Select Committee on Delegated Powers and Deregulation Third Report


19 January 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.  This Private Member's bill seeks to establish the Private Healthcare regulatory Authority for England and Wales with the task of seeking to ensure that healthcare services in the private sector are performed to standards at least as high as the equivalent service provided by the NHS. To this end the Authority is to license premises, prepare codes of practice, maintain a register of licensed premises and to arrange the inspection of licensed premises.

2.  The Committee does not always receive explanatory memoranda from the Government on the powers proposed by Private Member's Bills, and did not do so in this instance.


3.  The term "specified" used in subsections (1), (4), (6) and (7) means specified in regulations made by the Secretary of State (subsection (15)) and regulations are made subject to negative procedure by subsection (16). This is not in itself surprising, but the Committee was concerned to see that the power to fix the fee to be paid by an applicant for a licence is not subject to Parliamentary control but is simply left for the Secretary of State to determine (subsection (2)). "Specified" in subsection (10) means specified in the code of practice made by the Authority (see note on clause 9 below).

4.  The Committee considers that the power in clause 6(2) to determine the fee to accompany an application for a licence for premises is a legislative power which should be exercised by making regulations subject to negative procedure. The House may wish to consider amending the bill accordingly.


5.  Subsection (1) allows the Secretary of State to direct the Authority to include a condition imposing requirements about patient care in any licence to admit patients to specified premises. The directions are given by order subject to negative procedure (subsection (5)).


6.  This clause requires the Authority to issue codes of practice giving practical guidance on standards as to treatment and dealing with complaints. The clause provides an elaborate procedure for issuing codes which involves consultation (subsection (3)) and Parliamentary control (subsection (4). A draft has to be approved by the Secretary of State and laid by him before Parliament and either House can resolve not to approve the draft. Once approved the draft is brought into force by an order of the Secretary of State (subsection (6)(a)) and, as Parliament has already had the opportunity to consider the draft, it is appropriate that there is no Parliamentary control over the order.


7.  There is a simple commencement power in clause 19(2).

8.  There are a number of provisions which allow the Secretary of State to make determinations or give directions. With the exception of clause 6(2), discussed earlier, these raised no issues which the Committee wished to draw to the attention of the House.


9.  The Committee has suggested that the power in clause 6(2) to determine the fee to accompany an application for a licence for premises is a legislative power which should be exercised by making regulations subject to negative procedure. There is nothing else in the bill which the Committee wishes to draw to the attention of the House.



10.  The bill is concerned with education and training for those over the age of 16. It contains a number of delegated powers which are discussed at length in the department's very full memorandum, which is printed with this report. The comprehensive nature of the department's memorandum and its sensitive appreciation and application of the criteria to govern the control of delegated legislation has enabled this report to be shorter than might otherwise have been the case.

11.   Although the bill contains a large number of powers, they are what is to be expected in a bill of this kind. As always, however, the Committee considered carefully whether the appropriate level of Parliamentary control was provided for each of these powers. On this the memorandum comments that the intention was that new powers given by the bill to the Secretary of State should be subject to negative procedure but that clause 114 does not entirely achieve this and that amendments would be introduced as soon as possible.


12.  These are in clauses 18(4), 50(1)(e), 55(3), 57(d), 61(3), 64(5), 68, 71(1)(e), 73(2), (4) and (9), 76(3), 89(1)(c) and (2)(c), 92(2), 93(2), 94, 96(1), 109(2) and (5), 112(2)(b), (4) and (5), 114 (supplementary provisions about powers conferred by bill) and 116(1) and (2) (commencement) and Schedules 7 (paragraphs 13, 14, 15, 17, 18, 19, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32(3), (4) and (5), 33(2)(a), and (3)(b), 34(4), 37, 38 and 39(4)) and 8 (paragraphs 2, 6, 7, 10 and 26).


13.  At present clause 114 subjects to negative procedure the powers in clauses 18(4), 89(1)(c), 93 and 94. The memorandum states that it is intended to amend clause 114 to apply negative procedure also to clauses 50, 55, 57, 61, 64, 68 and the powers of the Secretary of State under Schedule 7. The remaining powers are either conferred on the Welsh Assembly (for example clauses 71, 73 and 76) or are conferred by way of amendment to existing legislation which already contains provisions about Parliamentary control (but see also the comments on clause 112(4) below).


