9 FEBRUARY 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.
NORTHERN IRELAND BILL
1. This bill was introduced in the House of Commons
on 4 February and had its first reading in the House of Lords
yesterday, with a view to the bill finishing its parliamentary
passage by the end of this week. Despite the special circumstances
under which the bill has been introduced, and its expected speedy
passage through Parliament, the Committee considers it important
that the delegated powers contained in this - and any other -
urgent legislation should be scrutinised no less thoroughly than
bills which receive a more leisurely passage. We are therefore
particularly grateful to the Northern Ireland Office for producing,
at speed, its excellent memorandum on the bill. This is printed
with this report. As has been the case with previous Northern
Ireland Bills, we are making our report available to the House
initially in typescript, as the second reading debate will take
2. The bill contains a number of "transitional"
powers needed to provide for the transition from devolved government
to direct rule and from direct rule to devolved government. There
are powers in clauses 2(2), 5(1) and (2), 6 and 9 (commencement)
and paragraphs 1(1) and (4) and 12(4)(b) of the Schedule. These
powers are subject to affirmative procedure (with "urgency"
arrangements for all but the power in paragraph 1(4) of the Schedule)
except for the commencement power and the power in paragraph 12(4)(b
of the Schedule which is subject to negative procedure. The department's
memorandum gives a fuller account of the powers.
3. Clause 1 suspends (from a date fixed by a
commencement order) devolved government. Clause 2(2) allows an
order made by the Secretary of State to restore devolved government.
Before a restoration order can be made there must have been a
review under the Belfast Agreement (subsection (1)). Clause 3
sets out the effect of restoration.
4. As paragraph 6 of the memorandum states in
explanation of the power in Clause 2, "it is right that Parliament
should be given the opportunity to approve an order restoring
devolved government, but equally right that the Secretary of State
should be able to act in advance of parliamentary approval if
it appears necessary to do so, for example during a parliamentary
recess or if the Secretary of State judges a prompt resumption
necessary for political reasons. Even so parliamentary approval
would still have to be obtained if the order were not to cease
to have effect." This power follows a well-established formula
in emergency legislation of this kind, and the Committee is satisfied
that it represents both appropriate delegation and that an appropriate
level of parliamentary control is provided.
5. The power in clause 2(2) to make an order
carries with it the power to revoke such an order. Clause 4 provides
that revocation revives clause 1 and so suspends devolved government.
6. Subsection (1) provides that if, while clause
1 is in force, arrangement between the governments of the United
Kingdom and Ireland require functions to be transferred to a Northern
Ireland department, the Secretary of State must by order
transfer those functions to the department.
7. Subsection (2) provides that if, when a restoration
order is made, such arrangements require functions of a Northern
Ireland department to be transferred to an implementation body,
the Secretary of State must make the transfer by order.
8. This confers power by order to make modifications
of enactments which appear to the Secretary of State to be necessary
or expedient in consequence of any provision made by, or under,
the bill. The Committee agrees with the Department's analysis
that "the power is a wide one; but it is necessary to make
provision for changes that may be needed to all forms of legislation
in consequence of suspension or restoration."
9. This clause makes supplementary provisions
in relation to orders made by the Secretary of State under the
bill. Subsection (2) allows orders to include "consequential,
supplemental or transitional" provisions. Subsection (3)
applies negative procedure to the power under paragraph 12(4)(b)
of the Schedule. Subsection (4) applies affirmative procedure
to other orders (except commencement orders) made by the Secretary
of State. Subsections (5) to (7) allow orders under clauses 2,
5 and 6 to be made and then presented to Parliament for approval
in cases of urgency.
10. Paragraph 1 allows legislation for Northern
Ireland which would otherwise be made by Act of the Assembly to
be made by Order in Council when clause 1 is in force. Paragraph
2 applies affirmative procedure (with an "urgency" adaptation).
Paragraph 1(3) limits the power to legislate by Order in Council
to the first six months of the suspension of delegated government.
Paragraph 1(4) allows that period to be extended (by not more
than 6 months at a time) by order made by the Secretary of State
(clause 7 applies affirmative procedure but not the urgency procedure).
11. The Department's memorandum explains that
"the view has been taken that the power to legislate by Order
in Council during the suspension period, rather than by Bill at
Westminster, is the aspect of a suspension arrangement which should
receive periodic scrutiny by Parliament."
The Committee agrees with this view, and notes with approval that
renewal is to be more frequent than under the 1974 Act.
12. Paragraph 12 requires certain accounts and
reports to be laid before the House of Commons. These are accounts
and reports which would be laid before the Assembly if it had
not been suspended and "such accounts, reports and other
documents as ... are prescribed by order of the Secretary of State"
(paragraph 12(4)(b). Negative procedure is applied by paragraph
13. In spite of the importance of the subject
matter, there is nothing in the bill which the Committee wishes
to draw to the attention of the House.
