First Report
Disabled Persons (Independent Living)
Bill [HL]
1. This private member's bill is similar to a
bill of the same title introduced in the previous two sessions[1].
There are delegated powers to make orders or regulations at clauses
3 (definition of "disabled person"), 6(6) and (7), 8(3)(g),
(4)(d), (6) and (7), 10(6) and (7), 13(8), 14(5) and (7)(b), 15(1)
and (6), 16(1)(a), (2) and (8), 17(4), 19(1), (2)(a), (3) and
(5), 21(2), 23(3) and (5), 25 and 38. There are also amendments
at clauses 26(7), 29(2) and (3) and 33 which affect existing delegated
powers. There is nothing in any of the delegations which we wish
to draw to the attention of the House.
Dormant Bank and Building Society Accounts
Bill [hl]
2. This bill makes provision about using money
from dormant bank and building society accounts for social or
environmental purposes. HM Treasury has provided a memorandum,
printed at Appendix 1, explaining all the delegated powers in
the bill.
Smaller institutions assets limit — clause
3(4)
3. The bill contains special provision for smaller
banks and building societies. Instead of transferring the whole
balance of a dormant account to a reclaim fund, a smaller bank
or building society may opt to transfer only part of it, the remainder
being transferred to one or more charities. (The general scheme
of the bill is explained at paragraphs 5 to 13 of the memorandum
and paragraph 8 deals with the provision for the smaller banks
and building societies.)
4. The bill defines a smaller bank or building
society by reference to an assets limit of £7,000 million
(clauses 2(4)(b) and 3), but the Treasury is given power by clause
3(4) to amend that limit (up or down) by order subject to negative
procedure only, even though the order would amend an Act. We consider
that the memorandum (paragraph 15) has made out a sufficient case
for this power and we do not consider it, or the level of scrutiny,
inappropriate.
Directions to the Big Lottery Fund — clause
21
5. Clause 21 requires the Big Lottery Fund to
comply with any directions given to it by the Secretary of State.
The directions may cover substantial and significant matters,
some of which are close to being of a legislative character, and
are not subject to parliamentary scrutiny or control. Were it
not for the fact that this arrangements models the provision in
the National Lottery etc. Act 1993, we would have recommended
that some of these directions, such as those under clause 21(3)(b),
specifying purposes for which the Fund may or may not distribute
money, be contained in a statutory instrument subject to negative
resolution.
House of Lords Bill [HL]
6. This private member's bill makes provision
to establish a Commission to make recommendations for the creation
of life peerages. The main criteria for recommendation are set
out in clause 5(3), and the intention of the bill is that additional
criteria may be proposed (and applied) by the Commission. Proposed
criteria are to be subject to negative procedure (clause 5(5)).
We consider that the affirmative procedure would be more appropriate
for the approval of these criteria. This could be achieved by,
for example, requiring a Minister to lay a draft order containing
the proposed criteria before both Houses.
Human Fertilisation and Embryology Bill
[HL]
7. This bill derives from the draft Human Tissue
and Embryos Bill which was considered by a pre-legislative scrutiny
Joint Committee last session. At the request of the Joint Committee,
we provided them with a memorandum on the proposed delegations
in the draft bill[2]. The
Department of Health has provided a memorandum on the delegated
powers in the bill, printed at Appendix 2.
8. Some of the powers in the bill were not contained
in the draft bill.
"Embryo", "eggs", "sperm",
"gametes" — clause 1
9. Section 1 of the 1990 Act defines "embryo",
"eggs", "sperm" and "gametes". These
expressions are central to the Act: for example, the basic prohibitions
in sections 3 and 4 are framed in terms of embryos or gametes,
e.g. the prohibition on keeping or using an embryo without a licence.
Clause 1(1) to (4) of the bill amends the definitions. In addition,
clause 1(5) gives a Henry VIII power to the Secretary of State,
by regulations subject to affirmative procedure, to expand (but
not contract) the definitions. This, and the associated restrictions
on the power, are explained at paragraphs 18 to 22 of the memorandum.
The power is the same as that at clause 14(5) of the draft bill.
