Select Committee on Delegated Powers and Deregulation Second Report



58.  The bill implements the main proposals in two White Papers - "Modernising Social Services" (November 1998) and "Building for the Future" (March 1999). Detailed proposals were set out in consultation documents issued earlier this year - "Regulating Private and Voluntary Healthcare", and "The Regulation of Early Years Education and Day Care" and the equivalent documents for Wales.

59.  The bill confers a large number of delegated powers and the Committee considered carefully whether it should be described as a skeleton bill. We concluded that it did not. Large numbers of powers are common in legislation of this kind and the Committee considered that the bill does contain a clear policy framework leaving only the detail (which will need to be changed from time to time) to regulations. The department's memorandum seeks to justify the creation of delegated powers and to explain how they will be used. This report provides a list of the powers, and a commentary on the few provisions which the Committee thought worthy of particular attention.

60.  References in the bill to "prescribed" mean prescribed by regulations made by the Secretary of State or the Welsh Assembly. References to "prescribed" in amendments made by the bill to other enactments have to be construed according to the amended legislation but the result is the same - regulations made by the Secretary of State or the Assembly. Any regulation-making power created by the bill whether directly or by amendment is subject to negative procedure if exercised by the Secretary of State.

List of Delegated Powers

61.  There are delegated powers in clauses 1(4), 2(7), 3(3), 4(5), 9(4), 10(2), 12(1), 13(3), 14, 20, 23, 28(6), 31, 32, 33, 34(3) and (4), 39, 44, 46, 47, 48, 51(3), 52(3) (order), 53 to 67 (rules made by the General Social Care Council or the Care Council for Wales), 69(1) (new sections 79C, 79E(2), 79F(1) and (2), 79H, 79M(5), 79P, 79Q and 79T(4) to (8)), 69(7), 76, 77(2), 83, 87, 91(3) 96(3) and 97 (Commencement), Schedule 1, paragraphs 6, 9, 10 and 13, Schedule 2 (new Schedule 9A, paragraphs 1(1), 4, 6(2) and (4) and 7), Schedule 3, paragraph 2(6) and Schedule 4, paragraphs 1 and 2(1) and (3).

Clause 23

62.  Part I of the bill contains wide powers to make regulations covering the management, staff, premises and conduct of establishments and agencies to which the Part applies. Clause 23(1) supplements those powers by allowing the regulations to create offences. Clause 23(2) provides that such an offence is punishable on summary conviction by a fine not exceeding level 4.

63.  Clause 26 provides that an offence may be prosecuted by the Commission (or by the Secretary of State or the Welsh Assembly exercising default powers) or by some other person acting with the written consent of the Attorney General.

Clause 39

64.  Part II applies to "any person who carries on or manages an establishment or agency of any description" (clause 9(1)) and these terms are explained in clause 4(9) and (10). In short, the Part applies to children's homes, independent hospitals, independent clinics, care homes, residential family centres, domiciliary care agencies, fostering agencies and voluntary adoption agencies. Clause 39 allows regulations to apply (with modifications) Part II to other persons providing services similar to those provided by local authorities in the exercise of social services functions.

Clause 47

65.  This clause allows regulations under Part III to create offences punishable on summary conviction by a fine not exceeding level 4. The limitation on who may prosecute imposed by clause 26 is applied here also by clause 49.

Rules Made by the Council

66.  Clause 50 establishes two new corporate bodies - the General Social Care Council (for England) and the Care Council for Wales. Collectively these are referred to in the bill as "the Council". Clauses 53 to 67 contain numerous powers for the Council to make rules. These regulate the procedure for registering with the Council, removing entries from the register, approving courses in social work, approving qualifications, requiring post registration training, appointing "visitors" to inspect places where courses or examinations are held and specifying fees to be paid to the Council. Clause 67(2) requires the Council to seek the consent of the Secretary of State (or the Assembly) before making any rules. Schedule 1 makes further provision about the Council but does not extend the rule-making powers.

67.  Rules are not statutory instruments and there is no provision for Parliamentary control (but the Secretary of State will be answerable to Parliament for his actions in approving rules and the Assembly will have to approve rules made for Wales by the Care Council for Wales). The bill does not provide for the publication of rules but paragraph 16 of Schedule 1 requires the Council to publish an annual report on the exercise of its functions and this would be one way of publishing rules.

Clause 66

68.  This clause abolishes the Central Council for Education and Training in Social Work (CCETSW). Subsection (2) allows an Order in Council to make a scheme for the disposal of the CCETSW's assets and liabilities. There is no Parliamentary control but the Committee considers this appropriate for such a limited transitional power.

Clause 68

69.  This clause inserts a new Part XA into the Children Act 1989 and a new Schedule 9A which is concerned with child minding and day care for young children. Part XA and Schedule 9A replace for England and Wales the existing Part X of and Schedule 9 to the 1989 Act (clause 68(3)). Both Part XA and Schedule 9A contain delegated powers and the existing provisions of the 1989 Act have the effect that these powers are exercisable by the Secretary of State or the Welsh Assembly and are subject to negative procedure when exercised by the Secretary of State.

Clause 94

70.  This clause makes supplementary provision about orders and regulations made under the bill (where the bill inserts powers into existing Acts, those Acts determine the Parliamentary control applicable and provide any supplementary powers). Subsection (2) applies negative procedure (except to a simple commencement order). Subsections (4) to (6) extend regulation-making powers in a way which is becoming increasingly common.

Clause 95

71.  Subsection (1) allows the Secretary of State and the Assembly to make orders containing "any supplementary, incidental or consequential provision" and "any transitory, transitional or saving provision" considered "necessary or expedient for the purposes of, in consequence of or for giving full effect to any provision" of the bill. An order will be subject to negative procedure if made by the Secretary of State.

72.  Subsection (2) converts the order-making power into a Henry VIII power by extending it to allow the amendment or repeal of "any enactment, instrument or document". The memorandum does not explain[3] why the reference to "document" has been added to a formula which is becoming more common.

73.  The House may wish to consider whether an order under clause 95(2) should attract the affirmative procedure.

Powers to give Directions, Issue Codes etc

74.  The Secretary of State can give directions or guidance to the National Care Standards Commission (clause 6(2)) and may give the Commission directions under paragraphs 3(1), 7(1) and 11(3) of Schedule 1. He may also "determine" various matters in connection with the Commission (paragraphs 7(1), (2) and (3) and 15(1), (2) and (3) of Schedule 1).

75.  The Secretary of State (and the Assembly) may give the Council directions or guidance under clause 50(4) and (5).

76.  The Council is required by clause 58 to prepare and publish "orders of practice laying down standards of conduct and practice expected of social care workers". The Secretary of State (or the Assembly) may direct any local authority to ensure compliance with the code (subsection (5)).

77.  The Committee sees nothing in these provisions which it needs to draw to the attention of the House.


78.  The Committee has suggested that the House may wish to consider amending the bill to make an order under clause 95(2) attract the affirmative procedure.

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

3   Paragraph 146. Back

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