22 NOVEMBER 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.
COUNTRYSIDE AND RIGHTS OF WAY BILL - CONSIDERATION
ON THIRD READING
1. The Committee has already reported six times on
this bill and Government amendments to it.
We reported on Report Stage amendments in our 32nd and 33rd Reports
and did so by reference to the memoranda which the Department
had supplied. We commented that we saw nothing in the amendments
discussed in the memoranda to which we wished to draw the attention
of the House. Unfortunately (and unbeknown to the Minister) an
important amendment was left out of the memoranda and so was not
covered by our Reports.
2. The omitted amendment introduced a new clause
(Vehicular access across common land etc.) into the bill.
The purpose of this clause, clause 68 in the revised print of
the bill, is, in the words of the Minister at Report stage, "to
protect property owners who have been driving across common, or
similar, land for many years and who are now faced with having
to pay an excessive fee to the landowner for acquiring a legal
right to do so."
The amendment gives the Secretary of State the power to make regulations,
which will contain the details of the scheme, which is expected
to be quite complex. The clause makes these regulations subject
to the negative resolution procedure.
3. Although the House agreed to the new Clause, it
also debated an amendment (No. 196H) which would have ensured
that regulations made under the new clause were subject to the
affirmative resolution procedure. In response, the Minister said:
"I do not believe that
the Delegated Powers and Deregulation Committee has put forward
an explicit view that the negative resolution procedure is incorrect.
If the Committee were to say that the affirmative resolution procedure
should be used, we would do so. However, I do not believe that
the amendment is appropriate until the committee comes to such
The Minister's comments about the views of the Committee
arose out of the misapprehension that all the Government amendments
for Report had been the subject of reports from the Committee.
4. If we had been asked to comment on the new clause
before it was inserted in the bill, we should have recommended
that the regulations to be made under it should be subject to
affirmative procedure for the reasons which were advanced during
the debate. We recognise that successive Governments have taken
the view that it is not practicable to lay down precise criteria
for determining the choice between the various Parliamentary statutory
instrument procedures. There is no finite rule for determining
the level of Parliamentary scrutiny of subordinate legislation.
Over the eight sessions of the Committee's existence we have,
however, consistently taken the view that the more important delegated
powers should be made subject to the affirmative resolution procedure.
In our view this power comes into this category. The Government
have now tabled an amendment for Third Reading to provide for
the affirmative procedure. We welcome this.
5. In the light of the human rights implications
of this power there would be an additional benefit in making it
subject to the affirmative procedure in that the Minister will
be obliged to state his or her view that orders made under the
powers are compatible with the Convention rights.
1 24th, 26th, 27th, 31st, 32nd and 33rd reports. Back
2 The new Clause was amendment 196 on the marshalled list for Report
3 House of Lords Hansard, 16 November 2000, col. 411. Back
4 House of Lords Hansard, 16 November 2000, col. 420. Back
5 See the evidence submitted by the then Government for the first
ever report of this Committee, 1st report, session 1992-93, HL
Paper 57, page 15. Back
6 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