14.  Clause 92 amends the Education Act 1997 and the reference to "prescribed" in the new section 24(2)(gg) means prescribed by regulation and these are subject to negative procedure.

15.  Clause 96 amends the Further and Higher Education Act 1992 and an order under the new section 16(3) would be subject to negative procedure.

16.  Clause 109 amends the Teaching and Higher Education Act 1998 and the reference to "prescribed" in the new section 19(1)(c) means prescribed by regulations and these are subject to negative procedure.

17.  Clause 112 makes further amendments to the Further and Higher Education Act 1992. The power in the new section 30(2)(b) to specify by order institutions to which the section is to extend attracts negative procedure. The memorandum says that this is unintended and that an amendment to remove Parliamentary control will be tabled because there is no need to trouble Parliament with instruments naming particular institutions. The memorandum also argues that there is no case for Parliamentary control over the power in subsection (4) of clause 112 as any order will be concerned with the constitution of a particular governing body of an institution. The bill does not provide for Parliamentary control over this power and we accept that that is appropriate.

18.  In Schedule 8 the powers under paragraphs 2 and 26 are subject to negative procedure but the powers under paragraphs 6 and 10 are not subject to Parliamentary control. The memorandum argues that the first of these powers is needed to enable spent instruments to be revoked and the second deals with ad hoc arrangements for particular institutions and that neither justifies troubling Parliament. The Committee finds these arguments convincing.


19.  The Committee has drawn attention to the promised amendments, which in our view are necessary in order to provide an appropriate level of parliamentary control for the powers concerned. Apart from these there is nothing in the bill which the Committee wishes to draw to the attention of the House.


20.  This bill contains no delegated legislative powers.


21.  The Committee has reported on this bill (2nd Report) but in that Report commented that the Government had informed the Committee that there would be Government committee stage amendments which would affect the delegated powers in the bill. The Committee reserved its position in relation to those amendments. The Government has to date tabled 140 amendments and the department has provided the Committee with a memorandum identifying those amendments which are relevant to the Committee's work and giving a justification for each. The Committee is grateful for this assistance as it has enabled the Committee to report quickly so that the House can consider the issues before Committee stage, which begins next week.

22.  The Committee draws the attention of the House to the three amendments discussed below. Apart from these there are no amendments to which the Committee thinks it necessary to draw the House's attention.

23.  The new clause proposed to be inserted after clause 15 provides for regulations to deal with public access to minutes, papers, background papers, records of decisions etc of the executive, its committees and individual members. The aim is to make provision similar to the public access provisions in the Local Government Act 1972. The power includes power to create offences of denying public access. The Committee draws the attention of the House to the absence of any provision in the bill about the method of trial or the penalty for such an offence. The House may wish to consider whether the bill should be amended to include such provision or whether the power should be made subject to affirmative procedure to give Parliament appropriate control over penalties.

24.  The amendments propose the insertion of two new clauses after clause 21. The first of these enables the Secretary of State to make regulations to provide alternative arrangements for the discharge of a local authority's functions. The department's memorandum says that the power would be needed only in the event of a referendum rejecting a proposal for a directly elected mayor and the fall-back not being a form of executive arrangement. Had there been time[1] the Committee would have sought a fuller explanation of the need for this power and so invites the House to press for such an explanation when the amendment is debated.

25.  One of the effects of the amendments to clause 22 is to alter the requirement for a petition requiring a referendum under the bill from:-

    (a)  signature by not less than 5 per cent. of the electorate, to

    (b)  signature by not less than a prescribed number of electors.

  The number that can be prescribed must not exceed 5 per cent. of the electorate but there is no lower limit. The House may wish to consider carefully this open-ended power.


26.  The Committee requests submissions in writing no later than Monday 21 February on the proposal for the draft Deregulation (Sunday Dancing and Licensing) Order 2000, which was laid before the House on 17 January. Copies of the proposal and accompanying explanatory memorandum are available to Peers from the Printed Paper Office.[2]

1   Which there was not, since the Committee only received the amendments on 17 January, for consideration on 19 January. Back

2   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

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries

© Parliamentary copyright 2000