Select Committee on Delegated Powers and Deregulation Thirty-First Report


3rd September 1998

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.    This Bill, which is being considered by Parliament during a two-day recall following the recent terrorist attack in Omagh, Northern Ireland, makes provision about procedure and forfeiture in relation to offences concerning proscribed organisations, and about conspiracy to commit offences outside the United Kingdom.

  2.    It contains four delegated legislative powers, all of which are subject to affirmative resolution procedure.

Clauses 1 and 2

  3.    Clause 1 inserts two new sections, relating to evidence and inferences, into the Prevention of Terrorism (Temporary Provisions) Act 1989. The inserted subsection 2B(2) enables the Secretary of State to specify by order an organisation which is not specified under section 3(8) of the Northern Ireland (Sentences) Act 1998, provided that he believes that the organisation to be specified is concerned in terrorism connected with the affairs of Northern Ireland, or in promoting or encouraging it, and has not established or is not maintaining a complete and unequivocal ceasefire.

  4.    Clause 2 inserts similar provisions, including the order-making power, into the Northern Ireland (Emergency Provisions) Act 1996.

  5.    The Northern Ireland (Sentences) Bill (subsection (8) of clause 3), which this Committee reported on in July,[1] contained a similar power providing for terrorist organisations to be specified by order of the Secretary of State. The Northern Ireland Office's memorandum on the earlier Bill explained that the reason why the specification of terrorist organisations had been left to delegated legislation was because any assessment of whether the conditions in subsection (8) applied would have to be made when the Bill came into force, and be kept under regular review. As is the case with the present Bill, orders under the Northern Ireland (Sentences) Bill were subject to affirmative procedure, which the Committee considered appropriate, as it does in the present instance.

Clauses 5 and 6

  6.    Clause 5 inserts a new section, relating to conspiracy to commit offences outside the United Kingdom, into the Criminal Law Act 1977. A further insertion (to become subsection 4(5) of that Act) provides that no proceedings for an offence triable by virtue of the new section may be instituted except by or with the consent of the Attorney General. The clause includes a power for the Secretary of State by order subject to affirmative resolution to provide that the new subsection (5) shall not apply, or shall not apply to any case of a description specified in the order.

  7.    Clause 6 inserts similar provisions, including the order-making power, into the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983.

  8.    The powers in clauses 5 and 6 are wide-ranging. The need for the Attorney General's consent is an important protection for potential defendants against misuse of the power. The Home Secretary emphasised this point during yesterday's second reading debate in the House of Commons, in the following words:

  ... fears [about clauses 5 and 6 of the Bill] ... can be allayed by reference not only to what is in the Bill but by the important fact that the Attorney-General will have the duty personally to examine every potential prosecution and, if required, he will be able to take the public interest into account.[2]

  9.    There are many legislative precedents for criminal prosecutions not to be brought without the Attorney General's consent. But there is no prior legislation which we can find where, once this safeguard has been introduced, the Secretary of State is then entitled to dispense with it by secondary legislation. We do not know, in the absence of the explanatory memorandum which in less pressing circumstances would have been provided by the Government on the delegated powers in the Bill, why the power is sought. It may be that the Minister will be able to give cogent reasons which override our present misgivings on this issue. But we think it right to draw these misgivings to the attention of the House.

  10.    Clearly, if the power is granted, the affirmative resolution procedure provided for is both necessary and appropriate.


  11.    There is nothing else in the Bill which the Committee wishes to draw to the attention of the House.[3]

1   25th Report, ordered to be printed 1 July 1998, HL Paper 126. Back

2   House of Commons Hansard, 2 September 1998, col. 738. Back

3   The members of the Select Committee are -
     L. Alexander of Weedon (Chairman)
     L. Ampthill
     L. Archer of Sandwell
     L. Dahrendorf
     L. Dean of Harptree
     L. Mayhew of Twysden
     L. Merlyn-Rees
     B. Perry of Southwark 

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