Third Report
Child Poverty Bill
Introduction
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
Introduction
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.
CONSUMER EMISSIONS (CLIMATE
CHANGE) Bill [HL]
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).
DAMAGES
(ASBESTOS-RELATED CONDITIONS) BILL [HL]
LIVE
MUSIC BILL [HL]
REHABILITATION OF OFFENDERS
(AMENDMENT) Bill [HL]
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.
DRAFT LEGISLATIVE REFORM
(DANGEROUS WILD ANIMALS) (LICENSING) ORDER 2010
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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