10. The use of an affirmative procedure order
to bring additional matters within the scope of an Act is well
established. Since the power in this case may be used only in
the light of developments in science or medicine, and cannot be
used to apply the Act to items which could not reasonably be described
as embryos, eggs, sperm or gametes, we do not consider the approach
inappropriate and the Joint Committee agreed[3].
Permitted eggs and embryos — clause 3
11. Section 3(2) of the 1990 Act (as amended
by clause 3(2) of the bill) prohibits placing in a woman an embryo
other than a permitted embryo, and gametes other than permitted
eggs or permitted sperm. Permitted embryos, eggs and sperm are
defined in new section 3ZA, inserted by clause 3(5). New section
3ZA(5) enables the Secretary of State (by regulations subject
to affirmative procedure) to provide that "permitted egg"
and "permitted embryo" can include an egg or embryo
which has undergone a process to prevent transmission of serious
mitochondrial disease. Paragraph 25 of the memorandum explains
that the resulting eggs or embryos would have a genetic contribution
from 3 individuals.
12. As a delegation, the power is well circumscribed
with a clear principle. The extension might have serious and complicated
knock-on effects (see clause 26 and paragraph 19 below), but the
extent of the extension is apparent from the bill itself and can
be debated and amended in the course of the bill's passage. As
a matter of pure delegation, we do not consider this inappropriate
and neither did the Joint Committee[4].
Inter-species embryos, etc.— clause 4(2)
13. The Human Fertilisation and Embryology Act
1990 is mainly about human embryos, eggs and sperm. Clause 4 inserts
into the 1990 Act prohibitions in connection with genetic material
not of human origin. In particular, new section 4A(1)(b) prohibits
placing an inter-species embryo in a woman; and new section 4A(2)(b)
prohibits bringing about the creation of an inter-species embryo
without a licence.
14. The draft bill included a comprehensive definition
of "inter-species embryo" but this bill contains two
powers (each subject to affirmative procedure) which enable the
definition to be altered by subordinate legislation.
15. The first power is at new section 4A(5)(e).
Section 4A(5)(a) to (d) set out descriptions of embryos which
are inter-species embryos for the purposes of the bill. But new
section 4A(5)(e) enables regulations to add to the list i.e. to
bring other embryos within the controls of the bill. This approach
was advocated by some at the draft bill stage, but was expressly
rejected by the Joint Committee[5].
The power would allow things to be brought within regulation which
would not otherwise be regulated by the bill. Any things brought
within regulation in this way could be taken out again, but the
regulations could not remove from the scope of the bill, or alter,
the items which are specified in section 4A(5)(a) to (d). As a
result, we ourselves do not consider this power to be inappropriate.
16. The second power, in new section 4A(7), enables
the Secretary of State by regulations to make "any amendment
of the definition of inter-species embryo in subsection (5)"
of section 4A. It is far wider than the power conferred by section
4A(5)(e) and would appear to make it redundant. In particular,
it would enable any of the categories in section 4A(5)(a) to (d)
to be removed, not just altered. We consider that so wide a
power in so sensitive an area is inappropriate and should be removed
from the bill. A narrower power, subject to criteria and limitations
set out in the bill itself (if it proved possible to draft such
provision), might be appropriate and we would hope to report to
the House on any such Government amendment if tabled in good time.
Procedure for refusal, etc. of licence and reconsideration
— clauses 19 and 21
17. In connection with the draft bill, we drew
attention to the proposed regulatory model whereby the proposed
regulatory authority was to have decided its own procedure[6].
(The draft bill proposed that the authority be the Regulatory
Authority for Tissue and Embryos but, under this bill, the regulatory
functions remain with the Human Fertilisation and Embryology Authority.)
The bill differs from the draft bill in that the procedure on
reconsideration (including provision for the membership of the
appeals committee) is a matter for regulations by the Secretary
of State subject to negative procedure, whereas the draft bill
itself prescribed membership of the appeals committee but left
the authority to decide its own procedure, by regulations subject
to no Parliamentary procedure.
