Select Committee on Delegated Powers and Deregulation Fifth Report


13 JANUARY 1999

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 has rightly been heralded as the greatest shake-up of legal services since legal aid was introduced by the Legal Aid and Advice Act 1949. Many of the changes are made in the bill itself but important issues are left to be settled by the use of delegated powers cast in wide, enabling terms. Some of the issues to which these suggested delegated powers relate are of fundamental importance within a democratic society. They affect the extent to which a citizen may be granted or denied access to justice to promote or defend rights and liberties. They raise for consideration how far control by the state of the means of access to justice may erode the separation of powers and put individuals at a disadvantage when seeking to defend themselves against claims brought by the very government which also has the power to prescribe how effectively they may be represented. So the proposed delegated powers fall to be considered rigorously.


2.  In addition to the memorandum from the Lord Chancellor's Department, we have received evidence from the British Medical Association, from the General Council of the Bar and also from Jonathan Hirst QC, its Vice-Chairman, and from the Law Society. This is printed in the annex to this Report.

legal services commission

3.  Clause 1 establishes the Legal Services Commission, which is to have wide-ranging functions relating to the work of the Community Legal Service and the Criminal Defence Service. Clause 2 empowers the Lord Chancellor to establish two separate bodies, rather than one, to carry out the functions of the Commission. Clause 3 gives the Commission its powers. Clause 4 provides that the Lord Chancellor may give directions to the Commission requiring it to discharge its functions in any manner specified in the directions. The power to give directions is amplified by clause 6(4), which empowers the Lord Chancellor to impose requirements on the Commission as to descriptions of services to be funded from any specific amount paid into the community legal service. They are further amplified by clause 7(1) (directions setting priorities in funding services), clause 7(7) (directions requiring the funding in specified circumstances of services otherwise excluded by Schedule 2) and clause 18(2) (directions as to funding of services relating to foreign law). By clause 9 the Commission, in the code governing the provision of services to the community legal service, must take into account all factors which the Lord Chancellor may require it to consider by directions under clause 4. So the Commission has wide-ranging responsibilities crucial to the sound administration of both civil and criminal justice and the standards of advice and service to be provided in each area of our law. In turn, the nature and scope of directions given by the Lord Chancellor will be crucial to the operation of the Commission and the way in which it provides access to justice. Yet the power of the Lord Chancellor to give directions is almost untrammelled. We view this with considerable concern.

4.  The explanatory notes state (paragraph 62) that the purpose of these provisions is to establish a flexible mechanism by which the Lord Chancellor can ensure that the Commission discharges its functions in a way that meets the government's policy objectives and, in particular, that it allocates the resources of the Community Service Fund according to "national priorities". The Committee sees such very wide-ranging power to give direction as a legislative power. The policy objectives and national principles are not set out in the bill, which contains no parameters or criteria for the exercise of his powers by the Lord Chancellor, but are simply left to be supplied by directions. We see the setting of objectives and priorities which will have such important consequences for citizens as a legislative act. At Second Reading Lord Bingham of Cornhill urged that fundamental principles which will determine how the machinery established by the Bill will work should be clearly set out on the face of the bill (Column 1126). Lord Mackay of Clashfern stated that there was, in the interests of fairness, a need for criteria to be known and he suggested they should be part of the primary legislation. So long as these principles and criteria are left to be established by directions it is, in our view, impossible to accept that the directions are merely administrative arrangements and that the only formal requirement is that they should be published (clause 4(4)).

5.  In regard to the Community Legal Service, we consider that, if significant delegated powers are to be granted under clause 4, the Bill should be amended so as to contain (a) a clear statement of principle that the objective of the Community Legal Service is to promote and enhance the opportunities for citizens to have access to legal advice and the opportunity to resolve disputes, and (b) the criteria which the Lord Chancellor is entitled to take into account in giving directions. We believe that it is the more important to circumscribe the Lord Chancellor's powers in this way since, as the Explanatory Notes explain, the Community Legal Service Fund will "not be an open-ended fund, as the legal aid fund is now."[1] By clause 6(1) the Lord Chancellor shall pay to the Commission sums which he determines are appropriate for the funding of their services. Unless there is a statement of principle, as well as the inclusion of criteria for giving directions under clause 4, directions could be given in the interests of financial stringency which take too little account of the important aims to which the explanatory notes and the Lord Chancellor's speech at Second Reading clearly suggest the Act aspires.

6.  In respect of the Criminal Defence Service, it is not clear why the Lord Chancellor should need power to give directions. Legal assistance in criminal cases is of particular importance as the defendant's reputation and liberty are at risk. Moreover, the state is a party to the case and it would be disturbing if a minister has an undefined power to change the arrangements for giving legal assistance to the impecunious defendant. It appears to us, as we would expect, that directions in relation to legal assistance in criminal matters are intended to be limited to purely administrative arrangements. If so, it would be helpful if this were made clear on the face of the bill. If not, and the directions can deal with matters of principle and substance, it has to be remembered that one of the Convention rights protected by the Human Rights Act 1998 is the right of a person charged with a criminal offence who "has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require" (Article 6.3(c)). Parliament will wish to be confident that the bill will ensure that this Convention right is guaranteed. The difficulty in establishing that this will be the case is that the general terms of clause 4 would allow directions to be given which might restrict the protection that the Commission are able to provide under clause 12. If the general power to give directions is to apply to criminal matters, the House may consider that unless the bill is amended to establish appropriate criteria for the way directions can be used, it will not be possible to guarantee that Convention rights will be respected.

