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. 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.
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
clause 399(2), (3) and (4)*
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
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
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
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 (http://www.parliament.uk),
where further information about the work of the Committee is also
HL Paper 169-I, HC 876-I, Session 2001-02. Back