Select Committee on Delegated Powers and Deregulation Thirteenth Report


21 APRIL 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 makes many important changes in employment law - more than its 38 clauses suggest because the Schedules are long and contain much of importance. The provisions are described very briefly in the Department's memorandum. In view of the considerable importance of these provisions to large numbers of employees and employers throughout the country, and their families, the Committee has thought it necessary to provide further detail in this report about some of the provisions.

Clause 3

2.  This clause allows the Secretary of State to make regulations outlawing the keeping of "black lists" (lists which contain details of trade union members or others who have taken part in union activities and are compiled for use in recruitment). This is a very significant provision, and no reason has so far been provided why the substance of the prohibitions should not be on the face of the bill but should be left to regulations.

3.  Clearly a prohibition has to be backed with a penalty and the clause allows regulations to create criminal offences. The bill does not specify the maximum penalty for such offences. Regulations may amend enactments, so this is a Henry VIII power. Clause 3(3)(a) allows regulations "to confer jurisdiction (including exclusive jurisdiction) on employment tribunals and on the Employment Appeal Tribunal". The Department has not provided a satisfactory explanation of the likely use of clause 3(3)(a). We assume that "jurisdiction" relates to the use of blacklists and can only be concerned with civil matters - for example, a claim that the claimant was refused employment because his name was on a blacklist. Criminal offences will presumably be tried by magistrates' courts or the Crown Court. The House may wish to ask the Minister for a further explanation.

4.  Regulations are subject to affirmative procedure (clause 33(2)) and the Committee accepts that there is a case for the Henry VIII power to amend enactments.

5.  If the House decides to place the prohibition of blacklists on the face of the bill, then clearly the bill will specify the maximum penalty for this offence. But even if, contrary to our present view, the offences are to be prescribed by regulation, we nonetheless consider that the maximum penalty for an offence against the regulations should be specified on the face of the bill.

Clause 5

6.  This clause inserts section 70B into the Trade Union and Labour Relations (Consolidation) Act 1992. The new section is concerned with the involvement of trade unions in the consideration of an employer's policy on training. Subsection (9) is a Henry VIII power to amend any of subsections (3) to (6) and subsection (10) makes orders subject to affirmative procedure. The memorandum states that the power was needed because "the level of detail was considered more appropriate to secondary legislation" and it would be easier to amend. The Committee does not accept this reasoning: the detail is in the clause unless and until the power is exercised. However, there is a case for flexibility and the Committee considers the power appropriate, subject as it is to affirmative procedure.

Clause 15

7.  This clause allows the Secretary of State to make "regulations about cases where a worker" is subject to detriment or is dismissed because he refuses to enter into a contract which is not consistent with a collective agreement which applies to him. Clause 33(2) applies affirmative procedure. The memorandum states that the power will be used to make it unfair to treat a worker in this way and that the level of detail was more appropriate to secondary legislation. Curiously, however, it then adds that "The Government is considering, however, whether to deal with these matters by primary instead of secondary legislation." The Committee wishes to draw the House's attention to this statement and invites the House to seek from the Minister justification for delegating this power.

Clause 17

8.  The clause requires the Secretary of Sate to make regulations to prevent discrimination against part-time workers. As with clause 3 there is power to confer jurisdiction on tribunals and to create criminal offences. But with clause 17 it is easier to see that there will be need for both civil and criminal proceedings. If a part-time worker is denied a benefit by his employer, he could claim it before an employment tribunal. If he is the victim of an act or omission by an organisation of workers (see subsection (3)(b)), the only sanction may be a prosecution.

9.  The Committee notes that regulations under this clause will be used to implement Council Directive 97/81/EC on part-time work (subsection (4))a) and (b)). We also note that the Department's explanation of their choice of delegated legislation to implement the Directive mentions that the Directive itself does not cover pay, but "the Government believes that pay should be covered at the same time as other employment conditions". The delegated legislation could presumably also be used to apply to other related matters not covered by the Directive. The Committee also notes the two Henry VIII powers (paragraphs (f) and (h) of subsection (3)).

10.  Again clause 33(2) applies affirmative procedure, which the Committee considers appropriate.

11.  The Committee's comments on the power to create offences under clause 3 apply here also and the Committee recommends that the maximum penalty for an offence under the regulations should be specified on the face of the bill.

Clause 18

12.  This clause is concerned with the issue of a code of practice about part-time workers. The Committee was reassured to see that clause 19 imposes a procedure of consultation and Parliamentary consideration with both Houses having the opportunity to reject a draft code, which has to be approved by both Houses before it can be issued.

Clause 20

13.  Subsection (2) allows the Secretary of State to confer by regulations any of the rights listed in subsection (1) on "individuals who are of a specified description." Subsection (3) allows the regulations to confer rights on individuals even though they are "expressly excluded from exercising the rights." Subsection (5) allows regulations to amend Acts. This Henry VIII power is presumably intended to deal with the case where an enactment mentioned in subsection (1) confers a right on some workers but expressly excludes others and the Secretary of State decides to confer that right on some or all of those who are in the excluded group. Clause 33(2) again applies affirmative procedure, which the Committee considers appropriate. The memorandum says that the required amendments are likely to be detailed and technical.

14.  The clause repeals section 209(7) of the Employment Rights Act 1996; that provision is a consolidation of a provision which came from the Employment Protection (Consolidation) Act 1978 and so is even older. Section 209(7) is also subject to affirmative procedure.

