Child Poverty Bill, etc - Delegated Powers and Regulatory Reform Committee Contents

Third Report

Child Poverty Bill



1.  This Bill had its Second Reading on 5 January. It makes provision about the steps to be taken at a national and local level with a view to eradicating child poverty. Part 1 imposes duties on the Secretary of State to ensure that four income targets relating to child poverty are met in the UK in relation to the financial year 2020-21 and subsequent years. Part 2 makes provision requiring co-operation between local authorities and other agencies in tackling child poverty. A memorandum explaining the delegated powers conferred by the Bill, printed in Appendix 1, has been prepared by the Department for Children, Schools and Families, the Department for Work and Pensions and the Treasury ('the Departments').

  'Material deprivation, 'persistent poverty' and 'qualifying household'

2.  Significant features of the four income targets under Part 1 are left to subordinate legislation. For instance, the 'combined low income and material deprivation target' (clause 3) requires that "less than 5% of children who live in qualifying households … experience material deprivation". There is no definition in the Bill of 'material deprivation', but the circumstances in which a child is to be regarded as experiencing such deprivation must be specified in regulations under clause 3(3). Similarly, the 'persistent poverty target' (clause 5) requires that "less than the target percentage of children who have lived in qualifying households … have lived in households that have been within the relevant income group…". The target percentage is not set out in the Bill but must be specified before 2015 in regulations under clause 5(3). The catchment population for both of those targets, and the other two targets (in clauses 2 and 4), is set by reference to a 'qualifying household', an expression which is not defined in the Bill, but is to be the subject of regulations under clause 6(1)(a) and (b). Finally, clause 5(5) contains a Henry VIII power which enables the Secretary of State to substitute by regulations entirely different provision for the 'persistent poverty target'. All of the relevant powers (in clauses 3(3), 5(3) and (5) and 6(1)) are subject to the affirmative procedure.

3.  In support of these delegations, the Departments explain that in some cases data are not yet available to allow the relevant provision to be set out in the Bill. This is in particular the case as respects the target percentage, and the power to substitute new provision, under clause 5 (paragraphs 18 and 19 of the memorandum), and the matters which may be the subject of regulations, including the definition of 'qualifying household' under clause 6(1) (paragraphs 22 to 30 of the memorandum). In relation to the meaning of 'material deprivation' for the purposes of clause 3, the Departments explain that the definition is likely to need periodic adjustment (paragraph 14 of the memorandum).

4.  We are surprised that the definition of a key expression like 'material deprivation' should be left to subordinate legislation. We are nevertheless influenced by the consideration that it is only future government policy that will be directly affected by these targets rather than the rights and obligations of individuals; nor does the Bill provide for any sanction to apply where a target is not met. In the light of that, we do not feel bound to conclude that any of these delegations is inappropriate. But we draw to the attention of the House the extent to which many essential elements of the four targets depend for their definitions entirely on provision to be made by regulations, so that the House may invite the Minister to explain why (for instance) 'material deprivation' cannot be defined in clause 3, with a power to adjust the definition by regulations should that prove necessary.

  Clause 19 - partner authorities

5.  Clause 19(6) confers a Henry VIII power, exercisable by negative regulations. Clause 20 requires local authorities and 'partner authorities' to co-operate in making arrangements to promote co-operation between them, with a view to reducing, and mitigating, the effects of child poverty in their areas. The 'partner authorities' are listed in clause 19(2), and clause 19(3) sets out the functions in relation to which the Secretary of State may be a 'partner authority'. Clause 19(6) enables the Secretary of State by order to amend subsection (2) to add or remove persons, and to amend subsection (3) to add or remove functions of the Secretary of State, and to make consequential changes in clause 19.

6.  The Departments explain in paragraphs 39 and 40 of their memorandum that the power is required in order to allow the flexibility necessary for keeping the list in subsection (2) and the functions in subsection (3) up to date. In support of the choice of negative procedure, the Departments refer to the obligation in clause 19(7) that there must be consultation with representatives of local government, and other persons as the Secretary of State thinks fit, before the power is exercised. We do not consider that an obligation to consult is a substitute for an adequate level of Parliamentary oversight. Unless the Minister can satisfy the House that there are other reasons why the negative procedure should apply in this case, we recommend that the power in clause 19(6) should be subject to the affirmative procedure.

Equality Bill - Parts 6 to 15


7.  We reported on Parts 1 to 5 of this Bill in our second report (HL Paper 24). This report deals with the remaining parts of the Bill (6 to 15). There is a memorandum from the Government Equalities Office, printed in appendix 2 to our second report, explaining most of the delegated powers in the Bill.

