Select Committee on Delegated Powers and Regulatory Reform Fourteenth Report


19 MARCH 2003

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 and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments.[1]




1.  This bill confers functions on the Office of Communications (OFCOM), and makes extensive provision about electronic communications networks, about the regulation of broadcasting and of the provision of radio and TV services, about newspaper mergers and about various other related matters.

2.  During the last Session, the Committee considered this bill as part of a pre-legislative scrutiny, though the bill has since grown from 302 to 572 pages. A copy of the Committee's memorandum to the Joint Committee on the Draft Communications Bill is printed in Annex 6 to the Report of the Joint Committee.[2]

3.  The Department for Culture, Media and Sport and the Department of Trade and Industry have provided a joint memorandum for the Committee which explains the delegated powers and lists them in a table (Annex A to the memorandum). Annex B to the memorandum includes a list of those delegated powers which have been added to the bill since the Committee saw the earlier draft. The memorandum is printed in Annex 1 to this Report.


4.  The Government responded positively to almost all the points made by the Committee in its memorandum to the Joint Committee. In this Report we consider those Henry VIII powers which are included in the bill which is now before the House but which were not included in the draft bill and some other new powers to which the Committee wishes to draw the attention of the House

New Henry VIII powers

5.  We have considered the powers in the following provisions:

clause 18(1)

clause 26(4)

clause 201(8)*

clause 206(10)*

clause 271(2)*

clause 277(1)

clause 340(5)

clause 343(3)

clause 354(7)

clause 369(3)

clause 371(3)

clause 399(2), (3) and (4)*

clause 400(1)

paragraphs 6 and 10 of Schedule 14.

(The list does not include new powers to vary maximum penalties which are dealt with at paragraph 8 below.)

6.  These powers are subject to affirmative procedure, except for the powers marked with an asterisk, which are subject to negative procedure only. Clauses 201(8) and 206(10) are narrow powers of limited significance and the Committee takes the view that the negative procedure in these circumstances is appropriate. Clause 399(2) is a Henry VIII power to make consequential provision. It is limited to modifications corresponding to the amendments set out in Schedule 17. Clause 399(3) is also limited - to substituting references for definitions etc.; and clause 399(4) is limited to Scottish and Northern Ireland enactments and to local enactments, and extends to consequential modifications only (not incidental or supplemental provision). The negative procedure provided for in each case is, in the Committee's view, justified.

7.  The power in clause 271(2) is significant. Clause 271 sets out the list of "must-provide" services for the purposes of clause 270. Clause 271(2) provides that the Secretary of State may by order amend the list of "must-provide" services. We note that a similar power exists in respect of the power of the Secretary of State to vary the list of "must-carry" services under clause 61(9). During pre-legislative scrutiny, the Committee took the view that that power (in relation to "must-carry" services) should either be circumscribed by including criteria for its use on the face of the bill or it should be subject to affirmative procedure. The criteria are now included in the bill at clause 61(10) and we welcome this amendment. We recommend that similar provision should be made in respect of the power delegated under clause 271(2), and that either the criteria for its use should be specified in the bill or the level of scrutiny should be changed to affirmative procedure.

8.  There were originally six Henry VIII powers to vary maximum civil penalties and during pre-legislative scrutiny the Committee recommended affirmative procedure rather than the negative procedure provided for. All the relevant powers are now subject to affirmative procedure (the powers are now at clauses 34(10), 109(10), 113(8), 120(4), 127(9), 136(9), 173(3), 195(6), 234(9), 235(7), 334(6), paragraph 13 of Schedule 10 and paragraphs 9, 16 and 22 of Schedule 13) and we welcome this amendment to the bill.

9.  Paragraphs 6 and 10 of Schedule 14 enable the Secretary of State to make any alterations to the media ownership rules for Channel 3 services and radio multiplex services. We note that neither the memorandum to the Committee nor the Explanatory Notes to the bill explain the need for this power and we suggest, therefore, that the House may wish to invite the Government to provide an explanation.


10.  Under clause 118 OFCOM may approve a code drawn up by any suitable person or body. The code is relevant to conditions set for premium rate services under clause 117(3)(a). There is no requirement for Parliamentary approval of the code. But if there is no code which OFCOM can approve, requirements about premium rate services can be imposed by order made by OFCOM under clause 119, subject to negative procedure (clause 119(7)). Conditions are then set for premium rate services under clause 117(3)(b) in accordance with the order. Whilst we recognise that the bill delegates a number of powers to OFCOM which are not subject to any Parliamentary procedure, we draw to the attention of the House that Parliamentary scrutiny applies only when OFCOM itself makes the relevant provision.

11.  Clause 131(6) enables OFCOM by order to provide for exemption from the provisions of clause 131 which modify the effect of certain restrictions in leases. The order is subject to no Parliamentary procedure, but the current equivalent power of the Secretary of State (section 96(4) of the Telecommunications Act 1984, which is repealed by the bill) is subject to negative procedure. In the absence of reasons as to why OFCOM's power should not similarly be subject to negative procedure, we suggest that the House may wish to invite the Government to provide an explanation.

12.  Clause 1(7) applies Part 2 of the Deregulation and Contracting Out Act 1994 to OFCOM. Under that Act, an order (subject to affirmative procedure) may be made permitting the contracting out of statutory functions, but this is a specific exclusion for functions consisting of powers or duties to make subordinate legislation. Clause 1(7)(b) modifies that exclusion, so that an order could be made permitting the contracting out of OFCOM's powers to make subordinate legislation, unless those powers are exercisable by statutory instrument (i.e. unless clause 396 applies). No explanation for this modification is given and, again, the House may wish to invite the Government to provide one.


13.  We draw to the attention of the House the recommendation in paragraph 7 above, the suggestions for further explanation made in paragraphs 9, 11 and 12 and the comment made in paragraph 10. There are no further matters in relation to the delegated powers in this bill on which we wish to report to the House.

1   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

2   HL Paper 169-I, HC 876-I, Session 2001-02. Back

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