Select Committee on Delegated Powers and Deregulation Thirty-Fifth Report


22 NOVEMBER 2000

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 Committee has already reported six times on this bill and Government amendments to it.[1] We reported on Report Stage amendments in our 32nd and 33rd Reports and did so by reference to the memoranda which the Department had supplied. We commented that we saw nothing in the amendments discussed in the memoranda to which we wished to draw the attention of the House. Unfortunately (and unbeknown to the Minister) an important amendment was left out of the memoranda and so was not covered by our Reports.

2. The omitted amendment introduced a new clause (Vehicular access across common land etc.) into the bill.[2] The purpose of this clause, clause 68 in the revised print of the bill, is, in the words of the Minister at Report stage, "to protect property owners who have been driving across common, or similar, land for many years and who are now faced with having to pay an excessive fee to the landowner for acquiring a legal right to do so."[3] The amendment gives the Secretary of State the power to make regulations, which will contain the details of the scheme, which is expected to be quite complex. The clause makes these regulations subject to the negative resolution procedure.

3. Although the House agreed to the new Clause, it also debated an amendment (No. 196H) which would have ensured that regulations made under the new clause were subject to the affirmative resolution procedure. In response, the Minister said:

    "I do not believe that the Delegated Powers and Deregulation Committee has put forward an explicit view that the negative resolution procedure is incorrect. If the Committee were to say that the affirmative resolution procedure should be used, we would do so. However, I do not believe that the amendment is appropriate until the committee comes to such a conclusion."[4]

The Minister's comments about the views of the Committee arose out of the misapprehension that all the Government amendments for Report had been the subject of reports from the Committee.

4. If we had been asked to comment on the new clause before it was inserted in the bill, we should have recommended that the regulations to be made under it should be subject to affirmative procedure for the reasons which were advanced during the debate. We recognise that successive Governments have taken the view that it is not practicable to lay down precise criteria for determining the choice between the various Parliamentary statutory instrument procedures. There is no finite rule for determining the level of Parliamentary scrutiny of subordinate legislation.[5] Over the eight sessions of the Committee's existence we have, however, consistently taken the view that the more important delegated powers should be made subject to the affirmative resolution procedure. In our view this power comes into this category. The Government have now tabled an amendment for Third Reading to provide for the affirmative procedure. We welcome this.

5. In the light of the human rights implications of this power there would be an additional benefit in making it subject to the affirmative procedure in that the Minister will be obliged to state his or her view that orders made under the powers are compatible with the Convention rights.[6]

1  24th, 26th, 27th, 31st, 32nd and 33rd reports. Back
2  The new Clause was amendment 196 on the marshalled list for Report stage. Back
3  House of Lords Hansard, 16 November 2000, col. 411. Back
4  House of Lords Hansard, 16 November 2000, col. 420. Back
5  See the evidence submitted by the then Government for the first ever report of this Committee, 1st report, session 1992-93, HL Paper 57, page 15. Back
6  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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