  Clause 106 - associations

8.  The power in clause 106 is described in paragraphs 85 and 86 of the Government memorandum as being subject to the negative procedure. It seems to us that clause 200(2) provides for the affirmative procedure, which is appropriate for this Henry VIII power.

  Clause 150 - public authorities

9.  Clause 148(1) requires a public authority, in the exercise of its functions, to have due regard to the need to eliminate discrimination, to advance equality of opportunity and to "foster good relations between persons who share a relevant protected characteristic and those who do not share it". Clause 148(2) places a similar duty on those who are not public authorities but who exercise public functions, when they are exercising those functions. The authorities that are public authorities are set out in Schedule 19. "Public function" is defined in clause 149(5) as a function of a public nature for the purposes of the Human Rights Act 1998.

10.  Clause 150(1) enables a Minister of the Crown to amend Schedule 19, by order. (There are similar powers for Welsh and Scottish Ministers relating only to Parts 2 and 3 of Schedule 19 respectively.) The orders are intended to be subject to negative procedure. The application of clause 148 may not be extended unless the extension is considered to relate to a person by whom a public function is exercisable. There is a precedent for this power, and for the negative procedure, in section 71(5) of the Race Relations Act 1976. (That power is much narrower as it applies only to race, not other types of discrimination.)

11.  Paragraph 99 of the memorandum indicates that the power will be used "to update the Schedule further as necessary to reflect the emergence, disappearance or change of name of public authorities". However, the power is wider than is suggested in the memorandum and could be used, for example, to add to Schedule 19 courts and tribunals and either House of Parliament. The position in the Bill is that the duty in clause 148(1) does not apply to those bodies (see paragraph 12 below). We doubt that a power being taken for the purpose of updating Schedule 19 should be capable of use to list the judicial and parliamentary bodies currently excluded from the scope of the duty, and recommend that the power in clause 150 should be limited accordingly. We also recommend that this more limited power should be subject to the affirmative procedure.

  Schedule 18 - excepted public authorities

12.  There is an equally significant power at paragraph 5 of Schedule 18. Schedule 18 lists exceptions from clause 148. Paragraphs 1 to 3 contain exceptions common to the whole of clause 148, while paragraph 4 contains exceptions specific to clause 148(2) (authorities that are not listed in Schedule 19 but which exercise public functions). The exception in paragraph 1 relates to children and that in paragraph 2 to immigration. The exception in paragraph 3 is for judicial functions. The exception in paragraph 4 is for both Houses of Parliament, the Scottish Parliament, the National Assembly for Wales, the General Synod of the Church of England, and the security services.

13.  Paragraph 5 enables a Minister by order to amend Schedule 18 so as to "add, vary or omit an exception to section 148". The very brief explanation in the memorandum of this power says that the orders are subject to negative procedure and reflect section 71 of the Race Relations Act 1976. But clause 200(2) of the Bill makes them subject to affirmative procedure; and section 71 of the 1976 Act contains no equivalent to this power (though it does contain a power equivalent to that in clause 150). We doubt that it could be appropriate for an exception relating to judicial functions (paragraph 3) or those relating to Parliament, the Scottish Parliament, the National Assembly for Wales and the General Synod (paragraph 4) to be removed or limited by statutory instrument, even one subject to affirmative procedure. If Parliament ever wishes to remove or limit these exceptions, it should do so only through primary legislation. We recommend that the power in paragraph 5 of Schedule 18 should be limited accordingly. We also invite the House to consider very carefully whether it is appropriate that a Minister of the Crown should be enabled to remove or limit any of the other exceptions in Schedule 18.

  Clause 195 - age

14.  There is a very significant power at clause 195 which is not mentioned in the Government memorandum. The background to the power is however explained in paragraph 632 of the Explanatory Notes as being to allow exceptions from the new prohibitions on age discrimination in the provision of services and the exercise of public functions.

15.  Clause 195(1) enables a Minister, by order subject to affirmative procedure, to amend the Bill to provide that specified conduct does not contravene the Bill in so far as it relates to age. The power is not expressly limited to the new prohibitions on age discrimination in the provision of services and the exercise of public functions, though there is an exclusion for work and education in subsection (8). Examples are given in paragraph 633 of the Explanatory Notes of how the power might be exercised, such as to permit concessionary travel for older and younger people, or holidays for particular age groups. We note that such exceptions will only be made if the Minister decides to bring forward an order (and that the order could subsequently be revoked). If the House wished to ensure that there are appropriate age-based exceptions, it would include them on the face of the Bill.

