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] - GOVERNMENT AMENDMENTS FOR CONSIDERATION ON REPORT
1. This Committee uses the term skeleton Bill
to describe Bills which are little more than a licence to legislate.
We are glad to say that although the Committee always considers
whether the provisions of any Bill inappropriately delegate legislative
power, during the six years of the Committee's existence we have
found it necessary to describe a Bill as skeletal on only three
One of these occasions was in our third report of this session,
when we reported on the Pollution Prevention and Control Bill
2. We described this
Bill as "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".
We concluded that we were "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." We
suggested that if the House shared our concern it might wish to
consider whether the bill could be saved by amendments which specified
with more precision the ambit of the legislation and the criteria
to be taken into account in making regulations.
The Government's Response
3. The Government responded to our 3rd report
in the form of a letter to the Chairman from Lord Whitty, Minister
for Roads, Department of the Environment, Transport and the Regions.
The Minister's letter was placed in the Library of the House,
and we drew attention to its existence in our 6th report, where
we commented that it was for the House in Committee to consider
the adequacy of the response.
4. During the Committee stage members of the
House expressed considerable dissatisfaction with the response.
In his reply, Lord Whitty said: "
the Select Committee
on Delegated Powers and Deregulation
has given us something
to think about. We have thought about parts of it - and amendments
will come later this afternoon which deal with that. There are
other parts which we will need to consider further, and we will
also need to consider the remarks of noble Lords. I hope that
we will allay most of the anxieties at a later stage."
The Government's Report Stage Amendments
5. In our 3rd report we suggested that six issues
relating to the delegated powers in this bill could fall for consideration.
For the convenience of the House at report stage, we rehearse
these in paragraphs 6 and 7 and note against each one which of
the amendments tabled by the Government for report stage addresses
6. The issues were as follows:
- Whether the legislation should be limited solely
to matters provided in Schedule 1: The Government amendments
1, 2 and 3, printed in the Annex to this Report, address this
- Whether there should be a clear indication of
the ambit of powers which may be delegated: Government amendments
4 and 5 provide greater clarification of the definition of environmental
- 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: Government
amendments 6, 9 and 14 limit the scope of this power to those
areas mentioned in Schedule 1 where it is necessary to sub-delegate.
- Whether the legislation should provide in terms
that permit conditions and regulations should always be based
on the use of the "best available techniques" including
cost/benefit assessments as the Explanatory Notes contemplate.
This recommendation was explored by amendment during the Committee
stage of the Bill on 15 February, but was resisted by the Government.
The Minister assured the House that Best Available Techniques
(BAT) would "be at the heart of the new regime", but
stated that "the reason why we cannot be as absolute as the
amendment would require is that there are circumstances in which
we would need to be more restrictive than the BAT provisions would
allow in order to comply with European or other international
We interpret this sentence as also meaning that in no circumstances
would criteria less strict than BAT be used. The House may wish
to seek formal confirmation of this from the Minister.
- Whether the bill should provide that no regulation
should be made without proper consultation. 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: Government amendment 7 addresses this
7. We were also concerned that the regulations
were subject only to the negative procedure. We considered that
in the first instance of their use the regulations should be subject
to the affirmative procedure. We also considered 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 considered that any regulations which amended
or repealed an Act of Parliament should be subject to affirmative
procedure: Government amendment 8 addresses these three points.
8. This Committee, and clearly the House as
a whole, have found this a difficult bill. We believe that this
stems from the framework nature of the bill. We therefore wish
to reiterate the following general remarks which we made in our
3rd report. "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."
9. Nonetheless, the amendments printed in
the Annex to this report which the Government proposes to move
at the Report stage of the bill meet all but one of the issues
which the Committee suggested in its 3rd report that the House
might wish to consider if it wished to save the bill. As regards
the remaining issue, relating to the use of best available techniques,
we are satisfied with the assurance and explanation given by the
Minister at Committee stage, subject only to formal confirmation
on the point which we have referred to in paragraph 6. We are
therefore satisfied with the Government's response to our 3rd
report as set out in the Department of the Environment, Transport
and the Regions' supplementary memorandum to the Committee dated
8 March 1999. Taken together, these amendments would circumscribe
and provide criteria for what were previously excessively wide
SEXUAL OFFENCES (AMENDMENT) BILL
10. The bill reduces to 16 the age at which certain
sexual acts are lawful but creates an offence of "abuse of
position of trust" for the protection of persons under 18.
"Position of trust" is defined in clause 4. Four "conditions"
are set out in the clause stating when a person will be regarded
to be in a position of trust. Subsection (2) relates to persons
detained in an institution by authority of the law; subsection
(3) relates to persons resident in children's homes or similar
institutions; subsection (4) relates to persons being cared for
in hospitals or similar institutions; and subsection (5) relates
to persons receiving full time education in an institution. In
each case the prohibition covers those who are regularly involved
in caring for, training or supervising persons under 18.
11. In addition to the "conditions"
specified in the primary legislation there is also provision for
an order under clause 4(1) to specify a "condition".
If that condition is satisfied, the person is subject to the prohibition
in clause 3(1). The Committee's understanding is that such a condition
would be additional to those prescribed in the primary legislation
and would not be able to modify or detract from those important
protections. This is clearly a significant power to extend an
offence in a controversial area. But the Committee accepts the
reasoning of the Home Office in the memorandum (which is printed
with this report) that it may be necessary to extend these provisions
for the protection of persons under 18 to cases not covered by
clause 4(2) to (5). The power is made subject to affirmative procedure
by clause 4(6), and the Committee considers that this provides
the appropriate level of parliamentary control given the sensitive
nature of the subject matter.
12. There is a simple commencement power in clause
13. Although the subject matter of the bill is
both sensitive and controversial, there is nothing in its delegated
powers which the Committee wishes to draw to the attention of
European Parliamentary Elections (Gibraltar)
14. The only power which this Bill contains is
a commencement power.
SCOTTISH ENTERPRISE BILL
15. This Bill does not contain delegated powers.
1 The other occasions were the Child Support Act 1991,
which we touched on in our 1st report of session 1992-93 (HL Paper
57, paragraph 15) and the Jobseekers Bill in session 1994-95 (5th
report, HL Paper 50) and 6th report, HL Paper 54). On two other
occasions the Committee has made clear that it had come very close
to describing a particular bill as skeletal (the Child Support
Bill in session 1994-95 - 10th report, HL Paper 71) and the Fireworks
Bill in session 1997-98 (16th report, HL Paper 96). Back
HL Paper 12. Back
HL Paper 21. Back
HL Deb., 15 February 1999. Back
col. 476. Back
This should read "sub-delegated". Back
HL Deb., 15 February 1999, esp. cols. 499-500. Back
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