Clause 29

15.  This clause provides for the indexation of amounts specified in the enactments listed in subsection (1). The Secretary of State is required to make an order each year when the index has changed. The clause allows him no discretion as to amount. In the circumstances the Committee accepts that there is no need for Parliamentary control, and notes that subsection (6)(c) requires orders to be laid before Parliament.

Clause 30

16.  This clause amends section 31(7) of the Employment Rights Act 1996 by altering the order-making power at present in that provision. The existing power is subject to negative procedure and the clause does not affect that. The amendment raises no point of principle and the Committee sees no need to comment on it.

Schedule 1

17.  This Schedule inserts a new Schedule in the Trade Union and Labour Relations (Consolidation) Act 1992. There are delegated powers in paragraphs 6(6) (a Henry VIII power), 8, 21(6), 25(5) (Henry VIII), 90(8), 94(6) (Henry VIII), 125 (Henry VIII) and 127(1). There is in paragraph 126 a power to issue guidance on the way the Central Arbitration Committee is to exercise its functions under paragraph 19 (ballots about union recognition) - guidance must be laid before each House and published so as to draw it to the attention of those likely to be affected.

18.  These Henry VIII powers are very limited in their scope and are all subject to affirmative procedure. The power in paragraph 8 is also subject to affirmative procedure. The remaining powers are subject to negative procedure. The Committee considers that in each case the appropriate level of parliamentary control is provided.

Schedule 4

19.  This Schedule inserts a number of new sections in the Employment Rights Act 1996 and makes a number of consequential amendments to that and other Acts. The new clauses are about leave for family or domestic reasons, and provide, for the first time in UK law, a basic right to three months' parental leave, and to time off for urgent family reasons. We applaud the honesty of the Department's memorandum, which recognises the significance of these clauses by citing as its first reason for choosing "regulations rather than primary legislation" the fact that "there was no prospect of Parliamentary time for a Leave for Family Reasons Bill, particularly since the Parental Leave Directive must be implemented by December 1999". In our view primary legislation would have been preferable, but we accept that there is also a case for flexibility, which the regulations will provide.

20.  While the sections provide the framework they will not operate without regulations to be made by the Secretary of State. His powers are conferred by new sections 71(1), (2), (3) and (6), 72(2) and (3), 73(2), (3), (6) and (7), 74 (which extends sections 71 and 73), 75 (which supplements sections 71, 72 and 73), 76(1) (note the imperative - "shall" which is repeated in subsections (2) and (3)), (2), (3), (4) and (5), 77(1) ("shall"), (3) and (4), 78(1), to (6), 79, 81(1)(b) and (3), 57A(3) and 57C(1)(b) and (3). Among the consequential amendments there are powers in paragraphs 10 (the new sections 47C of the 1966 Act) and 18 (the new section 99 of that Act).

21.  The amendment made by paragraph 48 of the Schedule has the effect of applying affirmative procedure to these powers with the exception of those under sections 47C and 99 to which section 236(2) of the 1996 Act will apply, so attracting negative procedure.

22.  The memorandum gives an account of how these powers will be used (see paragraphs under the heading "Schedule 4" and Annex B). The Committee accepts the justification for these powers and the level of Parliamentary control provided for them.

Schedule 7

23.  This Schedule amends the Employment Agencies Act 1973. Paragraph 2 amends section 5, a power to make general regulations and paragraph 3 amends section 6(1) (a restriction on taking fees for finding employment) which contains a delegated power. The Committee notes the comment in the Department's memorandum that "during the Third Reading of the Bill in the House of Commons, the Secretary of State indicated that the Government would consider whether to seek an amendment requiring regulations under [section 5 of the 1973 Act] to be subject to the affirmative procedure". This is another instance of the Government's policy concerning the powers in this Bill remaining undecided in certain respects. The House may consider that the Bill should indeed be amended at this point to provide for the affirmative procedure.


24.  Although this bill has passed the House of Commons certain important issues still remain unresolved in relation to some of the delegated powers it contains, several of which deal with particularly sensitive issues. In the case of clause 3(1) and clause 15, the Committee invites the House to question the case for delegated powers. If the House decides to place the prohibition of blacklists on the face of the bill, then clearly the bill will specify the maximum penalty for this offence. But even if, contrary to our present view, the offences are to be prescribed by regulation, the House may wish to consider whether clause 3 should be amended to specify on the face of the bill the maximum penalty for an offence under the regulations. The House may also wish to consider amending clause 17 to specify the maximum penalty for an offence under the regulations which are to be made under that clause. The Committee has also drawn attention to a number of areas where the House may wish to seek clarification from the Minister, and has noted the Henry VIII powers in the bill. There is nothing else in the bill that the Committee wishes to draw to the attention of the House.



25.  This private member's bill contains one delegated power and a simple commencement order power.

26.  Clause 3 adds a new section 88B to the National Parks and Access to the Countryside Act 1949 under which the Secretary of State may, by order, establish a "conservation board" for any area of outstanding natural beauty. The section (and the Schedule set out in the Schedule to the bill) provide the framework and section 110(3) of the 1949 Act attracts negative procedure.


27.  There is nothing in the bill which the Committee wishes to draw to the attention of the House.



28.  These bills contain no delegated legislative powers.


29.  The Committee requests submissions in writing no later than Monday 17 May on the proposal for the draft Deregulation (Casinos) Order 1999, which was laid before the House on 19 April. Copies of the proposal and accompanying explanatory memorandum are available to Peers from the Printed Paper Office.[1]

1  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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