Fourth Report
Channel Tunnel Rail Link
(Supplementary Provisions) Bill
1. This bill does not delegate legislative power.
Criminal Justice and Immigration
Bill
2. This substantial bill of 14 parts, the contents
of which are summarised in paragraphs 4 to 74 of the Explanatory
Notes, contains a large number of delegated powers. The Ministry
of Justice has provided a memorandum, printed at Appendix 1, explaining
the reasons for most of the delegations and the choice of procedure
in each case.
Henry VIII Powers
3. There are Henry VIII powers in clauses 4(3),
15(6), 16(6), 29(2), 111(7), 141(4), 186(6), 190 and 197(4), paragraphs
27 and 35(3) of Schedule 1, paragraphs 10 and 25 of Schedule 2,
paragraph 17(2) of Schedule 3, paragraph 6 of Schedule 5, paragraph
2(4) of Schedule 7, paragraph 3 of Schedule 18, paragraph 6 of
Schedule 19, paragraph 7(3) of Schedule 29 and paragraph 11 of
Schedule 35. Of those, the powers in the following provisions
are made subject only to the negative procedure:
- Clause 190 (Power to suspend the
operation of section 127 of the Criminal Justice and Public Order
Act 1994)
- Paragraph 10 of Schedule 2 (which enables the
amendment by order of the amounts of fines specified in four provisions
of that Schedule, but only in so far as is necessary to reflect
changes in the value of money)
- Paragraph 17(2) of Schedule 3 (which enables
the amendment by order of that Schedule, which applies in relation
to Northern Ireland, in consequence of particular kinds of future
changes to the law of Northern Ireland)
- Paragraph 7(3) of Schedule 29 (which enables
the amendment by order of the amount of a financial penalty specified
in that paragraph, a power which could only be exercised so as
to reflect a change in the amount set out under international
arrangements relating to the enforcement abroad of such penalties)
Apart from the power conferred by clause 190, which
we consider below, we are satisfied that the negative procedure
is not inappropriate in each of the above cases.
Release of prisoners after recall — clause
29(2)
4. Clause 29(2) inserts new sections 255A to
255D into the Criminal Justice Act 2003 to introduce new arrangements
for the release of prisoners who have been recalled to prison
under section 254 following their earlier release. New section
255A provides for a prisoner to be considered for "automatic
release" at the end of the period of 28 days beginning with
the date of his return to prison. Where the prisoner is not automatically
released, new section 255C requires the referral of his case to
the Parole Board where he has made representations under section
254(2) within that same period of 28 days. New sections 255A(9)
and 255C(7) confer power on the Secretary of State to, in effect,
substitute by affirmative order a different number of days for
either of those periods.
5. These powers could be exercised in a way which
could postpone prisoners' right to automatic release, or postpone
the referral of their cases to the Parole Board. In paragraph
38 of its memorandum, the Department explains that the affirmative
procedure is appropriate because the exercise of either power
would involve the amendment of primary legislation. The Department
has not however explained why these powers are thought to be necessary,
nor in what circumstances the power would be used. We draw this
to the attention of the House, so that the House might seek a
justification for this delegation.
Her Majesty's Commissioner for Offender Management
and Prisons and the Northern Ireland Commissioner for Prison Complaints
— Parts 4 and 5
6. Clauses 50 to 97 (Parts 4 and 5) make provision
for Her Majesty's Commissioner for Offender Management and Prisons
and for the Northern Ireland Commissioner for Prison Complaints.
The Minister has announced that he intends to oppose the question
in Committee that these clauses stand part of the bill[1].
Accordingly, we have not considered the delegations proposed in
these two Parts.
