THIRTY-THIRD
REPORT
28 October 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.
HEREDITARY
PEERAGE (ELECTION) BILL [HL]
1. This Bill, introduced by Lord
Pearson of Rannoch, contains one delegated power in addition to
the simple commencement power in clause 6(2).
2. Clause 1 abolishes the right
of hereditary peers to attend the House of Lords and clause 2
provides the machinery for hereditary peers to elect up to 50
of their number who will then be eligible to receive writs of
summons. Subsection (13) of the clause allows the Lord Chancellor
to make by order further provision in respect of the conduct of
elections under the clause. An order under this power is "subject
to approval by resolution of each House of Parliament". One
small technical point is that this is the form of affirmative
procedure which went out of use following the Second Report of
the Joint Committee on Delegated Legislation (printed 24 October
1973 - HL 204 HC 468). That Committee commented that the formula
had advantages but the alternative of laying in draft for approval
was to be preferred and the Committee "recommend avoidance
of [the formula adopted here] in future Acts of Parliament."
Recommendation
3. Apart from the technical point
made in the preceding paragraph there is nothing in this Bill
which the Committee wishes to draw to the attention of the House.
HUMAN
RIGHTS BILL [HL] - FURTHER OBSERVATIONS
Introduction
4. We reported on this Bill in our
6th report of this session.[1]
In that report we recommended three main changes to the Bill as
introduced in this House. Two changes related to rules made under
powers in clauses 2 and 7. Appropriate amendments have been made
and rules under those powers are now to be made by statutory instrument
and will be subject to negative procedure.
Remedial orders
5. The third proposal for change
related to remedial orders. The Bill gives ministers power to
make amendments to legislation which a court, either in the United
Kingdom or in Strasbourg, has found to be incompatible with a
Convention right. In our 6th report we recommended that the affirmative
procedure provided for these remedial orders should be amended
to give Parliament the opportunity to propose amendments to a
remedial order, and we commended the procedure which applies to
deregulation orders, in the following terms:
"This is a Henry VIII power
of the utmost importance, which the Committee wishes to draw to
the House's attention. The House may take the view that the "fast
track" procedure to remedy speedily laws which have been
held by the courts to be incompatible with the Convention is necessary.
The orders could, however, affect significant change in sensitive
and important areas of existing law. We have noted the Lord Chancellor's
statement to the House at second reading that the power could
only be used under strictly limited circumstances. Without strict
limitations, a secondary power of such potential width would be
unacceptable. In view of the significance of the Lord Chancellor's
statement we repeat his words here:
"... the power to make a remedial
order may be used only to remove an incompatibility or a possible
incompatibility between legislation and the convention. It may
therefore be used only to protect human rights, not to infringe
them. And the Bill also specifically provides that no person is
to be guilty of a criminal offence solely as a result of any retrospective
effect of a remedial order."[2]
The bill, quite rightly in the
Committee's view, requires the affirmative resolution procedure.
This procedure, however, does not allow the House to amend an
order. Given that the power has to be open-ended in order to meet
any need that could arise, and that it might be used to make extensive
changes to existing legislation, the House may wish to consider
whether there is a case for developing a new procedure to scrutinise
such orders modelled on that for the second stage parliamentary
scrutiny of deregulation orders. Such a procedure could allow
for a limited period in which the proposal to make a remedial
order could be considered by both Houses of Parliament, with the
opportunity that would give for amendments to be proposed."
6. The Government subsequently informed
us that it accepted the Committee's recommendations, and the Government
amendments were made at Committee Stage in the House of Commons.
We welcome the Government's reaction to our recommendations about
this Bill, which is of considerable constitutional importance.
7. In the new Schedule which is
to become Schedule 2 to the Bill (as amended in Committee in the
Commons) paragraph 3(1) provides that a draft of a remedial order
may not be laid under paragraph 2(a) unless Parliament has been
given the opportunity to consider a document setting out the proposed
order and the case for making an order in those terms. The result
is that a draft order may not be laid until the 60 day period
beginning with the laying of the document has expired. This was
the procedure which we had envisaged in our earlier report.
8. In one respect, however, Commons
Amendment 60 differs from the model which the Committee recommended.
Paragraph 2 of the new Schedule introduces a second 60 day delay,
by providing that a draft order cannot be approved by resolution
until "after the end of the period of 60 days beginning with
the day on which the draft was laid." The consequence is
that a proposal which meets with universal approval when laid
under paragraph 3 cannot be made until at least 120 days have
passed - and paragraph 6 (calculating periods) could make the
delay much longer.[3]
The Government explains that the procedure was devised in response
to concern expressed during the Lords proceedings on the Bill.
While we appreciate this positive response the procedure set out
in Commons amendment 60 is not, however, what we suggested in
our previous report - there is only one 60 day limitation in the
procedure under section 4 of the Deregulation and Contracting
Out Act 1994 - and we see no reason for the introduction of a
second 60 day period. We hesitated to draw this matter to the
attention of the House at such a late stage in the Bill's passage,
but do so because it may be that this exceptionally lengthy scrutiny
period will in practice make the procedure so slow as to belie
the definition "fast-track", and will in fact make it
unworkable, thus leading to greater reliance on the emergency
procedure. The Government and the House may therefore wish to
consider a simple amendment to Commons amendment 60 to remove
the second 60 day period.