7.  We are also conscious that the power in the bill to give directions is intended to cover not only the matters of principle and substance which we have discussed in earlier paragraphs but also instructions about administrative matters where there is no need for formality and where urgent action may be required. We see this as reinforcing our opinion that the bill fails to distinguish between legislative and administrative acts. The House will wish to consider whether the power to give directions about other than administrative matters should be replaced by a power to make such provision by order (or regulations) leaving directions to deal only with administrative matters. We have said earlier that we believe that the bill should state the objectives of the Community Legal Service, and the factors to be taken into account by the Lord Chancellor in giving directions to the service. While this would go a long way to meeting our concerns we believe that directions of substance should be made by orders (or regulations) which should be subject to affirmative procedure.


8.  Clause 9(1) requires the Commission to prepare a code setting out the criteria according to which its funding decisions are to be taken. Subsections (2) to (7) make supplementary provisions about the preparation of the code and subsection (8) provides that the code shall not have effect unless approved by the Lord Chancellor. Subsection (9) provides for the Lord Chancellor to lay before each House a copy of the code once he has approved it. We accept that it is appropriate that this legislative power should be delegated to the Commission but in view of the significance of the code for those seeking access to justice we are concerned that Parliament is given no part to play in the control over the exercise of the power. The Committee invites the House to consider whether the bill should be amended to provide that the code should be laid before Parliament in draft and brought into force by an order made by the Lord Chancellor and subject to affirmative procedure.


9.  Clause 35 gives effect to Schedule 5, paragraph 2 of which substitutes a new Schedule for Schedule 4 to the Courts and Legal Services Act 1990. Part III of the new Schedule is concerned with the alteration of regulations and rules by order. Paragraph 17(1) provides that "If the Lord Chancellor is of the opinion that it may be appropriate for him to make alterations of any of the qualification regulations or rules of conduct of an authorised body, he may give written notice to the body." Subsequent provisions in Part III set out the procedure which is then to be followed. The process ends with the Lord Chancellor considering the advice he has received (including that of the four designated judges) and then deciding whether or not to make the alterations. The House will be aware of the arguments that have been advanced at Second Reading that the judges have a constitutional role in relation to rights of audience and that the Lord Chancellor should not act without the consent of the designated judges (or a majority).

10.  The Committee's concern is that the bill does not provide any indication as to the basis on which the Lord Chancellor is to form his opinion as to whether it is appropriate to make alterations to the regulations or rules. There must be strong justification for requiring a professional body to change its own rules of conduct or the regulations which determine qualifications for membership. The Department's Memorandum draws attention to the general principle and statutory objective set out in section 17 of the Courts and Legal Services Act 1990 (paragraph 66). That objective is the development of legal services by making provision in new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice. This provision, however, does not significantly limit a power of the Lord Chancellor to alter the rules of independent professions, since by paragraph 17(1) he is able to act if he "is of the opinion that it may be appropriate for him . . ." to do so. Paragraph 67 of the memorandum states that the government does not wish to take away from the authorised bodies general power to regulate the rights of audience and rights to conduct litigation of their members; this is a "reserve" power to ensure that "the will of Parliament is not defied". At Second Reading the Lord Chancellor (Column 1111) described it as a "fall-back power to intervene in the rules of professional bodies if they unreasonably restrict rights of audience". Lord Bingham of Cornhill, while not disputing that the Lord Chancellor should have this power, nonetheless suggested (Column 1126) that the bill should specifically include the principle that a strong, independent and self-regulating legal profession should be preserved.

11.  We conclude that, if a delegated power were to be granted to the Lord Chancellor of the kind sought, the House would wish to consider (a) whether Schedule 5, paragraph 17, could be circumscribed allowing the intervention of the Lord Chancellor if, and only if, he was of the opinion that the regulations of the profession unreasonably restricted rights of audience or rights to conduct litigation and (b) whether the principle referred to by Lord Bingham should be stated on the face of the Bill. Even if amended in the way we propose, this important power to give directions should be subject to the affirmative procedure.

Henry viii clauses

12.  Clause 7(6) allows the Lord Chancellor to make regulations amending Schedule 2 (which lists legal services which may not be funded by the Legal Services Commission as part of the Community Legal Service). This is an important power and it is properly made subject to affirmative procedure by clause 23(3).

13.  Clause 61 is concerned with the transfer of administrative functions of justices' clerks to justices' chief executives. Schedule 9 effects the statutory transfers but clause 61(2) allows the Lord Chancellor by order to transfer other administrative functions and subsection (3) allows the order to make amendments to enactments. An order is subject to negative procedure. The Committee considers that this should provide the appropriate degree of control as Parliament will consider the case for transferring administrative functions and once that is agreed, the transfer of particular functions will not raise further important issues for Parliament to consider.

