Select Committee on Delegated Powers and Deregulation Ninth Report


17 December 1997

  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.    Part I of this bill is concerned with the teaching profession, Part II with financial provision for higher and further education and Part III creates a new right to time off from work for study or training. The bill creates many delegated powers and extends existing powers. With the exception of the affirmative provision in clause 16(5) and the commencement power, all powers are subject to negative procedure.

  2.    The Department's helpful memorandum (printed in the Annex to this report) explains the powers and specifies the relevant Parliamentary control. The Committee can, therefore, confine its comments to the Henry VIII clauses and other aspects of the bill which have caused us concern.

Henry VIII clauses

  3.    Clause 6(2) allows an order establishing the General Teaching Council for Wales to modify the English provisions in clause 1 and Schedule 1 to make them appropriate for Wales. Negative procedure seems right for this modest power.

  4.    Clause 16 establishes new arrangements for giving financial support to students. Whether a student or a course qualifies for support and, if so, whether that support will be by way of a grant or a loan and the amount will all be determined by regulations made by the Secretary of State. The regulations will include provision requiring repayment and imposing interest (at rates to be prescribed from time to time by regulation). They may also impose duties on employers to collect sums due under the regulations and transmit them to the Secretary of State (subsection (4)(9)) and for this purpose the regulations may apply or extend with or without modification any of the provisions of the Income Tax Acts or of regulations about Pay As You Earn (PAYE) made under the Income and Corporation Taxes Act 1988.

  5.    The provisions of clause 16 establish the framework but everything of importance will be in the regulations. These will be subject to negative procedure unless subsection (5) applies. We were at first puzzled by a provision which appears to be a brake on generosity - it applies affirmative procedure when regulations increase the maximum grant in respect of fees by more than the rate of inflation - but we understand that fees are likely to be linked to the maximum grant and an increase in that will lead to an increase in fees so increasing the burden on those who have no grant or less than the maximum. Subsection (5) is thus intended to protect students and their families.

  6.    We invite the House to consider whether the subject matter of the regulations under section 16 is so important that the bill should be amended to require affirmative procedure for the first regulations, but to allow Ministers the option of using either the affirmative or the negative resolution procedure for subsequent regulations, thereby enabling the negative procedure to be used for amending regulations unless they included new matter of significance. If this approach were to be adopted, subsection (5) would not be needed.

  7.    Provision corresponding to clause 16 is made for Scotland in clause 21. Although there are differences of substance between the two systems, our comments on the case for affirmative procedure apply here also.

Clause 18

  8.    The Committee looked carefully at clause 18, which gives the Secretary of State further power to impose conditions as to fees at further or higher education institutions. The Committee is aware that this clause is controversial, and considered the possibility that the imposition of conditions might be regarded as the exercise of secondary power. But bearing in mind that the power is an extension of those granted in the Further and Higher Education Act 1992, the Committee does not think it right to comment. It is for the House to consider this issue on its merits when debating the primary legislation.


  9.    The Committee wishes to draw the attention of the House to clause 16 and the corresponding Scottish provisions. There is nothing else in the bill to which we draw the House's attention.

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