14 JUNE 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.
1. The Department's Memorandum states that the main
purpose of the bill is to honour commitments to legislate in the
1998 Transport White Paper and to provide for a Public Private
Partnership for National Air Services. Part I deals with air traffic
services, Part II with local transport, Part III with charging
for road use and imposing a workplace parking levy, Part IV with
railways and Part V with various miscellaneous matters including
the important power to impound illegally operated heavy goods
vehicles which are identified at roadside checks.
2. With a bill of over 300 pages and a varied content
of this kind it is not surprising to find many delegated powers,
but they are not so numerous as those in some recent bills. The
Memorandum, which is printed in Annex 1 to this report, gives
a full account of those powers and the Committee has therefore
found it necessary to comment only on those powers which raise
issues of interest to the House. A number of the powers (listed
below) are subject to affirmative procedure and a few are not
subject to Parliamentary control, and these are discussed in this
report. All other powers are subject to negative procedure.
3. There are affirmative powers in clauses 48, 170,
230 and 250, in paragraphs 9, 12 and 13 of Schedule 12 and in
paragraphs 8 and 14 of Schedule 14.
4. Clause 48(2) provides that the Secretary
of State may designate by order a company to which property, rights
or liabilities of the CAA are to be transferred as the company
which will be the subject of a partial sale to the private sector.
Because of the importance of the decision, the designation order
is made subject to affirmative procedure (by clause 95(6)). Clause
48(10) is a Henry VIII power allowing the amendment or repeal
of the clause. That order too is made subject to affirmative procedure.
Because an order under the clause could be a hybrid instrument,
clause 95(12) disapplies hybrid instrument procedure in the House
of Lords. Whatever the general case for such procedure,
in the Committee's view it is clearly inappropriate here.
5. The power in clause 48(10) is the only delegated
power in the bill which was criticised during the Second Reading
debate (Hansard 5 June col 936). The clause provides for
the Crown to hold a "golden share" in the company and
to maintain a shareholding of at least 25 per cent and it was
questioned why there should be power to remove these safeguards
by statutory instrument. The Memorandum explains that the clause
is modelled on section 18 of the Commonwealth Corporation Act
1999. The Committee notes that the empowering provisions will
be contained in the primary legislation and that the decision
to release the golden share will be a judgement within the criteria
provided. The Committee sees the power as not inappropriate and
sees affirmative procedure as providing appropriate control over
Powers subject to affirmative resolution in the
House of Commons
6. There are six powers in the Bill which are subject
to affirmative resolution in the House of Commons. These are in
Clause 170, Schedule 12, paragraphs 9(1) and 13(2) and (5) and
Schedule 14, paragraphs 8 and 14.
7. Clause 170 in effect defines "workplace
parking place" for the purposes of Part III of the bill which
provides for the imposing of charges in respect of the provision
of such parking places. Subsection (5) allows the making of regulations
amending the clause for the purpose of adding, removing or varying
cases where, for the purposes of Part III, workplace parking places
are provided. Regulations for England are to be made by the Secretary
of State, for Wales by the National Assembly and regulations applying
to both England and Wales are to be made by the Secretary of State
and the National Assembly acting jointly. Clause 185(4) provides
that regulations under clause 170(5) shall not be made by the
Secretary of State unless they have been approved in draft by
the House of Commons.
8. There are three powers in Schedule 12 which
are also subject to clause 170(5) and so regulations under them
cannot be made by the Secretary of State unless a draft has been
approved by the House of Commons. Schedule 12 is concerned with
the financial aspects of road user charging and workplace parking
levy. Regulations under paragraph 9(1) are concerned with the
application of a non-metropolitan local traffic authority's share
of the net proceeds of a charging or licensing scheme.
9. The charges described in paragraphs 7 and 8 above
relate essentially to local taxation. The House of Commons Ways
and Means resolution for this Bill of 20 December 1999 specifically
included the making of road user charging schemes and workplace
parking levy licensing schemes.
