Select Committee on Delegated Powers and Deregulation Ninth Report


10 MARCH 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 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 occasions.[1] One of these occasions was in our third report of this session, when we reported on the Pollution Prevention and Control Bill [HL].

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.[2]

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.[3]

4.  During the Committee stage members of the House expressed considerable dissatisfaction with the response.[4] 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."[5]

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 these issues.

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 issue.
  • 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 pollution.
  • Whether the categories of person to whom powers can be delegated[6] 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 obligations."[7] 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 issue.

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 powers.



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.

Clause 4(1)

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 7.


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 the House.

European Parliamentary Elections (Gibraltar) Bill [HL]

14.  The only power which this Bill contains is a commencement power.


15.  This Bill does not contain delegated powers.[8]

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

2   HL Paper 12. Back

3   HL Paper 21. Back

4   HL Deb., 15 February 1999. Back

5   col. 476. Back

6   This should read "sub-delegated". Back

7   HL Deb., 15 February 1999, esp. cols. 499-500. Back

8   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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