Select Committee on Delegated Powers and Regulatory Reform Second Report



1.  This bill covers a number of subjects:

  • mutual assistance in criminal matters;
  • terrorist acts: extra-territorial jurisdiction;
  • recognition of other countries' driving disqualifications;
  • implementation of various provisions of the Schengen Convention (police co-operation, extradition and data protection);
  • facilitating the EU Framework Decision on non-cash means of payment.

These topics are summarised at paragraphs 14 to 19 of the Explanatory Notes printed with the bill.

2.  This report deals with the Henry VIII provisions in the bill and other provisions which the Committee wishes to draw to the attention of the House.


3.  There are Henry VIII powers in clauses 58(7), 60(4), 64(2), 65(2) and 91.

4.  Clauses 58(7), 60(4), 64(2), 65(2) are limited to postponing the start of the period during which a person is disqualified from driving in the United Kingdom because of a foreign disqualification; and to specifying a longer period for production of a driving licence. Both the delegation and the level of scrutiny (regulations subject to negative procedure) seem appropriate.

5.  Clause 91 enables the Secretary of State or the Scottish Ministers, by order, to make

  • any supplementary, incidental or consequential provision;
  • any transitory, transitional or saving provision,

considered necessary or expedient for the purposes of, or in consequence of, or for giving full effect to any provision of the bill. By clause 91(3) amending or repealing provisions of Acts is permitted. An example of the possible use of this power is given at paragraph 34 of the Home Office's Memorandum to the Committee. While we consider that negative procedure is sufficient for amendments to secondary legislation, we recommend that affirmative procedure should apply to amendments to Acts of Parliament because of the importance of the subject-matter of the bill.


Participating Countries

6.  Clause 52(2)(b) allows the Secretary of State, by order subject to negative procedure, to designate any country as a "participating country" for the purposes of Part 1 of the Bill. That country would then be treated in the same way as member states of the European Union for the purposes of the provisions of the bill about service of process (clauses 4 and 6), freezing orders (clauses 10 to 12 and 20 to 25), hearing witnesses by telephone (clause 31) and obtaining information about bank accounts (Chapter 4 of Part I). The Department explains in their Memorandum the need for this provision. However, we draw to the attention of the House the fact that the power is not expressly limited, in the case of service of process and obtaining information about bank accounts, to countries that participate in the Mutual Legal Assistance Convention or Protocol or, in the case of freezing orders, to countries that become member states of the European Union at some time in the future. So, as it stands, any country could in theory be designated using this provision. Unless the Government brings forward an amendment which would restrict the scope of this power, we recommend that it should be subject to affirmative procedure.

Clause 27

7.  In clause 27, the Treasury is given power by order to provide that functions conferred on the Secretary of State may be exercisable by the Commissioner of Customs and Excise. The Department's memorandum does not explain why this power is exercisable by the Treasury rather than by the Secretary of State. There may be reasons for this, and the Committee considers that the Government should provide an explanation for this form of delegation.


8.  With the exceptions discussed in paragraphs 5-7 above the powers in the bill are appropriately delegated and subject to an appropriate degree of Parliamentary control.

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