REPRESENTATION OF THE PEOPLE BILL
14. This bill gives effect to the recommendations
of the Working Party on Electoral Procedures which reported last
year. The principal recommendation was to introduce "rolling"
electoral registration, under which changes to the register may
be made at any time, to replace the present system of annual registers
based on residence on a single annual qualifying date.
15. The department's memorandum identifies the
delegated powers and gives a justification for each. Most of the
powers are extensions to the regulation making powers in the Representation
of the People Act 1983 and that Act provides that regulations
made under it do not come into force unless and until approved
by resolution of each House.
16. This report lists the new powers but discusses
only those which raise issues which the House may wish to consider.
17. There are delegated powers in clauses 4 (new
section 7(3)), 5 (new section 7A(3)), 9(2) (new paragraphs 10,
10A, 10B and 11 substituted in or added to Schedule 2 to the 1983
Act) and (3), 10(1), 11(1), 13(2) and 16(3) and (4) (commencement)
and in Schedules 1 (new sections 9(2), 10(4) and (7), 10A(1) and
(5), 13(1), (2), (3) and (6) and 13A(1) and (2) of the 1983 Act
and in paragraphs 15, 20 and 23 of the Schedule), 2(new sections
2(3) and 3(1), (5), (6) and (7)), 4 (paragraphs 3(1), (2) and
(7), 4(1), (2), (3) and (4), 6(7) and 18)) and 5 (paragraphs 4,
9(3) and (4) and 10).
18. This clause allows the Secretary of State
to make an order establishing a scheme in relation to particular
local government elections held in a particular local authority
area. These are "pilot schemes" to see if improvements
can be achieved and the clause provides the procedure which begins
with proposals from a local authority and ends with a report from
the local authority assessing the success or failure of the scheme.
19. An order under the clause is not subject
to Parliamentary control and is not made as a statutory instrument.
(Publication in the area concerned is dealt with in subsection
(4) of the clause.) The memorandum argues that this informality
is appropriate for an order affecting one election in a particular
area. The Committee finds that argument persuasive.
20. This clause allows the Secretary of State
to make permanent provision when he sees a pilot scheme as identifying
a better way of conducting elections. An order under subsection
(1) is subject to affirmative procedure (subsection (4)). An order
may make provision with respect to -
- parliamentary elections;
- elections to -
- the European Parliament
- the Scottish Assembly
- the National Assembly for Wales
- the Northern Ireland Assembly; and
- local elections in England, Wales or Northern
Ireland. (See subsection (7).)
21. An order must relate to the whole of the
UK unless it is concerned with elections which are held only in
a particular part of the UK, in which case the order must relate
to the whole of that part. There is an exception for local elections
where the order may exclude any area specified in the order (subsection
22. An order which applied to, say, England and
Wales, with the exception of named areas would be a hybrid instrument
but subsection (6) excludes the jurisdiction of the Hybrid Instruments
Committee of this House. This is the third time in recent months
that the Committee has considered a provision to exempt an instrument
from the hybrid instruments procedure.
The Committee discussed the general issue of the need to retain
a special procedure for hybrid instruments in its Special Report
(see paragraphs 49 to 52) and suggested that there was an issue
for the House to consider as to whether there was still a need
to make special provision for considering affirmative instruments
which affect private or local interests. Whatever view the House
takes on the general issue, in the Committee's view this seems
a proper case for excluding the procedure.
23. The Committee noted that the Secretary of
State has to lay before Parliament together with the draft order
a copy of the report (or reports) he has received assessing the
success of the corresponding pilot scheme (or schemes) - see subsection
24. The scope of an order is, in effect, defined
by clause 10(2). Thus an order could not affect eligibility to
vote but could, in theory at least, affect the secrecy of the
25. The explanatory notes describe Clause
11 as being "concerned with the rolling out of innovations
that have been successfully piloted."
The implication of paragraphs 15-17 of the Home Office's explanatory
memorandum, printed with this report, would appear to be that
the power will only be used for elections in the category which
has been tested in the pilot and is covered by the report. We
would find such a power acceptable. But the bill itself provides
that the power extends very widely indeed, for example, for parliamentary
elections when the pilot scheme related to local government elections.
Such a power would be unacceptable to this Committee.
26. The issue of where, when and how people
vote is a matter of great importance. The House may wish to consider
amending the bill to limit the power so that it extends only to
elections in the category in which the pilot was conducted and
covered by the report, namely local government. The affirmative
procedure provided would be the appropriate level of parliamentary
control for this more limited power.
