clause 2(5) requires
the Secretary of State (and the Welsh Assembly) "to take
such steps as are in its opinion necessary to implement the strategy".
Clauses 2(2)(d) and (3) require the problem to be solved within
16 years of Royal Assent.
2. The only power to change the strategy is in clause
2(6)(b) and that is limited to revision to take account of progress
made in achieving objectives and target dates. If a successor
government believes it has been left an impossible task - or,
indeed, that the objectives involve a welfare policy which is
mistaken or unaffordable - it would be faced with only two options.
The first would be fresh legislation, the second would be to use
the power in clause 1(2) to make regulations which redefined the
words "in fuel poverty" so as to make possible the task
of implementing the inherited strategy.
3. It was neither the duty nor the wish of this Committee
to criticise the policy underlying the bill, which has the potential
to affect the 20 per cent of households which, according to the
Government's own definition, currently suffer from fuel poverty
(Q 37). Our role is to discuss delegated legislative powers and
the parliamentary control provided for them. It followed that
our discussion focused on Clause 1(2) of the bill.
4. Although this is a Private Member's Bill it is
supported by the Government. Because of our concern about the
delegated power we asked for oral as well as written evidence
from the Department of the Environment, Transport and the Regions
(DETR). This is printed in Annex 1 to this report.
5. The Committee also received written submissions
from Age Concern, the Association for the Conservation of Energy,
Tom Brake MP,
Friends of the Earth, HODIS (an Alliance of Housing Agencies and
Voluntary Organisations of and for Disabled People) and NEA (the
national energy action charity). All these submissions claimed
that if the Committee recommended the amendment of the bill, the
practical effect of this recommendation would be that the bill
would be lost. These submissions are also printed in Annex 1 to
this report. Some members of the Committee received a number of
similar letters from individuals, all supporting the bill and
expressing concern lest it be lost.
6. The representative of the DETR confirmed that
regulations made under Clause 1(2) would be essential to the scope
and implementation of the legislation, and that clause 1(2)(b)
allowed the regulations to provide a different definition to that
on the face of the primary legislation.
This could enable the Government to change its strategy.
7. The power of amendment given by clause 1(2) (made
a Henry VIII power by clause 1(2)(b)) is at large and not confined
to the period before the strategy is made.
8. We considered whether the bill contained so little
detail that it was effectively a "skeleton bill". We
concluded that Parliament had control over the general policy
and that this was not a skeleton bill. It is, however, a bill
which applies to a subject matter which can be widened or narrowed
by regulations. This suggests to us that Parliament should have
more control than the negative procedure proposed.
9. During the second reading debate in the House
of Commons, when the bill (which has since been heavily amended)
was welcomed by speakers on both sides of the House, the question
of making regulations under it attracted concern by one speaker:
A Government of either political party could produce
regulations which fell short of what was necessary, for reasons
of their own. Making the Bill subject to negative procedure does
not give the House sufficient power to push the Government and
make them think again. Will my hon. Friend consider whether it
would be realistic to change it to an affirmative resolution so
that the House can have greater control and more of a say in what
the Government of the day may or may not want to do in those regulations?
10. We were seriously concerned about the powers
in clause 1(2) of the bill. While we accept that the powers in
clause 1(2)(a) can be properly exercised by secondary legislation,
they have very considerable cost and policy implications and we
do not think that the negative resolution procedure is appropriate.
The power in clause 1(2)(b) would enable a completely different
definition of fuel poverty to be substituted for the existing
definition. Since this definition is central to the bill, a fundamental
change to the definition would turn the bill into something very
different from what it is now. This is not something that should
be done by secondary legislation.
11. It appeared from the evidence that the DETR was
mainly concerned with a possible need to fine-tune the definition
in the light of the responses to the Government's forthcoming
consultation on a draft Fuel Poverty strategy. The DETR accepted,
in oral evidence (Q 18), that it might be possible to alter clause
1(2) so as to confer a limited power to alter the definition of
fuel poverty for the purpose of fine-tuning only. If this could
be done, and subject to the affirmative resolution procedure being
used, we would regard this as acceptable.
12. The scope of this bill is determined by the definition
of living in fuel poverty, but it enables regulations, subject
only to negative resolution procedure, to substitute a different
definition. The Committee considers that Parliament cannot be
confident that the bill will not be amended by regulation so as
to apply to circumstances which are outside those contemplated
by Parliament in approving the bill.
13. There is a difficulty for the House of Lords
in considering Private Members' bills originating in the House
of Commons this late in the parliamentary session. In the House
of Commons, unlike the House of Lords, "private members'
time" is strictly limited. House of Commons Standing Order
No 14 provides for 13 Fridays on which private Members' bills
have precedence over Government business.
