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.
POLLUTION PREVENTION AND CONTROL BILL [HL]
1 This bill is essentially enabling legislation
conferring upon the Secretary of State powers to make regulations
providing for a new system of pollution prevention and control. The width of the powers to be conferred by section 1
to regulate activities capable of causing environmental pollution
or in connection with the prevention or control of such pollution
is virtually unlimited.
2 The powers include, but are not confined to,
regulations for any of the purposes listed in part 1 of Schedule
1 (clause 1(2)). Any activity, not merely industrial or commercial
activities, may be controlled if it produces pollution which is
defined so widely that few activities escape (clause 1(3)). There
is a power for the regulations to delegate to a third party anything
which could be determined under the regulations. There is no limitation
expressed to this further delegation so that in theory it is possible
for vital elements in the controls to be left to be determined
by a person specified in the regulations. Nor is there any limitation
upon the category of persons to whom such powers of determination
may be further delegated (clause 1(4)(a)). Regulations may include
consequential, incidental, supplementary, transitional or saving
provisions (including provisions amending, repealing or revoking
enactments). This Henry VIII power ranges wide because the
scope of the regulation-making power is in no way clearly defined
and is thus virtually unlimited.
3 Schedule 1 lists the particular purposes for
which regulations may be made. But it does not cut back in any
way the power in clause 1 and is not concerned with identifying
the particular activities which may be the subject of regulation.
In one sense it actually expands clause 1(1) since it makes
clear that regulations concerned with the particular activity
may include provisions establishing "regulators",
requiring permits and imposing penalties, which are all provisions
which might not fall within the ambit of clause 1(1). The
offences created by the regulations can be made to carry penalties
of up to six months'
imprisonment or a fine not exceeding £20,000
(or both) when tried summarily, or imprisonment for not more than
five years or an unlimited fine (or both) when tried on indictment.
4 The bill provides that the regulations shall
in all cases be governed by the negative resolution procedure.
5 In its memorandum (paragraphs 1.2 to 1.6) the
DETR explain that the legislation will implement Council Directive
96/61/OC concerning integrated pollution prevention and control
which requires the regulation of emissions into the air, water
and land from installations carrying out the activities listed
in the Directive. The Department explains that regulations will,
however, go beyond the ambit of the Directive and supersede the
regime provided by Part I of the Environmental Protection
Act 1990. They argue that the powers in clause 1 of the bill
will enable a single comprehensive pollution control regime to
be set up to satisfy both the requirements of the Directive and
to supersede the Part I regimes. They suggest that this objective
can appropriately be achieved through regulations because the
Directive itself could have been implemented by the reliance on
existing delegated powers in section 2(2) of the European
Communities Act 1972 and harmonisation with the Part I regimes
achieved by making regulations under Part 1 of the 1990 Act.
We find it difficult to see that this reasoning justifies proceeding
by enabling legislation conferring such very wide delegated powers.
The structure of the 1990 Act is very different; much of the substance
of the controls is in the Act and regulations have a secondary
rather than a primary role; there is no power to delegate; and
a narrower definition of pollution limits the scope of activities
which can be the subject of regulations. But our fundamental concern
is as to whether it can ever be right to legislate on a topic
of such importance, which provides for widespread controls and
affects activities carried on both on a commercial and private
basis, leaving everything of substance to be determined either
by or under the regulations. So far as we can judge there is no
specific issue of policy which the provisions of the Bill seek
to decide. All that it does is to confer powers to make regulations
to control or prevent pollution.
6 We are bound to report to the House that
as at present drafted this is a "skeleton"
bill and so is an inappropriate delegation of secondary powers.
7 If the House shares our concern it will no
doubt wish to consider whether the bill can be saved by amendments
which specify with more precision the ambit of the legislation
and the criteria to be taken into account in making regulations.
The following issues could fall for consideration:
Whether the legislation should be limited solely
to matters provided in Schedule 1.
Whether there should be a clear indication of
the ambit of powers which may be delegated.
Whether the categories of person to whom powers
can be delegated under the regulations to determine matters which
could have been provided in the regulations should be specified.
Whether the legislation should provide in terms
that permit conditions and regulations should always be based
on the use of the "best
including cost/benefit assessments as the Explanatory Notes contemplate.
Whether the bill should provide that no regulation
should be made without proper consultation. The Explanatory Notes
record consultation about the implementation of the Directive
and state that "a
third consultation paper, including a draft of the regulations
which the Secretary of State proposes to make under the Bill,
is due to be published before the end of 1998".
We have since been informed by the DETR that the regulations will
be available for the consultation which will take place in early
January 1999. It is clearly recognised to be proper practice to
consult on the regulations and it would seem appropriate to include
a requirement to do so within the primary legislation.