18. Other procedures for licensing decisions
are (as with the draft bill) left to the authority itself to determine
(by regulations which are a statutory instrument but are not subject
to Parliamentary procedure), but there are certain minimum requirements
about notice, etc. in the bill itself (substituted sections 19
and 19A of the 1990 Act - clause 19). We consider the powers
to be appropriately delegated save that the power at clause 19B(3),
to require persons (not just the applicant) to give evidence or
to produce documents, should be exercised by the Secretary of
State and subject to the negative procedure.
Mitochondrial donation — clause 26
19. Clause 26 is explained at paragraphs 69 to
71 of the memorandum and paragraphs 155-56 of the Explanatory
Notes. The clause inserts a new section 35A into the 1990 Act
which enables the Secretary of State, by regulations subject to
affirmative procedure, to modify sections 31 and 31ZA to 31ZE
of, and Schedule 3 to, the 1990 Act, and section 54 of the bill
itself, when an egg or embryo has been created from material provided
by two women. The power applies only in relation to eggs or embryos
permitted by regulations under section 3ZA(5) (i.e. eggs or embryos
which have been subjected to a process to prevent the transmission
of serious mitochondrial disease).
20. In connection with the draft bill, we questioned
why the modifications could not be set out in the bill, even if
they only took effect in relation to eggs or embryos which were
the subject of regulations under section 3ZA(5)[7].
The department have addressed this at paragraph 71 of their memorandum
by saying that the time at which to decide which, if any, of the
specified provisions should be modified, and how, is the time
of making the regulations under section 3ZA(5). We consider that
the affirmative power at clause 26 is sufficiently narrow in its
scope not to be inappropriate.
Embryo testing and sex selection — Schedule
2, paragraph 3
21. Schedule 2, paragraph 3 is explained at paragraphs
33 to 37 of the memorandum. The power is to amend paragraph 1ZA
of Schedule 2 to the 1990 Act, i.e. to add to, remove or alter
any of the purposes for which embryo testing may be licensed.
Paragraph 37 of the memorandum indicates that the likely use of
this power is to add to the list. But paragraph 1ZC(3) enshrines
in the bill itself the principle that embryo testing to establish
sex and other practices designed to secure that any resulting
child is of a particular sex are permissible only on grounds relating
to the health of the resulting child. In our memorandum on the
draft bill, we said "This power is not inappropriately wide
in principle but, if there are any particular ways in which Parliament
would not wish the power to be exercisable, those ways should
be specified in the bill, in addition to the restriction about
sex selection on non-health grounds.". We draw to the
attention of the House that the power at 1ZC(1) could be used
to expand widely the purposes for which licences are granted for
testing embryos. If the House grants this delegation, the only
restriction on the purpose of testing will be that contained in
paragraph 1ZC(3).
Research licences: inter-species embryos —
Schedule 2, paragraph 6
22. Schedule 2, paragraph 6 is explained at paragraphs
38 to 43, with the delegated power relating to inter-species embryos
being addressed at paragraph 41.
23. Schedule 2 to the 1990 Act lists the activities
for which licences may be granted. In connection with new section
4A(2) of the Act (to be inserted by clause 4(2) of the bill),
which prohibits certain activity related to inter-species embryos
etc. without a licence, Schedule 2 to the 1990 Act is amended
to enable licences to be granted for certain activities related
to inter-species embryos etc.
24. The bill has addressed our criticism of the
draft bill, which enabled regulations by the Secretary of State
to specify the activities which could be licensed[8].
Local Transport Bill [HL]
25. This bill makes significant changes to five
substantial earlier Acts. The Department for Transport has prepared
a memorandum for the Committee, explaining the delegated powers
in the bill, printed at Appendix 3. The memorandum includes a
table which sets out each delegation although a number of the
items in that table do not in fact involve the delegation of legislative
power and some delegations of legislative power have been omitted.
26. The bill contains some significant delegations,
either conferred in the bill itself or in amplification of existing
powers under those Acts. These are in most instances similar in
character to existing provisions about transport matters and are
either made subject to the affirmative procedure or are inserted
into, or closely reflect (as is the case with the provisions in
Schedule 3 to the bill) existing statutory regimes in circumstances
where the negative procedure already applies to the comparable
powers.