Alternatives to prosecution for persons under
18 — Schedule 18, paragraph 3
7. Schedule 18, introduced by clause 98, inserts
new sections 66A to 66H into the Crime and Disorder Act 1998,
introducing provision for "youth conditional cautions"
for offenders aged 16 or 17. Much of this provision is modelled
on that for conditional cautions for adults in sections 23 to
27 of the Criminal Justice Act 2003. New section 66G requires
the Secretary of State to prepare a draft code of practice in
relation to youth conditional cautions. After consultation and
(if appropriate) amendment, the code is laid before Parliament,
and may be brought into force by negative order. The equivalent
code in relation to adults under section 25 of the 2003 Act requires
an affirmative order to bring it into force. In paragraph
77 of its memorandum, the Department supports its proposal for
the negative procedure by explaining that the code for youth cautions
will 'closely follow' that for adults and that, as the latter
code has now been in place for some time, the affirmative procedure
is no longer appropriate.
8. We do not regard it as self-evident that a
code of practice concerned with the treatment of young persons
as respects conditional cautions ought necessarily to reflect
closely the equivalent code for adult offenders. The House might
well wish to satisfy itself that the substance of the code, if
only in its initial form, is appropriate before it is brought
into force by order under new section 66G(5): we made a similar
recommendation in our Report on the bill which became the Criminal
Justice Act 2003[2]. We
recommend that an order bringing the first code into force should
require the affirmative procedure but that the negative procedure
would afford an adequate level of scrutiny in respect of subsequent
revisions.
Police misconduct and performance procedures —
Schedule 32, paragraphs 7, 8, 15 and 16
9. Schedule 32, introduced by clause 177, amends
provisions in the Police Act 1996 ("the Police Act")
and the Ministry of Defence Police Act 1987 about disciplinary
proceedings and appeals concerning the conduct of officers of
the civilian and MoD police forces. At present, both Acts provide
that police officers up to the rank of chief superintendent cannot
be dismissed, required to resign or reduced in rank without having
been offered legal representation in disciplinary proceedings,
and that such officers have a right of appeal to the police appeals
tribunal from any decision that they be dismissed, required to
resign or reduced in rank. The Police Act also provides that a
civilian appellant is entitled to representation by a barrister
or solicitor at a hearing before the police appeals tribunal.
10. As a result of the amendments to be made
by Schedule 32, entitlement to legal representation in both civilian
and MoD cases would become a matter for negative subordinate legislation[3].
Although the new section 84(1) of the Police Act (paragraph 7)
imposes a duty to make regulations providing for an officer 'to
be represented in proceedings', the circumstances in which legal
representation is to be available are left to a power under new
section 84(2). Exactly the same regime is to apply in MoD cases
under new section 4(1) and (2) of the Ministry of Defence Police
Act (paragraph 15). Moreover, the circumstances in which there
is to be a right to appeal to the police appeals tribunal is to
be left to negative rules under new section 85(1) of the PA (paragraph
8), and to negative regulations under new section 4A(1) of the
Ministry of Defence Police Act (paragraph 16). Finally, the circumstances
in which a civilian appellant before the police appeals tribunal
will be entitled to legal representation are to be left to negative
rules under new section 85(4) of the Ministry of Defence Police
Act.
11. It is not unusual for rights first set out
in primary legislation to be replaced by delegated provision in
a future statute but we have carefully considered these particular
provisions. We draw to the attention of the House that provision
about entitlement to legal representation and about rights of
appeal will in future appear in subordinate rather than primary
legislation. In view of this, we consider that the first exercise
of each of these four powers should attract the affirmative procedure.
Schedule 33, paragraph 17
12. Schedule 33, introduced by clause 178, amends
the Police Reform Act 2002, inserting new provisions into Schedule
3 about the investigation of complaints of police misconduct.
Paragraph 17 enables the Secretary of State, by regulations subject
to the negative procedure, to define the terms "gross misconduct"
and "misconduct", which are used several times in the
new provisions. The power to define in subordinate legislation
words used in an Act is close to a Henry VIII power and we consider
that, in the absence of clear justification to the contrary, it
should require the affirmative procedure.
Foreign criminals: support — clause 186(6)
and (7)
13. Clause 182 defines "foreign criminal"
and Part 12 of the bill makes provision about a person who is
designated as such by the Secretary of State. The Part covers
immigration status; accommodation; maintenance and other support;
and the conditions which may be imposed as respects residence,
employment and monitoring of the person or a member of his family.
