31 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.
PARLIAMENTARY GOVERNMENT BILL [HL]
1. This "private member's" bill contains
many controversial proposals but only one delegated power. It
does, however, contain provisions which would impact on the work
of the Committee.
2. This clause applies to the offices listed
in the Schedule (one such office is "Lord of Appeal in Ordinary,
so long as the European Convention on Human Rights is incorporated
in U.K. law"). The clause requires that each House approve
the appointment after the selection of the person concerned has
been "confirmed" by an appropriate Commons committee
after consulting any appropriate Lords committee (or a joint committee).
Subsection (3) is a Henry VIII provision allowing a minister to
alter the Schedule by order subject to affirmative procedure,
which the Committee considers provides the appropriate level of
Parliamentary control over subordinate legislation
3. Clauses 4 to 8 are concerned with Parliamentary
control over the delegation of legislative powers and the exercise
of delegated power.
4. Clause 4 seeks to place the Committee's work
of scrutiny on a statutory basis. The Committee is grateful for
this implicit tribute to its work. By way of returning the compliment,
the House may find it helpful to have before it the following
analysis of how the clause would work.
5. In the first place the clause would provide
for the Lords to have a statutory veto over the inclusion in legislation
of delegated powers. Then the clause requires the decision on
the acceptability of delegated power to be made "at or before
second reading", which might lead to delaying second reading.
The clause does not distinguish delegation which is inappropriate
from delegation which is subject to an inappropriate degree of
Parliamentary scrutiny, but a delegation may only be appropriate
if accompanied by a particular form of scrutiny (the position
that this Committee took in relation to deregulation orders in
the bill which became the Deregulation and Contracting Out Act
6. Clause 5 would require the Scottish Parliament
and the Northern Ireland Assembly to send all bills to the Committee
and require the Committee's report to be laid before the Parliament
or the Assembly as the case may be.
7. Clauses 6 to 8 are concerned with the Parliamentary
procedures when an affirmative (clause 6) or negative (clause
7) instrument or draft is laid before Parliament. Clause 8 supplements
clause 6 and 7.
8. Clause 7 introduces into all legislating by
affirmative instrument a delay of at least 80 days between the
laying of a draft and the making of the instrument unless the
"urgent" procedure is used. The result might be a temptation
for ministers to use the urgent procedure in most cases. At present
some legislation conferring power to make affirmative instruments
provides for an emergency procedure for use when even the present
procedure imposes unacceptable delay (eg. the power to proscribe
terrorist organisations under Northern Ireland emergency legislation).
The House may wish to note that clause 7, as presently drafted,
would make it necessary to repeal the existing powers to act in
9. Where the "emergency" procedure
has been used, the minister lays the instrument before Parliament
together with a document explaining why it has been made. If within
60 days of the making of the instrument anyone makes representations,
at the end of that period the minister must lay before Parliament
a summary of the representations and, if he is persuaded that
changes are needed, details of the changes. If he proposes changes,
he must also make "a further instrument replacing the original
instrument" and lay it before Parliament. Then if neither
the original nor the replacement instrument has been approved
by both Houses within the period of 120 days beginning with the
day when the original instrument was made, the second instrument
(which replaced the first) ceases to have effect (but without
affecting anything previously done under either instrument).
10. Clause 7 also lays down a Parliamentary procedure
for "negative instruments". The minister must lay before
Parliament a copy of the instrument and a statement of the reasons
for making it. If representations are made within 40 days, the
minister must lay before Parliament a summary of the representations
and of the changes, if any, he now thinks should be made to the
instrument. If he thinks changes are necessary, he must make a
new instrument and lay that before Parliament (when presumably
the procedure begins again). If he does not wish to change the
original instrument, and either House resolves that it shall cease
to have effect "it shall cease to have effect on that day".
11. If the House were to agree to clause 7 it
would be necessary to repeal section 5 of the Statutory Instruments
Act 1946 (which the bill, as presently drafted, does not do).
That section sets out the procedure which applies when legislation
makes a statutory instrument subject to annulment by resolution
of either House of Parliament. Section 5 provides that if within
40 days of the laying of the instrument either House resolves
that an address be presented to Her Majesty praying that the instrument
be annulled "no further proceedings shall be taken thereunder"
- and Her Majesty may by Order in Council revoke the instrument.
Under the existing procedure there would then be published a statutory
instrument which revokes the instrument which has been prayed
12. Clause 12 relates to a subject which the
Committee has considered several times - the lack of Parliamentary
control over the failure to exercise a commencement power. The
clause proposes a 5 year life for uncommenced legislation (and
so condemns, inter alia, the Easter Act 1928). Subsection
(2) requires the minister who had power to make the commencement
order to report to Parliament (and, where appropriate, to the
Scottish Parliament and the Welsh Assembly) the fact that an enactment
has lapsed under the clause. The report is made "a document
contained in a statutory instrument".
13. Clause 22(2) is a commencement power limited
to clause 18 (limitation on ministerial offices). The intention
is that the clause shall come into force on 1 January 2010 or
such earlier date as may be specified in a commencement order.
14. The House will wish to note the Henry VIII power
in clause 14(3). The Committee is grateful for the tribute implicit
in clauses 4 and 5. There is nothing within the Committee's terms
of reference which the Committee needs to draw to the attention
of the House.
EUROPEAN TAX HARMONISATION (VETO) BILL [HL]
15. Lord Waddington's "private member's"
contains one delegated power. The bill provides that a minister
may give agreement in the Council of Ministers to a tax harmonisation
proposal only if both Houses agree and there has been a majority
in favour in a referendum held for the purpose. The bill does
not provide the machinery for holding a referendum which it leaves
to be provided by an order made by the Secretary of State. An
order is subject to affirmative procedure. The Committee accepts
that both the delegation and the Parliamentary control are appropriate.
16. As the bill stands there will need to be
an affirmative order for each proposal (as the order will fix
the date of the referendum as well as the procedure). Laying a
draft order and obtaining the necessary resolutions will take
time and will add to the necessary delay involved in organising
and holding a referendum.
17. There is nothing in the bill which the Committee
wishes to draw to the attention of the House.
1 As a member of this Committee Lord Waddington took
no part in the Committee's deliberation on this bill. Back
2 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