10. We do not find the boundary line between where
local charges are or are not money resolutions an easy one to
draw, and for ourselves have some uncertainty about the appropriateness
of the Commons-only procedure for these order-making powers.
11. Paragraph 13 is concerned with the application
of the proceeds of a trunk road charging scheme by the Secretary
of State and the Assembly. Sub-paragraph (1) lists two types of
scheme, that at paragraph (1)(b) is a scheme made under clause
155(2)(b) and coming into force in the first ten years of the
life of Schedule 12. Paragraph 13(2) is a Henry VIII power to
substitute a larger number than 10 in paragraph 13(1). Paragraph
13(5) covers schemes which are outside paragraph 13(1) and requires
their proceeds to be applied only in accordance with regulations.
Regulations under paragraphs 9(1) or 13(2) or (5) are made by
the Secretary of State or the Welsh Assembly. The Committee has
no concerns about these two powers, nor those in Schedule 14,
paragraphs 8 and 14.
Powers not subject to Parliamentary control
12. Clause 87 allows the Secretary of State,
acting "in any time of actual or imminent hostilities or
of severe international tension or of great national emergency",
to make an order for the possession of any aerodrome and the things
on it. The order may create offences (maximum penalties are set
out in subsection (6) and are a fine not exceeding the statutory
maximum on summary conviction or a fine or imprisonment not exceeding
two years on indictment). The Memorandum states that this clause
"broadly replaces section 63 of the Civil Aviation Act 1982".
Clause 86 also deals with control of aerodromes in time of hostilities
but the powers under it are limited to giving directions. In view
of the need for instant action in times of national emergency,
the absence of Parliamentary control is understandable and the
Committee considers it appropriate, particularly as there is provision
for compensation (subsections (7) and (8)).
13. Clause 207 confers on the Strategic Rail
Authority power to make bye-laws regulating the matters set out
in the clause. Schedule 20 contains supplementary provisions.
Bye-laws do not come into force unless confirmed by the Secretary
of State (paragraph 3) and confirmation involves consultation
(paragraph 4) and the Secretary of State may confirm with modification
or refuse to confirm any bye-laws (paragraph 5(11)). Paragraph
2 provides the maximum penalty for an offence under the bye-laws
(a fine not exceeding level 3 on summary conviction). Bye-laws
of this kind have a long history and the Committee considers it
appropriate that there should be no Parliamentary control.
14. Clause 228 provides for the winding down
and abolition of the British Railways Board. Subsection (3) allows
the Secretary of State by order to reduce the membership of the
Board and subsection (4) allows him by order to dissolve the Board
(this power is extended by subsection (7)). Both orders are statutory
instruments but the Committee considers that the absence of Parliamentary
control is appropriate for what are, in effect, transitional powers.
15. Clauses 248 and 249 contain commencement
and transitional powers. Again the Committee considers the absence
of Parliamentary control appropriate.
16. Schedule 26 contains provisions about
the tax consequences of transfers under Part IV (railways). Paragraph
13 is concerned with "continuity in relation to capital allowances
etc. where trade transferred" and sub-paragraph (3) allows
the Secretary of State to make provision by order sorting out
the corporation tax problems of particular transfers. Sub-paragraph
(5) allows this to be done in various ways. Sub-paragraph (6)
requires the Treasury's consent and sub-paragraph (7) requires
the transferee's consent for any charges after the transfer. As
the power is for transitional purposes and deals with particular
transactions, the Committee does not see a need for Parliamentary
17. There are a number of provisions in the bill
which give the Secretary of State power to issue directions. While
these do not amount to legislative powers they may be as significant
as some of the legislative powers. The Committee has mentioned
one earlier and another example is clause 35 (directions in interests
of national security etc.) where subsection (8) requires the Secretary
of State to lay before Parliament a copy of any direction unless
he thinks that disclosure would damage national interest or the
commercial interest of any person.
18. The Committee sees no need to draw the attention
of the House to any of these provisions.