16.  The orders may make provision, including provision imposing requirements, by reference to guidance or documents specified in guidance (which need not be subject to a parliamentary procedure). This provision for sub-delegation would require strong justification, as it is a mechanism capable of being used to bypass the affirmative procedure and therefore removing Parliamentary control over the extent and nature of the exception, but no justification has been offered. We recommend that the provisions for sub-delegation in clause 195(3) and (6) be removed from the Bill.

  Clause 196 - harmonisation

17.  Clause 196 contains an exceptionally significant Henry VIII power, subject to affirmative procedure. It enables the Government, when implementing a Community obligation, to extend the substance of the implementing provision beyond what is required by the obligation itself. This is, in effect, the process known colloquially as "gold plating".

18.  The Government do not point to a precedent for a power of this breadth and the Committee is unaware of one, though it has on occasions considered specific powers which enable a Minister to go further than is required by specific Community obligations. The extent of the power is far wider than is suggested by the example given in paragraph 636 of the Explanatory Notes.

19.  If a Minister is implementing under section 2(2) of the European Communities Act 1972 a Community obligation which he thinks relates to the subject matter of the Equality Acts, and the Minister thinks it appropriate to make "harmonising provision" in those Acts, clause 196 enables him to do so. The Equality Acts are this Bill and the Equality Act 2006, excluding clause 196 itself and certain other provisions listed in Schedule 24.

20.  Subsection (7) describes the harmonising provision which may be made. It is, in particular, provision in relation to so much of the subject matter of the Equality Acts as does not implement a Community obligation and which:

(a)  corresponds to the implementing provision; or

(b)  the Minister thinks is necessary or expedient in consequence of, or related to, the implementing provision or that corresponding provision.

21.  It seems to us that this power could, for example, be used to copy over to other types of discrimination the implementing provisions of a Community obligation which was specifically restricted to one type of discrimination only, whatever the source of that Community obligation. Thus the provisions implementing a Directive could be extended beyond the scope of the Directive itself. This represents a very significant extension of the power given to government by the 1972 Act to implement Community obligations by subordinate legislation. It operates across the whole subject-matter of the Equality Acts.

22.  We have considered whether there are any exceptional circumstances which would justify the conferring of such powers in this Bill. The issue is touched on in paragraphs 180 and 181 of the Government memorandum. "It makes it possible to retain the unitary approach to discrimination law where that is the appropriate way to proceed" (paragraph 180). "It enables Ministers to decide to ensure that the purely domestic concepts proceed in harmony with the EC law concepts, if after consultation they consider that is the right way to go" (paragraph 181). Yet it seems to us that the inevitable consequence, and indeed purpose, of the limitations imposed by Parliament in the 1972 Act, is that in many circumstances a Bill will be required to produce uniformity, if that is what is wanted. We are not persuaded that there are special reasons justifying different arrangements in respect of equality than apply in other areas of the law. We consider the powers conferred by clause 196 to be inappropriate.

  Clause 199 - exercise of subordinate legislation powers

23.  Clause 199 contains a standard provision enabling any orders or regulations under the Bill to include consequential, incidental, supplementary, transitional, transitory or saving provision. This applies to commencement orders under the Bill as to other orders. So, a commencement order subject to no procedure can, as a result of commencing a provision of the Bill, consequentially amend other subordinate legislation which has undergone the negative or affirmative procedure. But this is very well precedented and can be regarded as something of an anomaly. Clause 199(7) contains something seen less often. It specifically enables provision consequential upon the commencement of a provision of the Bill to be contained in a separate order (whether before, after or at the same time as the commencement order) whilst, it seems to us, retaining the lack of Parliamentary procedure for that consequential provision. We consider that any such separate orders should be subject to the negative procedure.

  Other matters

24.  Many provisions in the Bill, including several of the delegated powers, are repeated from existing legislation. In some cases, if these had been new delegated powers we might well have questioned them. However, in recognition of the fact that the Equality Bill pulls together a number of existing strands of equality legislation, we simply draw them to the attention of the House.

  Clause 182

25.  Under clause 181(1) the Secretary of State can authorise, by order, the use of rail vehicles that do not meet the requirements of rail vehicle accessibility regulations. Surprisingly, under clause 182, the choice of Parliamentary procedure for such orders (affirmative or negative) is left to the Government (repeating the existing position under the Disability Discrimination Act 1995). We would not normally consider it appropriate for the executive to be left to select the appropriate level of Parliamentary scrutiny for a statutory instrument.