Recommendation
9. The Committee wishes to draw
the attention of the Government and the House to our comments
on Commons amendment No. 60, introducing a 120-day parliamentary
scrutiny period for remedial orders.
NORTHERN
IRELAND BILL - FURTHER OBSERVATIONS
10. We reported on this Bill in
our 32nd report of this session.[4]
In that report we drew the attention of the House to the two instances
(in clause 70(3) and paragraph 6(1) of Schedule 6) where the Bill
provided for no Parliamentary control and in so doing departed
from the precedents in the Scotland Bill. We recommended that
the House might wish to consider amending the Bill to provide
for the negative procedure, as suggested in paragraphs 10 and
11 of our 32nd Report. Both these recommendations have been accepted
by the Government.[5]
11. The Government tabled a large
number of amendments, some of them containing delegated powers,
for the Committee stage of the Bill and on the first day in Committee
Lord Cope of Berkeley asked the Committee to report on these amendments.[6]
While we are anxious to give the House all the assistance that
we can, reporting on amendments presents practical problems for
us. The Government tabled Committee stage amendments (including
new powers) as recently as 22 October and our considerations have
had to be based on the Marshalled Lists and the print of the Bill
as introduced in the Lords, although a print of the Bill as amended
in Committee will be available by the time this Report is printed.
We have been helped by a supplementary memorandum, printed with
this Report, which the Department produced for us at a time when
they must have been under considerable pressure.
New delegated powers
12. An amendment to clause 6 proposed
the addition of new subsections (5) and (6) which allow an Order
in Council to specify functions which are to be treated, for such
purposes as may be specified, as being, or as not being, functions
which are exercisable in or as regards Northern Ireland and make
such an order subject to affirmative procedure.
13. Another amendment proposed the
insertion of a new clause after clause 19 which allows the Secretary
of State to revoke by order Northern Ireland legislation which
contains a provision dealing with an accepted or reserved matter.
A related amendment to clause 78 makes an order subject to negative
procedure.
14. Another amendment proposed the
insertion of a new clause after clause 20 which allows a Minister
of the Crown to make an order fixing the Northern Ireland share
of the United Kingdom's obligation under international agreements
to achieve a result defined by reference to a quantity. Before
making an order, the Minister must consult the Northern Ireland
Minister or Department concerned and a related amendment to clause
78 makes an order subject to negative procedure.
15. Another amendment proposed the
insertion of a new clause after clause 24 which provides what
is to happen if the Assembly passes a resolution that it should
be dissolved. The Secretary of State is to propose a date for
the poll for the election of the next Assembly and then an Order
in Council may direct that a poll shall be held on that date and
that the Assembly be dissolved on a specified date. There is no
Parliamentary control but the Committee does not consider such
control necessary in this instance.
16. Among the new clauses which
the government proposed should be inserted after clause 43 is
one about "Implementation bodies" (bodies for implementing
policies agreed in the North-South Ministerial Council). Under
that clause the Secretary of State may make an order conferring
on such a body corporate status and specified functions and enabling
grants to be made to it. The power extends to making consequential
or supplementary provisions including amendments or repeals to
Northern Ireland legislation. An amendment to clause 78 attracts
affirmative procedure.
17. The new clause which the government
proposed should be inserted after clause 68 confers on the Secretary
of State "legislative power to remedy ultra vires acts"
of the Assembly or a Northern Ireland minister or department.
An order under this clause may have retrospective effect and may
amend or repeal Northern Ireland legislation. An amendment to
clause 78 applies affirmative procedure.
18. Related amendments proposed
the omission from clause 71 of provisions enabling an Order in
Council to make provision with respect to reserved matters and
the insertion of a new clause conferring what the Department's
memorandum (paragraph 34) describes as a slimmed down version
of this power. There are aspects of the new clause to which the
Committee has given particular attention. The power now extends
to making provision having retrospective effect, allows the delegation
of functions and the amending or repealing of "any provision
made by or under any Act of Parliament or Northern Ireland legislation"
while the power it replaced did not appear to do so. However,
the Parliamentary control over the power has been strengthened
by adding to the affirmative procedure which clause 71 provided
a preliminary procedure under which a document containing a draft
of the proposed Order has to be laid before Parliament at least
60 days before the draft Order is laid before each House for approval.
The new clause also requires that document to be referred to the
Assembly for its consideration. Subsection (6) of the new clause
requires the Secretary of State to lay with the draft Order a
statement summarising any representations made during the 60 day
period and giving details of any resulting changes made to the
draft. In the Committee's view these safeguards make it unnecessary
for the Committee to invite the House to consider the matters
which we have mentioned.