14. Clause 185(3) deals with the availability
of support for a designated person (accommodation, essential living
needs etc.) under section 95 of the Immigration and Asylum Act
1999 and subsection (4) provides that, save in exceptional circumstances,
such support is not to be provided wholly or mainly by way of
cash.
15. Clause 186(6) confers power on the Secretary
of State by affirmative order to repeal, modify or disapply clause
185(4). In paragraph 193 of its memorandum, the Department explains
that the power is necessary to ensure that the support scheme
can be operated more flexibly "should the circumstances require
it", and that "if the temporary difficulties …
continue" subsection (4) may need to be repealed. The memorandum
does not however describe either the nature of the "circumstances"
or "difficulties" which the Department envisages might
justify the modification, disapplication or repeal of clause 185(4).
We draw this to the attention of the House so that the House
might seek a justification for a Henry VIII power of this kind.
Industrial action by prison officers — clauses
189 and 190
16. Clause 189 amends section 127 of the Crime
and Disorder Act 1994 to re-instate an obligation (removed by
a Regulatory Reform Order ('RRO') (S.I.2005/908)) to refrain from
inducing a prison officer to take or continue to take "industrial
action", for which clause 189(3) inserts a new definition.
Clause 190 inserts a new section 127A which enables the Secretary
of State by negative order to suspend, and later revive, the operation
of section 127. The power is to be exercisable in relation to
different descriptions of prison officer, the categories of which
are described in section 127(4), which is to be amended by clause
189(4).
17. In paragraph 202 of its memorandum, the Department
envisages that section 127 would be suspended in relation to prison
officers in respect of whom the Secretary of State is satisfied
"that there exists equivalent protection from industrial
action, whether by legally enforceable voluntary agreement or
otherwise". The Department goes on to say however that clause
190 implements a suggestion made by this Committee in session
2004-05 when it considered[4]
a proposal that the RRO should amend section 127 so that it did
not apply to prison officers (but continued to apply to custody
officers and prisoner custody officers) in Great Britain, on the
ground that equivalent provision had been secured through voluntary
agreements.
18. In reporting on the RRO, our predecessor
Committee expressed concern that the proposed amendment could
remove necessary protection if a voluntary agreement were to lapse
before Parliament had an opportunity to restore the prohibition
in section 127. It suggested that one alternative might be to
modify the proposal so that the operation of section 127 would
be suspended as respects a union for so long as it had a current
agreement with the Secretary of State not to engage in activity
which that section would otherwise prohibit. The Report did not
however suggest that the suspension should be effected by subordinate
legislation (indeed, this could not have been included in an order
under the Regulatory Reform Act 2001).
19. We welcome the department's intention that
an order which revives section 127 should attract the affirmative
procedure but paragraph 202 of the memorandum does not explain
why it is not possible for the suspension mechanism to be included
in the 1994 Act itself. The House may wish to seek such an
explanation from the Minister before agreeing to delegate to subordinate
legislation the power to suspend and revive a provision of an
Act.
Crossrail Bill
20. This bill makes provision for the "Crossrail"
railway from Maidenhead / Heathrow to Shenfield / Abbey Wood.
A memorandum from the Department for Transport about the delegated
powers in the bill is printed at Appendix 2. The bill is hybrid
and the powers which it confers are restricted in their effect
to certain localities, i.e. those affected by the Crossrail railway
system. We have borne this in mind in our consideration of the
level of parliamentary scrutiny required for subordinate legislation
under the bill.
Permitted development: time limit — clause
11(2)
21. Clause 10 deems planning permission to be
granted to certain Crossrail works, including new stations within
the central section of the route to be constructed. Clause 11
makes this deemed planning permission conditional upon development
being begun within ten years of Royal Assent. Clause 11(2), which
is based on a similar provision in section 10(2) of the Channel
Tunnel Rail Link Act 1996 allows the Secretary of State by order
subject to negative resolution to extend the period of deemed
planning permission. We consider this provision appropriate if
limited in its application to specific development (as suggested
by paragraph 17 of the memorandum).