19. Some of the powers subject to negative procedure
are significant, for example the power to provide for the detention
and sale of aircraft to pay charges (clause 76) but the Committee
does not see any of them as inappropriate delegation or as requiring
affirmative procedure. The Committee has thought it necessary
to comment on only a few of these powers.
20. Clause 90(2) is a Henry VIII power allowing
the amendment of the definition in the clause of "air traffic
services". Clause 95(8) requires the CAA to be consulted
about any amendment. There is a power in clause 230 to amend the
definition of "services relating to railways" but that
is subject to affirmative procedure. Clearly the appropriate form
of Parliamentary control depends on the significance of the power
and the Committee sees negative procedure as appropriate for the
power in clause 90(1).
21. Clause 116(10) is a Henry VIII power but
it is limited to varying a time limit.
22. Clause 120 provides exceptions from clause
119 (tendering for quality contracts). Subsections (2) to (5)
allow regulations to create new exceptions and to make other provisions
with respect to exceptions. These are not Henry VIII powers and
negative procedure seems appropriate however significant the powers
may be. These comments apply also to the associated powers in
clauses 121(6), 122 and 123.
23. Clause 135 allows the amendment of clauses
133 and 134 (mandatory travel concessions outside Greater London).
While this is a Henry VIII power it is limited to securing that
clause 131 will produce the results set out in the clause and
the Committee sees this as justifying negative procedure.
24. Clause 156(3) allows the Secretary of
State and the Welsh Assembly to make regulations "about orders
making, varying or revoking charging schemes" in respect
of the use or keeping of motor vehicles on roads. Regulations
can deal with such matters as specifying the form of orders, consultation
about proposals and the publication of notices stating the effect
of orders. The Committee has no comment to make on the power to
make regulations. Charging scheme orders are made by local authorities
or, in the case of trunk roads, by the Secretary of State or the
Welsh Assembly. Local authority orders are subject to confirmation
by the Secretary of State or the Welsh Assembly under clause 157
and there are further provisions about orders in clauses 158 to
160. Orders are not statutory instruments. The Committee considers
that appropriate for these orders, the majority of which will
be made by local authorities.
Government amendments for Committee stage
25. The Government has provided a memorandum
on the amendments it has tabled for Committee stage which contain
delegated powers. The Committee thought that it would be for the
convenience of the House to comment on these now, subject to any
further comments if additional Government amendments are tabled
at a later stage. The amendments we have considered are as follows:
new clause after clause 96;
new clause after clause 108;
new clause 132;
new clause after clause 234.
26. The Committee considers that none of these amendments
raise matters which it wishes to draw to the attention of the
27. The Committee has commented on the uncertainty
regarding the extension of Commons financial privilege to statutory
instruments relating to local taxation. Aside from these comments,
there is nothing in the bill which the Committee wishes to draw
to the attention of the House.
1 We invited the House as a whole to consider this
procedure in our Special Report for last session (Special report,
session 1998-99, HL Paper 112). Back
2 In the present session we have noted de-hybridising provisions
in the Local Government Bill [HL] (2nd Report, HL Paper 16), and
the Representation of the People Bill (4th Report, HL Paper 29).
In our report on the Child Support, Pensions and Social Security
Bill (13th Report, HL Paper 59), by contrast, we noted that an
order-making power under that bill could result in a hybrid instrument
without any accompanying provision for it to be excluded from
the procedure. In our view this strengthened the case for the
Procedure Committee considering this procedure. Back
3 Statutory Instrument Practice states that parliamentary
control may be exercisable by the House of Commons only "if
the instrument relates to financial matters". (2nd edition,
Cabinet Office (Management and Personnel Office) 1987, paragraph
1.24). Erskine May gives clear examples of how the Commons
have long included bills which deal with local revenues or charges
as matters to which their privilege extends (22nd edition, London
1997, 797). But local taxation is generally exempt from the rules
of financial procedure concerning charges upon the people (Erskine
May, 733-734, 781). Back
4 Printed with this report. 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