Henry VIII powers
POWER TO MAKE INCIDENTAL, SUPPLEMENTAL, CONSEQUENTIAL
OR SAVING PROVISION — CLAUSES 1(2), 6(3), 64 & 65
27. The bill confers several Henry VIII powers
in connection with powers to make incidental, supplemental, consequential
or saving provision in relation to the exercise either of existing
powers (clause 1(2)) or of new powers conferred by the bill (clauses
6(3), 64 (in the new section 125B(8)), 65 (in the new section
19A(4)) and 80(4)). Clause 64 also enables (in new section 125A(6)
of the Transport Act 1985) the amendment of primary legislation
in connection with the power in subsection (2) to re-name the
Public Transport Users' Committee established under subsection
(1) of that section. Each of these powers is subject to the affirmative
procedure and extends to the amendment of Acts whenever passed.
The delegation of the power to amend future Acts is possibly excessive.
28. It is normally undesirable in principle for
an Act of Parliament to delegate a Henry VIII power which can
be used to amend Acts yet to be passed in future sessions. A power
to amend future Acts can be a legitimate delegation: for example
where the substantive provisions will only be exercised in a number
of years' time. But the Government should justify each departure
from this principle and the House may wish to invite the Minister
to make the case to the House for each of these delegations to
amend future Acts.
BUS SERVICES QUALITY CONTRACTS SCHEMES - CLAUSE 25
29. Clause 25(10) enables the Secretary of State
by order to amend subsections (1A) and (2A) of section 127 of
the Transport Act 2000 (which are inserted by clause 25), subject
only to the negative procedure. The power is however confined
to the variation of maximum periods within which a quality contracts
scheme for bus services in England must be made or may remain
in operation under that section; and it is in the same character
as the existing power under section 127(10) to amend the period
specified in subsection (1). When considering the bill which became
the Transport Act 2000, our predecessor Committee considered both
the delegation of the power and the negative procedure to be appropriate
(20th Report, 1999-2000, paragraph 21) and we take the same view
here.
INTEGRATED TRANSPORT AUTHORITIES' POWER TO PROMOTE
WELL BEING — CLAUSES 86 - 89
30. Clause 86 enables an Integrated Transport
Authority ("ITA") established under clause 67 to take
action to promote or improve the economic, social and environmental
well-being of its area. But the Secretary of State may, by order
under clause 87(3), prevent the ITA from doing under clause 86
anything specified or described in the order. In addition, clause
88(1) enables the Secretary of State, if he thinks that an enactment,
whenever passed or made, prevents or obstructs ITAs from exercising
their power under clause 86(1), to amend, repeal or disapply it
by order. As the Department's memorandum (paragraphs 161-164)
explains, the provision made by clauses 86 - 89 is in very similar
terms to that made in relation to local authorities under sections
2, 3, 5 and 9 of the Local Government Act 2000. The order-making
power in clause 87(3) reflects that conferred by section 3 of
the 2000 Act and is likewise subject to the affirmative procedure;
and the power conferred by clause 88(1) reflects the power in
section 5 of the 2000 Act and is likewise subject to a 'super-affirmative'
procedure by virtue of clauses 88(5) and 89. We consider both
the delegation and the level of scrutiny proposed for the powers
in clauses 87(3) and 88(1) to be appropriate.
Detention of public service vehicles — clause
41 and Schedule 3
31. Clause 41 introduces Schedule 3 which in
turn inserts a new Schedule 2A into the Public Passenger Vehicles
Act 1981 to allow the detention of public service vehicles used
without an operator's licence. The new Schedule includes delegated
powers to create offences at paragraphs 18 and 19, subject to
the negative resolution procedure. This is not in this case inappropriate
both because the ingredients of the offences and the maximum penalties
are set out on the face of the bill, and because the provision
closely reflects that for goods vehicles set out in the Goods
Vehicles (Licensing of Operators) Act 1995.
Additional sanctions for failures by bus operators,
and operational data — clauses 55 & 56
32. Clause 55 amends section 155 of the Transport
Act 2000 which enables a traffic commissioner to impose a financial
penalty on an operator who fails to operate local services satisfactorily.
