Select Committee on Delegated Powers and Deregulation Eleventh Report


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.



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.

Clause 14

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.

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 1994).

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 an emergency.

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 against.

Uncommenced legislation

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.


15.  Lord Waddington's "private member's" bill[1] 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.[2]

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:/, where further information about the work of the Committee is also available. Back

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