There are no more such Fridays left this session. On rare occasions
the Government provides some of its own time for the discussion
of a private Member's bill in the House of Commons. This sometimes
happens to enable discussion in the House of Commons of Lords
amendments to private Members' bills received at a late stage
of the session.
But at present, although the Government supports this bill, there
is no guarantee that the Government will make some of its own
time available for the discussion of any amendments made by the
Lords to it in the House of Commons.
14. We have considered carefully the suggestion made
to us during oral evidence and in the subsequent written submissions
that amending a Private Members' Bill at this late stage in the
session might lead to its failure, the assumption being that the
House of Commons would decline to make parliamentary time available
to consider the Lords amendments which would be involved (QQ 18-19,
39-40). We nevertheless felt it right to identify those recommendations
which we would make if this were a government bill. All of these
are of a technical and limited nature and should not take up much
parliamentary time in either House.
15. If this were a Government bill we would make
the following recommendations:
- the bill should be amended to extend the ambit
of clause 1(2)(a) so as to limit changes of definition to ones
of fine-tuning in the light of changed technical considerations;
- clause 1(2)(b) should be deleted;
- the power in clause 1(2) should be made subject
to the affirmative resolution procedure.
16. We recognise that the House will also have
to consider the fact that this is a Private Member's Bill and
that unless a small amount of Government time were to be provided
in the Commons to consider any Lords amendments to it the bill
would be likely to fall for lack of time. The bill clearly has
widespread support and the potential to affect the well-being
of very many people. It will therefore be for the House to decide
what view to take if it considers that these amendments are appropriate
but members are nevertheless told that the making of any amendment
would kill the bill because there is no more time for private
members bills in the House of Commons this session. If this were
to be the case we consider that it would obviate the work of the
House of Lords as a revising Chamber. We would, however, understand
why, in the case of a benignly intentioned bill such as this,
the House of Lords might feel compelled to stifle its protests
and let the bill pass unamended.
TRANSPORT BILL GOVERNMENT AMENDMENTS
FOR REPORT STAGE
17. We reported on this bill in our 20th report of
The Government has now invited the Committee to consider its amendments
for Report Stage and the Department of the Environment, Transport
and the Regions has provided a memorandum discussing those amendments.
This is printed in Annex 2 to this report. The amendments cover
five topics, listed at paragraph 2(i) to (v) of the memorandum,
but only those listed at paragraphs 2(i), (ii) and (v) had been
tabled by 10 October, when the Committee met to consider them.
18. For the convenience of the House, the amendment
references, where available, are as follows:
- 2(i) bus lane enforcement - tabled on 9 October
(HL Bill 113(d))
- 2(ii) railways - on 5 October (HL Bill 113(b))
- 2(iii) driver training - not yet tabled
- 2(iv) streetworks - not yet tabled
- 2(v) London bus service permits - tabled on 6
October (HL Bill 113(c))
19. The Committee thought that it would be for the
convenience of the House if we were to report on the proposals
in the memorandum even where the amendments were not yet available.
Our comments on those amendments which have not yet been tabled
are of necessity on the basis that the amendments when tabled
do no more than give effect to the proposals in the memorandum.
20. None of the proposals outlined in the memorandum
raises issues which the Committee wishes to draw to the attention
of the House.
FUR FARMING (PROHIBITION) BILL - GOVERNMENT
21. We reported on this bill in our 26th report of
Clause 5 of the bill provides for the making of a compensation
scheme for existing businesses. The scheme to be made by the Minister
is to be made by order subject to negative procedure. Our understanding
of the clause was that it gave the Minister a discretion whether
or not to compensate "income" and that he had not decided
whether to do so. We considered that the question of whether
or not compensation should include loss of "income",
which has important Human Rights implications, should not be left
to ministerial discretion. We therefore recommended the amendment
of clause 5 to make the Government's intentions clear.
22. The Ministry of Agriculture, Fisheries and Food
has now confirmed, in a letter published in Annex 3 to this report,
that ministers have decided that an amendment should be put forward
at Lords' Committee stage to commit the Ministry to include loss
of "income" in the compensation scheme. The Committee
welcomes this response to our recommendation.
1 Member of Parliament for Carshalton and Wallington
and Liberal Democrat Shadow Environment Minister. Back
2 Oral evidence, QQ 7-8. Back
3 House of Commons Hansard 10 March 2000 col. 1304. This concern
did not lead to the amendment of the bill in the Commons to provide
for the affirmative resolution procedure. Back
4 Erskine May, 22nd edition (1997), p 270. Back
5 Government time was thus made available in the House of Commons
on 19 and 20 March 1997. See Erskine May, p 280. Back
6 HL Paper 77. Back
7 HL Paper 96. Back
8 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