A new subsection (1A) is inserted to make a wider range of sanctions
available to the traffic commissioner: paragraphs (a) to (c) enable
him to order a financial penalty, the expenditure of a specified
sum on local services or compensation to passengers. Paragraph
(d) confers power on the Secretary of State or the Welsh Ministers
to provide by order for the commissioner to make 'such other order
as may be prescribed'. Despite the potentially wide scope of this
power to enable almost any other form of sanction to be prescribed,
such an order would, by virtue of section 160(2) of the Transport
Act 2000, be subject only to the negative procedure. There is
no explanation, either in paragraph 143 of the Explanatory Notes
or in paragraphs 127-128 of the memorandum, as to the nature of
the additional sanctions which the department envisages might
be made available to commissioners in exercise of this power.
We consider that the department has not made the case for the
negative procedure and that this power should be subject to affirmative
resolution.
33. Subsections (2) - (4) of clause 56 amend
section 6 of the Transport Act 1985 which requires the registration
with the traffic commissioner of local transport services. Subsection
(9) of that section enables provision about registration to be
made by regulations subject to the negative procedure, including
provision for the records and information to be provided by service
operators to the traffic commissioner and others. Clause 56(3)
inserts an additional power to restrict the use that may be made
of such information, and subsection (4) provides for the creation
of one or more criminal offences for breaches of any such restriction.
We do not consider the negative procedure to be inappropriate
for the power in new subsection (10) of section 6 because the
power is constrained as respects the nature of the conduct in
relation to which the offence may be imposed and the maximum penalty
which may be imposed.
Delegations of functions of the Secretary of State
and of local authorities — clauses 73 & 74
34. Clauses 73 and 74 enable the Secretary of
State by order to provide for the delegation of functions of his,
or of a local authority, to an Integrated Transport Authority
('ITA') or Local Transport Authority ('LTA'). At first sight,
the extent of these powers ("any function which the Secretary
of State considers can appropriately be exercised" by the
ITA or LTA) raises a question whether a delegation in such broad
terms can be appropriate. But the sub-delegation of legislative
powers, and powers to fix fees or charges, are excluded by clause
73(1)(a) from the functions which may be delegated. By virtue
of clause 79, the exercise of the power is also subject to consultation
of the authorities concerned, and must normally have been preceded
by a scheme following a review locally. The exercise of the power
is further constrained by subsections (2)(a) and (b) and (5)(a)
and (b) of clause 79; and the Secretary of State's conclusions
on 'appropriateness' would be reviewable by the courts against
the criteria set by those subsections. Accordingly, we do not
consider these delegations inappropriate.
Orders making arrangements about Integrated Transport
Authorities — clauses 72 - 80
35. Clauses 72 to 80 delegate a number of order-making
powers to the Secretary of State to make provision about arrangements
for Integrated Transport Authorities. Clause 81 subjects all of
these powers to the affirmative resolution procedure. Many of
the matters delegated in these clauses justify the affirmative
procedure (for example, the delegation of local authority functions)
but some do not. We invite the Government to consider how they
will exercise these powers to make the most efficient use of time
in the two Houses. For example, the House could conveniently consider
the provision if laid as a single order or if a number of orders
setting up separate ITAs were laid at the same time and considered
together. Staggered implementation through a large number of orders
taken at different times could burden the House. If the latter
scenario is likely, we might consider a mixture of negative and
affirmative powers to be more appropriate.
Powers of Entry etc. Bill [HL]
36. This private member's bill does not delegate
legislative power.
Draft legislative Reform (Local Authority
Consent Requirements) (England and Wales) Order 2007
37. The Department for Communities and Local
Government laid the first draft Legislative Reform Order (LRO)
under the Legislative and Regulatory Reform Act 2006, the successor
to the Regulatory Reform Act 2001, on 25 July 2007. The Department
for Communities and Local Government have laid an Explanatory
Document in accordance with the same Act[9].
38. The purpose of the LRO is to remove requirements
for local authorities in England and Wales to seek consent before
taking certain action, set out in certain provisions of:
- the Cancer Act 1939;
- the Local Government Act 1972;
- the Local Government (Overseas Assistance) Act
1993; and
- the Education Act 1996.