  Schedule 21

26.  Schedule 21 makes supplementary provision about reasonable adjustments to be made to accommodation by reason of a person's disability. Under paragraph 6 regulations subject to the negative procedure may make provision as to circumstances in which a landlord is taken to have acted "reasonably" or "unreasonably" (repeating the existing provision in the Disability Discrimination Act 1995). As such regulations would create a framework within which the courts would exercise their normal function of determining what is 'reasonable' or 'unreasonable', there is a case that regulations under paragraph 6 of schedule 21 ought to be subject to the affirmative procedure.

  Schedule 22

27.  Paragraph 5 of Schedule 22 excepts from the provisions of the Bill rules restricting employment by a public body to persons of particular birth, nationality, descent or residence. "Public bodies" are to be defined by regulations under paragraph 5(3), to be made by the Minister for the Civil Service, and subject to the negative procedure (repeating existing provision in section 75(5)(a) of the Race Relations Act 1976). In view of the range of public bodies covered by the power (widely defined in paragraph 5(4) of Schedule 22), there is a case for the power to be subject to affirmative procedure.

  Clause 200 - hybrid procedure

28.  Subsection (10) of clause 200 disapplies the hybrid instrument procedure for affirmative instruments under the Bill (powers subject to the affirmative procedure are listed in subsection (5)). We draw this to the attention of the House, so that the House can satisfy itself that the disapplication is appropriate for all relevant powers conferred by the Bill.

Equality Bill - Parts 1 to 5: Government Response

29.  As noted in paragraph 7 above, we reported on Parts 1 to 5 of the Bill in our second report (HL Paper 24). The Government have now responded by way of a memorandum from the Government Equalities Office. This is printed in Appendix 2.


30.  This Private Member's Bill is to have its Second Reading on 15 January. It amends the Climate Change Act 2008 ('the 2008 Act') to include provision for setting a target in relation to "UK consumer emissions" (to be defined by virtue of clause 2(4) of the Bill as "emissions [of greenhouse gas] from the production, supply and use of all goods and services consumed by UK residents …").

  Clause 1 - consumer emissions target

31.  The Bill contains only one delegated power, in the new section 3A inserted into the 2008 Act by clause 1(2). Subsection (1) requires the Secretary of State to set, by order subject to the affirmative procedure, a target for net UK consumer emissions for the year 2050. The duty to make an order will arise as soon as the Bill is enacted. Subsections (2) and (3) of new section 3A require the Secretary of State to ensure that the target is met by 2050, and to take account of it when setting the carbon budget under section 4 of the Act; and the steps required by new section 3B before an order may be made are identical to those required under section 3 of the 2008 Act before an Order may be made under section 2.

32.  Whereas the essential features of the existing carbon account target - a percentage reduction by reference to a 'baseline' year - are set out in section 1(1) of the 2008 Act (albeit that both the percentage and the year can be altered by order), the structure of the target under new section 3A is left entirely to subordinate legislation. So, while the target will require the approval of both Houses, neither House will have the opportunity to amend its main features. We draw to the attention of the House the absence of provision about the target on the face of the Bill, so that the House may seek more details about the nature of the provision likely to be made under new section 3A(1).




33.  These three Private Member's Bills each contain only one delegated power - to make a commencement order. As is customary, the orders are subject to no Parliamentary procedure. There is nothing in the Bills to which we wish to draw the attention of the House.


34.  The Committee is considering this LRO at the second stage of the super-affirmative procedure set out in the Legislative and Regulatory Reform Act 2006 ("the 2006 Act"). The Department for Environment, Food and Rural Affairs ("DEFRA") has produced an accompanying statement along with the revised LRO. The purpose of the LRO is to amend the licensing regime for the keeping of wild animals.

35.  We reported on the original version of the LRO in our 11th report of Session 2008-09 (HL Paper 135). In this report, we expressed concern that one of the proposals (to remove the mandatory requirement for inspections to be carried out in respect of certain licence applications) might remove a necessary protection - one of the preconditions that LROs must satisfy under section 3(2)(d) of the 2006 Act. In the accompanying statement DEFRA explains that a further consultation has now been carried out, which revealed little enthusiasm for that proposal. DEFRA has therefore removed this proposal from the LRO.

36.  This revision to the LRO meets the Committee's earlier concern. We are now content that the Order meets the tests in the 2006 Act and is appropriate to proceed as an LRO.

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