Crossrail access contracts — clause 30
22. Clause 30(1) and (2) enable the Secretary
of State, by order which must be laid before Parliament but which
is not subject to a parliamentary procedure, to disapply for access
contracts relating to the principal Crossrail tunnel the normal
requirements for ORR approval. Paragraphs 40 and 41 of the memorandum
have persuaded us of the need for a delegation and that its exercise
need not be subject to a parliamentary procedure.
References to Secretary of State — clause
48(6)
23. Clause 48(6) confers a Henry VIII power subject
only to the negative procedure, which we do not consider inappropriate.
Power to devolve functions to the Secretary of
State — clause 60(1)
24. Clause 60(1) confers what is in effect a
Henry VIII power to modify references in the Act to the Secretary
of State to references to the Greater London Authority, Transport
for London, or both and to make consequential provision which
may include modifying the Act. The bill currently provides for
no parliamentary procedure and the memorandum (paragraph 60) provides
inadequate justification for this omission. The devolution of
responsibility for the Crossrail project by modifying the Act
may well give rise to issues over which Parliament should have
a measure of control and we consider that this power should
be subject to the negative procedure.
Arbitration — clauses 63(5) and 20(4)
25. Clause 63 makes provision for the arbitration
of disputes under the Act. Subsection (5) enables the Secretary
of State for Communities and Local Government and the Secretary
of State for Transport acting jointly to make rules by statutory
instrument subject to no parliamentary procedure about the arbitration.
If (as seems likely) it is possible that one or other of the
Secretaries of State might be a party to an arbitration arising
from this Act, then we consider, despite the precedent in section
43 of the 1996 Act, that these rules should be subject to a parliamentary
procedure (the negative procedure would suffice). Similar considerations
might apply to the power at clause 20(4).
Urban Development Corporations — Schedule
7, paragraph 36
26. Paragraph 36 of Schedule 7 confers a narrow
Henry VIII power subject only to negative procedure. Both due
to the restricted nature of the power and for the reason given
in paragraph 89 of the memorandum, this is not inappropriate.
Transfer schemes: tax provisions — Schedule
13, paragraph 45
27. Paragraph 45 of Schedule 13 enables the Treasury
by regulations subject to negative procedure substantially to
re-write the provisions of Schedule 13, which relate to tax provisions
for transfer schemes. As the power concerns taxation only, the
parliamentary procedure is in the House of Commons only.
European Communities (Finance)
Bill
28. This money bill does not delegate legislative
power.
House of Lords (Amendment)
Bill [HL]
29. This private member's bill does not delegate
legislative power.
Sale of Student Loans
Bill
30. This bill enables rights to repayment of
student loans to be sold. Clauses 4 and 5 amend the Secretary
of State's existing powers to make regulations about financial
support for students. The exercise of the relevant powers is subject
to either affirmative or negative procedure, at the option of
the Secretary of State. Clause 8(3) to (5) amends the existing
power of Welsh Ministers (which are less extensive than those
of the Secretary of State). A memorandum from the Department for
Innovation, Universities and Skills explains the amendment to
existing powers, printed at Appendix 3. There is nothing in the
delegations which we wish to draw to the attention of the House.
Child Maintenance and
Other Payments Bill — Government Amendments
31. We reported on this bill in our 3rd Report
(HL Paper 26). The Government have now invited us to consider
several amendments to be moved in Grand Committee, now incorporated
in the marshalled list (HL Bill 12—I). The Department for
Work and Pensions has provided a supplementary memorandum on the
amendments, printed at Appendix 4.
32. A number of the amendments change the status
of the Child Maintenance and Enforcement Commission to that of
a Crown body, but a Henry VIII power (amendment 68) provides for
the Secretary of State, by order subject to affirmative resolution,
to provide that the Commission ceases to be a Crown body. We do
not regard this as inappropriate.
