Memorandum from the House of Lords Select
Committee on Delegated Powers and Regulatory Reform (DDB 105)
1. Lord Carter, Chairman of the Joint Committee
considering the draft Disability Discrimination Bill, wrote to
Lord Dahrendorf, inviting this Committee to consider the delegated
powers in the draft Disability Discrimination Bill. We welcome
the opportunity to contribute to the pre-legislative scrutiny
of this bill. This Memorandum sets out some general points we
would like to make at this early stage of the Parliamentary scrutiny
procedure.
2. We are grateful for the assistance of
a "delegated powers memorandum" which was drafted for
the Joint Committee by the Department for Work and Pensions ("the
Department").
3. There are a large number of delegated
powers in the draft bill. Although, at this stage, we would like
to make observations in respect of four of them only, we wish
to make clear that this should not be taken as an indication that,
were the other delegated powers to remain in the bill, we would
find them appropriate in every case.
4. The four powers on which we offer comments
are contained in new sections 21D(7), 21F(5) and 21H(3) (which
we consider as a group) and clause 7.
5. New Sections 21D(7), 21F(5) and 21H(3)
all include Henry VIII powers to omit or amend conditions and
other provisions relevant to whether treatment or an outcome is
justified. The powers are more extensive than, for example, the
existing section 20(8) (referred to in the memorandum) and were
these powers to remain in the bill subject to the negative procedure
only, the Committee might very well be inclined to recommend that
they should be subject to affirmative procedure.
6. Clause 7 allows certain provisions of
the Disability Discrimination Act 1995 to be amended, subject
to the affirmative procedure, in any way the Secretary of State
considers appropriate. This provision is addressed at paragraphs
63 to 71 of the Department's memorandum. The reason given for
taking the power appears largely to be (paragraph 70) that the
existing provisions are complex and that the Disability Rights
Commission (or others) may come forward with a suggestion for
improvement. Were this power to remain in the bill, it is likely
that the Committee would find this reasoning unpersuasive and
would question whether the delegation of the power to the Secretary
of State is inappropriately wide.
7. We reserve the right to comment again
on the bill when it is introduced into Parliament and at that
stage we will, in accordance with our terms of reference, report
to the House of Lords on the appropriateness of the delegated
powers contained in the bill and of the level of Parliamentary
scrutiny applied to them.
March 2004
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