Select Committee on Delegated Powers and Regulatory Reform Second Report



20.  The Committee made an initial Report on this bill in its First Report for 2002-03[2]. In the light of that Report, the Department of Environment, Food and Rural Affairs has submitted a supplementary memorandum to the Committee. This addresses the Committee's two concerns relating to excessive delegation and criminal and civil penalties. The Department acknowledges that this is an unusual bill and gives an explanation for the extent and enabling nature of the bill. The memorandum is printed at Annex X to this Report.


21.  The constitutional position has largely shaped the structure of this bill. In particular, the Committee recognises that the only way of granting the National Assembly for Wales the freedom which it is the Government's policy to grant is to confer wide powers to make subordinate legislation. If the House approves the principle that that Assembly should have the same degree of autonomy here as is accorded in relation to Scotland and Northern Ireland (but for suspension of the Assembly) by the fact that these are not reserved matters, then there really is no other way of proceeding.

22.  This raises the question whether, for England, it is acceptable for the bill to leave so much to delegated legislation. The Committee concludes that the extent of delegation is acceptable in the light of the position under this bill elsewhere in the United Kingdom. But the Committee considers that there must be the opportunity for a debate on the way in which the wide powers conferred by the bill will be used. Accordingly, it considers that the first regulations which apply in relation to England and are made in exercise of the powers conferred by each of clauses 6 (borrowing and banking of landfill allowances) 7 (trading and other transfer of landfill allowances) and 10 (scheme regulations) should be subject to affirmative procedure. It is for consideration whether similar provision should be made for Scotland and Northern Ireland (subject to suspension of the Assembly).

23.  We also consider that the delegation of such wide powers to allocating authorities is appropriate only if accompanied by an express statutory obligation to consult those representing the disposal authorities, landfill operators and others affected by proposed regulations.


24.  The Department says it is considering further the question of maximum penalties for offences created under clause 6 and clause 7, and mentions the levels set out in Schedule 2 to the European Communities Act 1972. We would find the delegation to create offences acceptable if those levels were to be applied.

25.  In its supplementary memorandum, the Department explains why no maximum penalty is set in the bill for regulations under clause 25 and in relation to clause 31. We accept the reasons given by the Department. In the absence of a maximum, the express consultation requirement mentioned at paragraph 23 would provide some safeguards against inappropriate levels of penalty.


26.  With the exceptions discussed above we find the delegations contained in the bill and the level of Parliamentary scrutiny appropriate.

2  . HL Paper 9, Session 2002-03. Back

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