33. Another series of amendments (including amendment
157) makes further changes to the enforcement mechanisms in the
Child Support Act 1991. The new provisions contain a number of
regulation-making powers, all of them subject to affirmative resolution.
The delegations are not inappropriate but we note that several
of the powers concerned could, taken alone, appropriately have
been made subject to the negative procedure. We do not however
make and recommendation about this because it seems likely that
a single set of regulations will cover all of the matters provided
for in the new provisions and that this will be more convenient
to the House than separate sets subject to different procedures.
34. There is nothing further in the amendments
which we wish to draw to the attention of the House.
Children and Young Persons
Bill [HL] — Government Amendment
35. We reported on this bill in our 2nd Report
(HL Paper 21). The Government have now invited us to consider
an amendment to be moved in Grand Committee, printed on sheet
HL Bill 8—I. The Department for Children, Schools and Families
has provided a supplementary memorandum on the amendment, printed
at Appendix 5. There is nothing in the amendment which we wish
to draw to the attention of the House.
Local Transport Bill [HL]
— Government Amendments
36. We reported on this bill in our First Report
(HL Paper 11) and published the Government's response in our 2nd
Report (HL Paper 21). The Government have now invited us to consider
amendments for Report and on Third Reading, printed on sheets
HL Bill 15(a) and HL Bill 19—I. The Department for
Transport has provided two supplementary memoranda on the amendments,
printed at Appendix 6. There is nothing in the amendments which
we wish to draw to the attention of the House.
Regulatory Enforcement
and Sanctions Bill [HL] — Government Amendments
37. We reported on this bill in our 2nd Report
(HL Paper 21). The Government have now invited us to consider
amendments to be moved in Grand Committee, printed on sheet HL
Bill 7(e). The Department for Business, Enterprise and
Regulatory Reform has provided a supplementary memorandum on the
amendments, printed at Appendix 7. There is nothing in the amendments
which we wish to draw to the attention of the House.
Child Maintenance and
Other Payments Bill — Government Response
38. We reported on this bill in our 3rd Report
(HL Paper 26) and the Government have now responded by way of
a letter to the Chairman from Lord Mackenzie of Luton, Parliamentary
Under-Secretary of State at the Department for Work and Pensions,
printed at Appendix 8.
Children and Young Persons
Bill [HL] — Government Response
39. We reported on this bill in our 2nd Report
(HL Paper 21) and the Government have now responded by way of
a letter to the Chairman from Lord Adonis, Parliamentary Under-Secretary
of State at the Department for Children, Schools and Families,
printed at Appendix 9.
Human Fertilisation and
Embryology Bill [HL] — Government Response
40. We reported on this bill in our First Report
(HL Paper 11) and the Government have now responded by way of
a letter to the Chairman from Professor the Lord Darzi of Denham,
Parliamentary Under-Secretary of State at the Department of Health,
printed at Appendix 10.
Regulatory Enforcement
and Sanctions Bill [HL] — Government Response
41. We reported on this bill in our 2nd Report
(HL Paper 21) and the Government have now responded by way of
a letter to the Chairman from Lord Jones of Birmingham, Minister
of State at the Department for Business, Enterprise and Regulatory
Reform, printed at Appendix 11.
42. In our report, we questioned the provision
at clause 53(3)(b), to authorise the use of information in evidence
which could not otherwise lawfully so be used. The Government
have justified the delegation at paragraph 23 of their response,
which justification we accept. We consider however, that the
power at clause 53(3)(b) should be limited to replicating provision
which already exists for prosecuting the parallel criminal offence.
1 Lord Hunt of Kings Heath, HL Deb 22 January 2008
col 129. Back
2
21st Report (2002-03) HL Paper 122, paragraph 9. Back
3
The department's memorandum indicates that no procedure will apply
to rules made under paragraph 8(3) (new section 85(4)), but the
bill in fact provides for each of these rule-making powers to
be subject to the negative procedure: see paragraph 8(4) which
substitutes a new section 85(5) of the Police Act 1996. Back
4
2nd Report (2004-05) paragraph 10. Back
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