Select Committee on Delegated Powers and Regulatory Reform Third Report

Letter from the First Parliamentary Counsel to the Legal Adviser


15.  Thank you for your letter of 28 November, which I have now considered with some of my colleagues here and with other interested parties. The content of legislation is decided by ministers, and it is worth remembering that I can give only the draftsman's perspective.

You ask whether (and when) provisions of the kind you mention are acceptable. They have been included in legislation for many years. They are typically included in Bills which make significant changes to existing complex bodies of law. They are typically included because it is not possible to guarantee that the provisions of the Bill itself are complete or because (at the time of enactment) it is difficult to predict the precise transitional and other arrangements that will be needed. They generally confer power to deal with matters on which Parliament would not expect to be burdened with further primary legislation, though Parliament's ability to scrutinise the provisions made under the power concerned is not removed. While at first sight provisions of the kind you mention may seem of very wide scope, they will have to be interpreted with regard to the context of the Act in which they appear.

Assuming that ministers decide that a provision of the kind you mention is merited, you ask why different ones are drafted in different ways. I can deal with substance and then with style.

As for substance, the draftsman will seek to produce a provision that is apt for the Bill concerned. A number of different elements will need to be considered. At one extreme he may be pretty sure that only consequential provisions will be needed. But things are rarely so clear. So he will ask himself whether incidental or supplementary provisions might be needed, and whether transitional, transitory or saving provisions might be needed. Some of these elements overlap to some extent, but there are aspects of any given element that are not covered by the others. Depending on the circumstances, he may decide to include some or all of them.

The draftsman will also consider whether a power to amend primary legislation should be included. He will even consider whether there should be power to amend the very Act that confers the power. This last may arise, for instance, if an Act gives effect to a treaty which may itself be subject to future modification.

Once the whole range of elements has been considered, the power that emerges will be designed to fit the circumstances of the particular case. That is why different powers will emerge in different cases.

But there is also an element of judgment. On the one hand, the draftsman will not want to include a power to do something which he knows will not arise. On the other hand, when the Bill is being drafted it is often unclear precisely what powers might be needed after enactment; having weighed the risk, the draftsman may think it wise to include a particular element.

Taking all this into account, I think it will be clear why different powers are conferred in different cases. I think this exercise also neatly illustrates the proposition that legislative drafting is more an art than a science.

You also ask whether a standard form could be adopted for provisions of this kind, in which case departures would have to be justified. It follows from what I say above that any standard form would have to be drafted in the widest possible terms. It would have to allow for any reasonably foreseeable use of a power of this kind, having regard to all future Bills (so far as it is possible to make any prediction). I am not sure that the Committee would welcome this.

I said that I would deal with differences of style. The draftsman will want to ensure that his provision is drafted in a way that fits with the style of the rest of the Bill. And the style of Bills differs from draftsman to draftsman just as the style of many documents differs from writer to writer. So there are likely to be differences as between provisions of the same sort but found in different Bills.

Finally, you mention the level of Parliamentary control - that is, whether the negative or the affirmative procedure is appropriate. The question is one of policy for ministers. They always take the views of your Committee very seriously. And (as with all legislation) the final decision rests with Parliament.

9 December 2002

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