Select Committee on Delegated Powers and Deregulation Twenty-Third Report


12 July 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. The foreword to the green paper Local Leadership, Local Choice[1] states that the Government will be introducing, when time allows, legislation so that new forms of local governance, including directly elected mayors, can be adopted. The draft bill is printed as part of that paper as are the explanatory notes.

2. A Joint Committee of both Houses has been set up under the Chairmanship of Lord Bowness to undertake the pre-legislative scrutiny of this draft bill. We welcome the invitation of that Committee to report on the delegated powers in the draft bill. As the departmental memorandum on the delegated powers will only be prepared after the bill has received its first reading in the House of Lords, the Committee lists in this report all those powers but discusses only those which, in our view, might raise issues for the pre-legislative scrutiny Committee to consider.[2]

3. There are delegated powers in clauses 2(5) and (8), 3(1) and (3), 7(5), 14(1) and (5), 15, 18, 21, 22(3) and (4), 23, 25(1), 26(1), 30(4), 38(5)(b), 40(2), 42(1) and 46(3). With the exception of the power conferred by clause 21 on the Secretary of State, all these powers are exercisable for England and Wales by the Secretary of State and for Wales by the Assembly (this is achieved by clause 45(1)(a) and clauses 25(2), 26(2), 30(5), 38(6)(b), 40(3), 42(2) and 46(4)).

4. Where the Secretary of State exercises a power the Parliamentary control is provided by clause 44(4) to (6). Regulations under clauses 2(5), 21 and 23 and orders under clause 25 are subject to affirmative procedure; all other instruments (other than a commencement order) made by him are subject to negative procedure.


5. Clause 2(8) allows regulations to amend subsection (7)(a). Subsection (7) places an upper limit on the size of the local authority executive whether it consists of an elected mayor and councillors appointed by him (subsection (2)) or a councillor as leader together with councillors appointed by him or the full council (subsection (2)). The number must not exceed 10 members or 15 per cent of the total number of councillors. Subsection (8) allows another number to be substituted for 10. This is a very limited power and the Committee accepts that negative procedure is appropriate.

6. Clause 14(5) allows the Secretary of State to amend subsection (1)(a) by regulations subject to negative procedure. This enables him to alter the percentage of the electorate needed for a petition for a local referendum. Again this is a limited power although a substantial increase in the percentage could nullify the referendum procedure. On balance, however, the Committee accepts that negative procedure is appropriate.

7. Clause 21(3)(c) allows regulations making provision as to the conduct of elections for the return of elected mayors to amend legislation relating to the registration of parliamentary or local government electors. Delegated powers to establish procedures for elections are common as is provision for amending relevant existing legislation. The Committee accepts that this is an appropriate power and that affirmative procedure is appropriate.

8. Clause 23 is a general power to modify enactments "to give full effect to any provision" of Part I of the bill. Subsection (2)(c) allows the repeal (or revocation) of enactments. The Committee accepts that a consequential power of this kind is appropriate and considers that affirmative procedure is certainly appropriate.

9. Clause 44(3)(c) extends subsection (2)(b) to allow repealing or revoking enactments. Clause 44(2) applies to all powers in the bill and paragraph (a) allows incidental, supplemental, consequential or transitional provision to be made while paragraph (b) allows "modifications of enactments (whenever passed or made) which are no more than necessary to give full effect to any provision of the order or regulations". The Parliamentary control will be that applicable to the power under which the orders or regulations are made - and the majority of powers in the bill are subject to negative procedure. It is arguable that where primary legislation is repealed the Parliamentary control should be affirmative but the Committee considers that the power to repeal is so limited that negative procedure is appropriate where that is provided for the primary delegated power.


10. In addition to clauses 2(5), 21 and 23 discussed above there is a power subject to affirmative procedure in clause 25. That clause allows the Secretary of State by order to specify the principles which are to govern the conduct of members of relevant authorities in England (the clause makes similar provision for the Assembly to make an order for Wales). Subsection (3) provides for consultation. It is clear that affirmative procedure is appropriate for this important power.


11. Clause 16 requires local authorities to have regard to guidance issued by the Secretary of State. Guidance is in writing (subsection (4)(a)) but is not a statutory instrument. While guidance is clearly important the Committee accepts that it is not necessary to formalise it further or to provide for some form of Parliamentary control.


12. Clause 26 provides for the issue of a model code as regards the conduct of members of local authorities. Consultation is required by subsection (4) but before this stage the Secretary of State may invite "such representative of local government in England as he considers appropriate" to propose a code (subsection (6)). The code is issued by order subject to negative procedure. There are corresponding arrangements for Wales. There is nothing here which the Committee considers inappropriate.

13. Clause 42 provides for another code of conduct, this time for "qualifying employees of local authorities". There is provision for consultation in subsection (3) and again the code is issued by order subject to negative procedure, which the Committee considers appropriate.


14. There are no delegated powers in the draft bill which the Committee would need to draw to the attention of the House if the bill were introduced in its present form.[3]

1  Cm 4298, March 1999. Back
2  Our terms of reference restrict us to considering the delegated powers in the draft bill, rather than the bill in its entirety. Back
3  This report is also published on the Internet at the House of Lords Select Committee Home Page (, where further information about the work of the Committee is also available. Back

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