14.  Schedule 3 is concerned with the new Criminal Defence Service and an individual's right to representation. Paragraph 4 confers on the Lord Chancellor power to make regulations conferring on the Commission power to grant rights of representation in respect of criminal proceedings or to delegate that power. Regulations may restrict or exclude the power of a court to grant representation and may amend the Schedule or any other enactment. Regulations under paragraph 4 are subject to affirmative procedure (clause 23(3)), which the Committee considers appropriate.

15.  There is another Henry VIII power in Schedule 3. Sub-paragraph (3) of paragraph 6 allows the Lord Chancellor to amend by order sub-paragraph (2) (the list of criteria for the grant of right to representation). Orders are subject to negative procedure. In the light of the importance of the issue the House may wish to consider whether the affirmative procedure is more appropriate.

affirmative powers

16.  In addition to the two Henry VIII powers discussed above, the following powers are subject to affirmative procedure - orders under clause 2, regulations under clauses 11(2)(a), (b) or (c), 14(6)(a), 25, 27 (new section 58(4) - see subsection (2) of the clause) and 40(1), regulations under paragraph 4 of Schedule 3, orders under paragraph 24 of the new Schedule 4 to the Courts and Legal Services Act 1990 and Orders in Council under Part I or Part IV of that Schedule (which is substituted by Schedule 6 to the bill). All these powers are significant and the Committee considers the affirmative procedure provided for is justified.

powers not subject to parliamentary control

17.  Clause 78(1) contains a simple commencement power but it is supplemented by Schedule 10 which contains numerous transitional provisions and savings. Paragraph 1 of that Schedule is a general power to make by order transitional provisions and savings. There are further transitional powers in paragraphs 8, 9 and 12. All these powers are of a kind which it is common to find associated with the commencement of major legislation, and are not normally subject to Parliamentary control.

18.  Part V of the bill is concerned with magistrates' and magistrates' courts. It contains a number of powers which are not subject to Parliamentary control:-

In clause 49(1) (new section 1(2) of the Justices of the Peace Act 1997 - order dividing England and Wales into commission areas). But an order altering a commission area is subject to negative procedure (new section 32A in clause 49(2)).

In clause 50, orders under new section 4(2).

In clause 55, orders under new section 27A(2), but amendments are subject to negative procedure (see subsection (8)).

In clause 62(3), regulations under new section 60A.

In paragraph 14(3) of Schedule 8, an order under new paragraph 15(2).

19.  The Committee considers that all these powers are such that it is not inappropriate for there to be no Parliamentary control.

clauses 68 and 72

20.  All the other powers in the bill are subject to negative procedure. The Committee is concerned that this may not be appropriate for the powers in clauses 68 and 72.

21.  Clause 68 inserts in the Justices of the Peace Act 1997 a new section 53A about orders for costs against justices or their clerk (the clause also makes similar provision for Northern Ireland). The new section prevents a court making an order for costs against a justice or clerk save in the circumstances specified in subsection (2). Where the court is prevented from making an order against a justice or clerk, subsection (3) allows the court to order the Lord Chancellor to pay; but subsection (4) provides for the Lord Chancellor to make regulations specifying circumstances when a court shall or shall not exercise that power and how the amount to be paid by the Lord Chancellor is to be calculated. We anticipate that such a power would be rarely used, but there is nonetheless an argument that regulations cutting back a court's power to make such an order should be subject to the additional Parliamentary scrutiny provided by affirmative procedure (particularly as the regulations apply to all courts).

22.  A similar point arises in relation to regulations under the new section 2A(4) inserted in the Taxes Management Act 1970 by clause 72. The Committee invites the House to consider whether affirmative procedure would be more appropriate for the powers in clauses 68 and 72.

summary of recommendations

23.  The Committee has in earlier paragraphs drawn the attention of the House to a number of issues affecting access to justice and the rights of the individual, including the power of the Lord Chancellor to give directions under clause 4 (paragraphs 5-7), the code about provision of funded services (paragraph 8), alteration of qualification regulations or rules of conduct (paragraph 11), and the Henry VIII power in Schedule 3 allowing the Lord Chancellor to amend the criteria for the grant of right to representation (paragraph 15). We also suggest affirmative procedure for the powers in clauses 68 and 72.

24.   There is nothing else in the bill which needs to be drawn to the attention of the House.


25.  The only delegated power in this bill is in clause 9. This clause provides that the Secretary of State may make regulations about a number of incidental matters (eg proceedings and fees). Subsection (2) makes the regulations subject to affirmative procedure. There is nothing in the bill which the Committee wishes to draw to the attention of the House.


26.  There are no delegated legislative powers in this Bill.[2]

1   Paragraph 68. Back

2   This report is also published on the Internet at the House of Lords Select Committees Home Page (http:/, where further information about the work of the Committee is also available. Back

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