8 Whether or not the substance of the bill is
amended we are concerned that the regulations should be subject
only to the negative procedure. We consider that in the first
instance of their use the regulations should be subject to the
affirmative procedure. We also consider that any subsequent regulations
which create new offences, or increase penalties for offences
created under the initial regulations, should be governed by the
affirmative procedure. In the light of the width of the Henry
VIII power, we consider that any regulations which amend or repeal
an Act of Parliament should be subject to affirmative procedure.
9 Clause 2 does not create a new power. It allows
an Order in Council under the Government of Wales Act 1998 transferring
Ministerial functions under the bill to be made by negative procedure
and not the affirmative procedure provided by the 1998 Act. The
Committee considers this appropriate as Parliament has the opportunity
during the passage of the bill to consider the merits of transferring
functions under the bill. Clause 2 also allows functions under
the bill to be transferred to the Scottish Executive under powers
contained in the Scotland Act 1998.
10 The Committee wishes to draw the attention
of the House to its conclusion that the bill as presently drafted
is a skeleton bill and to its suggestions in paragraphs 7 and
8 of this Report of ways in which it might be amended to improve
11 The Committee would also wish to add that,
even if the House accepts the bill with any such amendments as
being justified for the reasons which the DETR give for proceeding
by such wide-ranging enabling legislation, the Committee would
not wish this bill to be regarded as a precedent for the future.
It remains important that the purposes and ambit of legislation,
together with any important governing criteria, should be clearly
specified within the primary legislation and not simply left to
the exercise of delegated powers.
YOUTH JUSTICE AND CRIMINAL EVIDENCE BILL [HL]
12 Part I of the bill is concerned with the referral
of offenders under 19 to youth offender panels. The remainder
of the bill makes a number of important changes to the law and
procedure about prosecutions and trials. While there are many
important issues which will be discussed during the passage of
the bill, the Committee is restricted to commenting on the delegated
HENRY VIII CLAUSES
13 Clause 2(3) allows the Secretary of State
to make regulations amending the clause to alter the description
of offenders to which it applies.
14 Clause 18(4) allows the Secretary of State
to make an order amending the clauses concerned with special measures
to protect vulnerable and intimidated witnesses (clauses 16 to
32). An order may modify provisions relating to any measure available
in relation to such a witness by modifying existing measures,
adding new ones and removing old ones but may not alter the circumstances
in which a special measures direction may be made.
15 Clause 41(2) allows the Secretary of State
to make an order "adding,
or removing, for the purposes of section 40, any offence to or
from the offences which are sexual offences for the purposes of
this Act by virtue of section 57(1) and (2)".
This is not a true Henry VIII provision as no textual amendment
is involved (the definition in clause 57(1) and (2) is needed
for other provisions in the bill which are not affected by clause
41(2)). It is convenient to discuss the power here and it is,
like the true Henry VIII powers in the bill, subject to affirmative
16 Paragraph 13(8) of Schedule 1 allows the Secretary
of State to make regulations amending paragraphs 10 to 13 of the
Schedule to alter the descriptions of offenders who may have their
compliance period extended under those provisions.
17 In the Committee's
view none of these powers is inappropriate. They are all subject
to affirmative procedure, which the Committee considers provides
the appropriate level of parliamentary control.
18 With the exception of the commencement power,
all powers which are not subject to affirmation procedure are
subject to negative procedure. None raises issues which the Committee
wishes to draw to the attention of the House.
19 The Committee has mentioned the Henry VIII
powers in the bill. There is nothing else which the Committee
wishes to draw to the attention of the House.
DISABILITY RIGHTS COMMISSION BILL [HL]
20 This bill establishes a Disability Rights
Commission. Apart from the commencement powers, the new powers
created by the bill are subject to negative procedure.
21 Regulations under clause 4(3) are important
as they add teeth to non-discrimination notices by the Commission.
Regulations may also extend the meaning of "unlawful
in the clause (see subsection (6)). Although both powers are important,
the Committee considers appropriate the negative procedure provided.
Similar considerations apply to the corresponding provisions in
clause 5 (agreements entered into by Commission in lieu of enforcement
CODES OF PRACTICE
22 Clause 8 inserts in the Disability Discrimination
Act 1995 a section about codes of practice to be issued by the
Commission. The Committee notes with approval the inclusion in
the section of requirements about consultation and laying draft
codes before Parliament (when either House can resolve not to
approve the draft).
23 The side note indicates that this clause is
a Henry VIII clause but it does not create a new power, rather
it modifies an existing one which is subject to negative prodedure.
Section 7 of the 1995 Act exempts from the requirements of the
Act small businesses which it defines as those with fewer than
20 employees. An order under subsection (2) can reduce that number.
24 There is nothing in the Bill which the
Committee wishes to draw to the attention of the House.
TRUSTEE DELEGATION BILL [HL]
25 The only delegated power in this bill is a
simple commencement power. There is nothing in the bill which
the Committee wishes to draw to the attention of the House.
CONTRACTS (RIGHTS OF THIRD PARTIES) BILL [HL]
26 There are no delegated legislative powers
in this Bill.
1 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