SCRUTINISING THE EXECUTIVE - THE DELEGATED POWERS AND DEREGULATION COMMITTEE

Role of the House of Lords
An important function of the House of Lords is to keep a watchful eye on the activities of the Executive (government) to ensure that it does not exceed or abuse its powers or take powers it should not have i.e. that its powers are appropriate.

Delegated Powers
For practical purposes and in order not to overload an already busy legislature, powers are delegated to government by Parliament in primary legislation, i.e. it is given authority to make rules having the force of law without referring back to Parliament for time consuming primary legislation. This is done by secondary legislation (or delegated legislation) through Statutory Instruments (SIs), Orders and Regulations. Procedures exist for examining these, but they come into play after the parent act or primary legislation has been through Parliament e.g. SIs uprating certain annual grants and benefits or disentitling certain categories of people to social security benefit where the basic rules have been agreed but the rates or amounts need to be altered annually.

The Delegated Powers Scrutiny Committee
The House of Lords has established procedures whereby all bills are examined before they begin their passage through the House. The Delegated Powers Scrutiny Committee was established in 1992. (The Commons has no such committee). Its chief concern is with the extent of legislative powers proposed to be delegated by Parliament to government ministers. The Committee was formed as part of a move to increase control of the Executive while at the same time saving time on the floor of the House.

Before the Committee was set up, Bills with contentious delegated powers took up large amounts of time on the floor of the House e.g. discussion on the Education (Student Loans) Bill 1990 was almost wholly concerned with the extent of delegated powers. Now, there is an informal understanding that when the Committee has approved provisions in a bill for delegated powers, the form of those powers should not normally be the subject of debate during the bill’s subsequent passage.

Remit and Role of the Committee
It is required “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”.

The Committee’s role is to advise the House of Lords; it is for the House to decide whether or not to act on the Committee’s recommendations. The Committee itself has no power to amend bills, although amendments are frequently tabled in response to its recommendations.

It was given the additional role of scrutinising deregulation proposals under the Deregulation and Contracting Out Act 1994 (May 1994). The House of Commons Deregulation Committee has similar functions with regard to deregulation proposals. The two Committees operate independently but have co-operated closely on deregulation matters.

Members and Working Methods
The Committee has eight members. It takes evidence and meets regularly when Parliament is sitting, according to the legislative workload. As most of its meetings are deliberative, it usually meets in private. Oral evidence is heard in public, like other parliamentary select committees. The Committee issues separate reports on draft deregulation orders and on bills.

The Scrutiny Process
The Committee takes evidence in writing on each public bill from the relevant government department. Sometimes it also hears oral evidence. The written evidence -

• identifies provisions for delegated legislation;
  
• describes their purpose;
  
• explains why the matter has been left to delegated legislation;
  
• explains the degree of parliamentary control provided for the exercise of each power (affirmative, negative, or none at all) and why.

The Committee does not report on supply bills, as the Lords do not amend these. It does not consider consolidation bills because they do not seek to introduce new law.

In examining a bill the Committee:

• considers whether the power to make secondary legislation is appropriate. This includes expressing a view on whether the power is so important that it should only be one granted by primary legislation;
  
• always pays special attention to Henry VIII powers (powers to change laws without parliamentary action). These provisions enable primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny;
  
• considers what form of parliamentary control is appropriate and, in particular, whether the proposed power calls for the affirmative rather than the negative resolution procedure; (i.e. whether a debate should be guaranteed in either or both Houses);
  
• considers whether the legislation should provide for consultation in draft form before the regulation is laid before Parliament, and whether its operation should be governed by a Code of Conduct.

Effects of the Scrutiny
An example of how the scrutiny process works can be seen in the 1997 Education (Student Loans) Bill. This was introduced, to amend the 1990 Act, essentially to enable the debt to be privatised. Clause 2 extended the power in the 1990 Act to make regulations. This had been the subject of extended discussion in 1990 which eventually resulted in the first regulations i.e. those setting up the scheme being subject to affirmative resolution (i.e. subject to more parliamentary scrutiny). This was important, otherwise it would have enabled interest rates, repayment arrangements etc. to be set without any control.

In scrutinising the 1997 Bill, the Committee was concerned about the effect of ‘inflation proofing’ of the new loans and the fact that there was ‘a not insignificant measure of discretion’ left to the Secretary of State. It therefore recommended that the House consider whether the first time the extended power was used, it should be subject to the affirmative procedure.

Deregulation Proposals
Part 1 of the Deregulation and Contracting Out Act 1994 created a special kind of delegated legislation, usually referred to as “deregulation orders”. Under that Act, deregulation orders may be made by any Minister to amend or repeal any enactment of primary legislation with a view to removing or reducing any administrative or bureaucratic burden, if the Minister is of the opinion that this can be done without removing any necessary protection. The 1994 Act provides for a two-stage process of parliamentary scrutiny:

1. The proposal, together with explanatory material is laid before Parliament as a draft order. The Committee and its Commons equivalent have 60 days in which to report.
   
2. The government lays a draft order before Parliament, either in its original form or amended to take account of the two Committees’ views, for approval by resolution of each House. This can only be done in the Lords after the Committee has made a second report on it.

The Examining Process
The Committee considers whether:

• It is intra vires (i.e. is Government entitled to do what is proposed?);
  
• It removes a burden;
  
• It removes any “necessary protection”; (the 1994 Act requires that the amendment or repeal of existing primary legislation must be done “without removing any necessary protection”).
  
• Consultation (also required by the 1994 Act) has been adequate.

Effects of the Examination
The proposal for the Draft Deregulation (Sunday Dancing) Order 1995 is one example which shows the effect of the Scrutiny Committee’s work:

The Sunday Observance Act 1780 prohibits charging for public dances held on Sundays. The deregulation proposal would have exempted dances from the 1780 Act, thus allowing premises to be licensed for Sunday dancing. It would also have extended the permitted hours for the sale of alcohol at dances on Sunday nights. The Committee took oral and written evidence from a wide range of witnesses. It rejected the proposal, on two grounds: that the subject matter was not suitable for the fast-track procedure under the 1994 Act; and that consultation had been inadequate.

Further Information
The Delegated Powers and Deregulation Committee

Telephone: 0171-219 3233      Fax: 0171-219 2571

DECEMBER 1997