27. We also note that the Political Parties,
Elections and Referendums Bill at present before the House of
Commons establishes an Electoral Commission and provides (in clause
6) for the Commission to be consulted on changes to electoral
law. The requirement to consult the Commission does not include
consultation about an order under clause 11 of this bill and we
urge that it should so extend.
28. The Committee has suggested that the bill
should be amended to limit the significant power in clause 11
to change the way elections are conducted. There is nothing else
in the bill which the Committee wishes to draw to the attention
of the House.
TRUSTEE BILL [HL]
29. This bill implements recommendations of the
Law Commission and the Scottish Law Commission. In our March 1997
report on the proposal for the draft Deregulation (Trustee Investments)
Order 1997 we observed that in the 26 years since the Trustee
Investments Act 1961 was enacted there had been 21 Additional
Powers Orders made under it, extending the range of authorised
trustee investments. We looked forward to what we described as
the "long-overdue reform of trustee investment law."
We therefore welcome the present bill.
30. The principal change will be the creation
of wider powers of investment. There are few delegated powers
in the bill and these are discussed in the Department's memorandum.
We comment on two of the powers.
31. This clause allows the Secretary of State
to make regulations providing "for the remuneration of trustees
of charitable trusts". The Explanatory Notes explain (paragraph
107) that the Law Commission concluded that there was a strong
case for including charitable trustees in clause 29 (remuneration
of certain trustees) but that further consultation was needed.
If consultation led to agreement that "charitable trustees
should be able to be paid in like manner to trustees generally",
it would require primary legislation to achieve that unless powers
were taken in the bill. Clause 30 gives these powers.
32. The difficulty with this argument is that
clause 29 is confined to trust corporations and trustees who act
for the trust in a professional capacity. Clause 30 is not so
limited. It "includes" power to remunerate persons in
certain categories but is also wide enough to allow regulations
to provide remuneration for lay trustees. This would be a very
radical new power.
33. The Law Commissions' report on the draft
notes that "although clause 30 does not constrain the power
of the Secretary of State as to the content of regulations made
in pursuance of the power, it is likely that any such regulations
(if made) would be in similar form to clause 29, with such modifications
as may be appropriate. For example, it is likely that the requirement
for consent in clause 29(2) would be modified so that only the
agreement of a majority of the trustees of a charity would be
required to the remuneration of one or more of their number."
34. The Committee can see no reason why trustees
should receive any payment for acting as trustees as distinct
from acting in a professional capacity for the charity. The memorandum
suggests the regulations will look very much like clause 29. The
House may wish to consider amending the bill to provide that the
power is limited to trust corporations and members of professions.
If the bill is amended in this way, the Committee considers that
the negative procedure provided is appropriate.
35. This is a Henry VIII power to make "such
amendments of any Act ... as appear to [the Minister] appropriate
in consequence of or in connection with Part II or III" of
the bill. The Explanatory Notes state (paragraph 128) that the
power is needed, in particular, in respect of local and private
legislation which contains provisions referring to the Trustee
Investments Act 1961, and there is a fuller explanation in paragraphs
5 to 11 of the memorandum. The power is limited to the area covered
by Parts I and II which deal with powers of investment and acquisition
of land. With this limitation the Committee sees negative procedure
(subsection (4)) as appropriate.
36. The Committee has suggested that the House
may wish to consider amending the bill to provide that regulations
under clause 30 will be concerned only with trust corporations
and members of professions. There is nothing else in the
bill which the Committee wishes to draw to the attention of the
DEAFBLIND PERSONS BILL [HL]
37. There is one power in this Private Member's
Bill. Clause 4 amends the Chronically Sick and Disabled Persons
Act 1970 to add a requirement to make provision for deafblind
link services for deafblind persons. "Deafblind link service"
is defined in clause 5 as the provision of "one-to-one support
workers of a description prescribed by regulations" to give
assistance to a deafblind person. Regulations are subject to negative
38. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
COPYRIGHT AND TRADE MARKS BILL [HL]
CHEQUES (SCOTLAND) BILL [HL]
39. These bills contain no delegated legislative
1 Department's memorandum, paragraph 12. Back
2 Department's memorandum, paragraph 19. Back
3 The other occasions were in connection with the Draft Freedom
of Information Bill (21st report, 1998-99) and the Local Government
Bill [HL] in the present session (2nd report, 1999-2000, HL Paper
4 HL Paper 112. Back
5 Paragraph 72 of the explanatory notes. Back
6 21st report 1996-97, HL Paper 70, paragraph 78. Although we had
reported favourably on this deregulation proposal before the general
election it has not been proceeded with. Back
7 Trustees' Powers and Duties (Law Com No 260, Scot Law Com
no 172). 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