PROCEDURE
39. When considering an LRO, our role is not
to consider in depth the policy in the draft order, but to consider
whether it is "appropriate" to be made under the 2006
Act[10]; if so, whether
it meets the tests in the 2006 Act; and to consider the matters
considered for other instruments by the Joint Committee on Statutory
Instruments.
40. Unlike the Regulatory Reform Act 2001, which
provided a single super-affirmative procedure for regulatory reform
orders, the 2006 Act allows the Government to propose the negative,
affirmative or super-affirmative procedure for each LRO, with
Parliament (advised by this Committee and our counterpart in the
Commons) allowed to upgrade the procedure if it so wishes within
30 days from the date on which the draft was laid. The Government
proposed the affirmative procedure for this draft order but, on
17 October, we recommended to the House that the super-affirmative
procedure should apply instead[11].
We made this recommendation because we needed to correspond further
with the Government about the draft order and because we considered
that we might wish to propose amendments.
OPINION OF THE COMMITTEE
41. Our correspondence with the Government is
printed at Appendix 4. It took time and repeated effort by the
Committee to get the department to make their case on each of
the issues which we raised and we remind the Government that,
with future LROs, the onus is on the department to demonstrate
clearly in their explanatory document why each provision meets
the tests in the 2006 Act.
42. The department has now satisfied us on all
but one point.
43. The remaining issue relates to the draft
order's amendment of section 4 of the Cancer Act 1939 which makes
it an offence to publish any advertisement offering treatment
for cancer. Under section 4(6) of 1939 Act, a local authority
must obtain the Attorney General's consent before instituting
a prosecution in England or Wales under section 4. Paragraph 2
of the draft order proposes to remove this requirement on local
authorities to seek the consent of the Attorney General. We agree
that, for the purposes of the 2006 Act, this removes a burden
on local authorities and the Attorney General. There is however
a question about the scope of the amendment. Section 4(7) of the
1939 Act refers to councils of counties and county boroughs. As
made clear in the department's explanatory document, this would
have covered all areas in England and Wales at the time of passing
the 1939 Act. An anomaly has however since arisen because the
Local Government Act 1985 abolished metropolitan county councils
but did not transfer the function of prosecuting under section
4(7) of the 1939 Act to metropolitan district councils. The draft
order proposes to correct this anomaly. The order-making power
in the Regulatory Reform Act 2001 expressly contemplated the removal
of "inconsistencies and anomalies" (section 1(1)(d))
but the 2006 Act does not include such provision (section 1).
The Government have argued (in the correspondence at Appendix
4 but not in their explanatory document) that the anomaly constitutes
an "administrative inconvenience" for the purpose of
the 2006 Act; but we cannot agree. While it may be sensible
as a matter of policy to remove this small anomaly, we cannot
agree that the absence of a power to prosecute is an administrative
inconvenience within the definition of "burden" in the
2006 Act. We thus recommend that the draft order be amended so
as not to extend to metropolitan district councils. With such
an amendment, and amendment of the recital in respect of Wales[12],
we consider that the draft order meets the tests in the Legislative
and Regulatory Reform Act 2006 and is appropriate to be made under
it.
1 See 3rd Report (2006-07) (HL Paper 19). Back
2
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), Appendix 7. Back
3
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), paragraph 141. Back
4
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), paragraph 189. Back
5
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), paragraph 173. Back
6
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), Appendix 7, paragraph
10. Back
7
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), Appendix 7, paragraph
11. Back
8
Report from the Joint Committee on the draft Human Tissue and
Embryos Bill (Session 2006-07, HL Paper 169-I), Appendix 7, paragraphs
8 and 9. Back
9
Available online at http://bre.berr.gov.uk/regulation/documents/regulatory_reform/pdf/2007_legislative_%20reform_explanatory.pdf Back
10
For our view on appropriateness, see our Report on the Legislative
and Regulatory Reform Bill: 20th Report, Session 2005-06 (HL Paper
192), paragraphs 49-51. Back
11
House of Lords Minutes of Proceedings, 17 October 2007. Back
12
With an appropriate footnote explaining the transitional arrangements. Back
| 