19. The three new clauses which
the Government proposed should be inserted after clause 74 are
all concerned with the creation of a right of appeal by a person
whose claim that he has been discriminated against in contravention
of clause 19 (action by Minister or Northern Ireland Department
not to discriminate on ground of religious belief or political
opinion) or 61 (discrimination by public authorities on those
grounds) has been met with a certificate of the Secretary of State
that the act was justified for the purpose of safeguarding nation
security or protecting public safety or public order. The clauses
create a tribunal to hear appeals and allow an appeal on a point
of law from the tribunal to the Court of Appeal in Northern Ireland.
At the heart of this procedure will be rules to be made by the
Lord Chancellor. Rules may allow the reasons for the issue of
the certificate to be kept from the appellant and allow him and
his legal representative to be excluded from part of the proceedings.
If an appellant is excluded, the Attorney General for Northern
Ireland may appoint a member of the Bar of Northern Ireland to
represent the excluded party. In making these rules the Lord Chancellor
is required to have regard to the need to secure a proper review
of certificates while securing that information is not disclosed
contrary to the public interest. Rules will be subject to negative
procedure. When these new clauses were debated in Committee Lord
Williams of Mostyn explained that the scheme would be modelled
on the Special Immigration Appeals Commission.[7]
That Commission was established under the Special Immigration
Appeals Commission Act 1997 and under that Act the corresponding
rule-making power is subject to affirmative procedure. We commented
on this in our Report on that Bill[8]
when we welcomed the ministerial undertaking to make a draft of
the rules available to the House to assist detailed consideration
of the Bill at Committee stage. We consider that, in accordance
with the model of the 1997 Act, rules made under the new clauses
should be subject to affirmative procedure. The House may wish
to consider whether the Bill should be amended accordingly.
20. An amendment which the government
proposed should be made to clause 80 inserts (as subsections (6)
and (7)) an Order in Council power to specify the boundary between
"the waters or parts of the sea which are to be treated as
adjacent to Northern Ireland and those which are not". An
Order is subject to affirmative procedure.
21. Apart from our comments in paragraph
19 above, there is nothing else in any of these new powers, or
the level of Parliamentary control provided, to which the Committee
wishes to draw the attention of the House.
Other amendments
22. The government proposed that
a number of clauses should be omitted from the bill (clauses 43,
64, 65 and 67). There is nothing here on which the Committee wishes
to comment.
23. The government proposed that
a new subsection be added to clause 70 which would make an Order
in Council under clause 70(3)(a) or (b) subject to negative procedure.
The Committee recommended that negative procedure should apply
to this clause. The amendment excludes an Order under clause 70(3)(c)
making rules for regulating the procedure in relation to proceedings
under the bill before the Judicial Committee. Other rules regulating
the procedure of the Judicial Committee are not subject to negative
procedure and we accept that the amendment achieves consistency.
Paragraph 6 of Schedule 6
24. The Committee in its 32nd Report
considered that negative procedure would be appropriate for the
Order in Council under paragraph 6(1) providing for the Northern
Ireland Assembly Commission to be treated as a Crown body for
the purposes of any enactment. In Committee Lord Dubs promised
an amendment on Report to make this change.
Recommendation
25. We draw the attention of
the House to our recommendation in paragraph 19 that rules made
under the new clauses should be made subject to affirmative procedure.
We welcome the amendment to clause 70 in response to our 32nd
report, and the Government's undertaking to come forward with
a similar amendment to paragraph 6 of Schedule 6 on Report. The
Committee has found nothing else in the Committee Stage amendments
which it wishes to draw to the attention of the House.[9]
1 HL Paper 32. Back
2 House of Lords Deb., 3 November 1997, col. 1231. Back
3 Paragraph 6 reads as follows:
"In calculating any period for the purposes of this section, no account is to be taken of any time during which -
(a) Parliament is dissolved or prorogued; or
(b) both Houses are adjourned for more than four days."
With a parliamentary scrutiny period for remedial orders totalling 120 days this definition of calculating periods, which is common in legislation concerning Parliamentary procedure in relation to statutory instruments, would mean that the 120 day period would be extended in most cases to take account of periods when Parliament is in recess. Back
4 HL Paper 146. Back
5 HL Deb., 19 October 1998, col. 1183. Back
6 HL Deb., 19 October 1998 col. 1179 (Lord Cope of Berkeley) and col. 1183 (the Minister, Lord Dubs, speaking in reply). Back
7 HL Deb., 26 October 1998 col. 1790. Back
8 1st Report 1997-98, HL Paper 5. We commented as follows:
"The House may wish to consider carefully the potential width and importance of rules under Clause 4. Whilst the provision of the affirmative procedure gives some comfort, nevertheless the rules made under this section could limit what are normally regarded as fundamental rights of fair procedure. The Committee therefore views it as admirable and indeed essential that the Minister undertook during the Second Reading debate to make a draft of the rules available to the House to assist the detailed consideration of the bill in Committee." Back
9 This report is also published on the Internet at the House of Lords Select Committees Home Page (http://www.parliament.uk), where further information about the work of the Committee is also available. Back
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