Infrastructure Bill [HL], Serious Crime Bill [HL], Armed Forces (Service Complaints and Financial Assistance) Bill [HL] - Delegated Powers and Regulatory Reform Committee Contents

Second Report

Infrastructure Bill [HL]

This Bill had its Second Reading on Wednesday 18 June. It confers powers to make delegated legislation in connection with the establishment of strategic highways companies to be responsible for the road network (Part 1); in a number of areas concerned with the planning system and land ownership (Part 3); and in connection with a statutory scheme for community shared ownership of renewable electricity generation facilities (Part 4). Five Government departments are concerned in the various areas of policy to be enacted by the Bill, and they have together prepared a memorandum for the Committee, explaining the delegations of legislative power and the associated scrutiny procedures.[1] There are only two aspects of the Bill that we wish to refer to below.

Clause 14 (and clauses 13 and 28) - Powers to "modify" Acts

2.   In connection with provision made by or under Part 1 of the Bill, clause 14 confers power on the Secretary of State to make (by regulations) consequential, supplementary, incidental, transitional, transitory or saving provision. By virtue of subsection (2), the power is a Henry VIII power, in that it may be exercised so as to amend, repeal or otherwise modify an Act. It is not clear to us (and paragraph 46 of the memorandum does not explain) what, apart from a textual amendment, is contemplated by the words "otherwise modify". Are they, for instance, intended to mean that provisions of an Act may be applied with modifications? Or is it envisaged that such provisions might be "glossed" in subordinate legislation, so that they are to have a different effect? Non-textual modifications of primary legislation are capable of making changes which are no less significant than textual amendments. Moreover, the regulations are, by virtue of clause 29(2)-(4), to be subject to the negative procedure unless they amend or repeal an Act (but not, apparently, if they "otherwise modify" one). The memorandum does not explain the reason for that discrepancy. Finally, the power extends to the amendment, repeal or 'other modification' of Acts "whenever passed or made", and so would enable the amendment etc. of Acts passed in future Parliaments. (The power does not explicitly extend to the Act that will emerge from this Bill, and we assume for present purposes that the Government do not intend it to do so.) Again, the memorandum is silent about the perceived need for a power to amend or modify future Acts. Powers in identical terms to those in clause 14(2) are conferred by clause 13(5) (to which the affirmative procedure applies in all respects) and clause 28, and in the Serious Crime Bill which we deal with in paragraphs 12 and 13 below; and the powers are similarly unexplained in those cases too.

3.   We are surprised that none of those important features of such significant delegations of legislative power (which paragraphs 46 and 109 of the memorandum dismiss as "standard provision") or of the arrangements for their control by Parliament has been expressly explained and supported in the relevant memorandum. On several past occasions, we have indicated that we expect that to be done for powers in Bills enabling the amendment of future Acts. Only last Session, we questioned the purpose and effect of powers to "modify" Acts: see our 12th Report in Session 2013-14 in relation to the Transparency of Lobbying, Non-party Campaigning and Trade Union Administration Bill, and our 27th Report concerning the Commons' amendments to the Care Bill. In the first of those instances, the Bill was amended to extend the requirement for the affirmative procedure to instruments which "modify" primary legislation; and in the latter case, amendments were made to make clear that the power to "otherwise modify" an Act was intended to mean "apply with modifications" (and to apply the affirmative procedure to that power).

4.   We draw these powers, and the deficiencies in the explanations for them, to the attention of the House. We recommend that, unless the reason for their inclusion and their intended purpose can be fully explained to the satisfaction of the House, the words "otherwise modify" and "(whenever passed or made)" should be omitted from clauses 13(5), 14(2) and 28(2); and that, if the words "otherwise modify" are retained in clause 14 or 28, the same words should be inserted in clause 29(2)(c) so that regulations made under that clause in reliance on them will require the affirmative procedure.

Clauses 26 and 27, Schedule 5 - Community electricity right

5.   Clause 26 (supplemented by clause 27) is entirely enabling in character, and confers extensive powers for purposes connected with giving individuals resident in a community, and groups connected with a community, rights to buy a stake in a nearby renewable electricity generation facility. The intention is that the powers should be available to the Government in case the "voluntary approach" described in paragraph 78 of the memorandum should fail. Subsection (1) enables regulations to provide for the basic "right to buy"; regulations under subsection (2) will be concerned with provision about the operator of the facility; subsection (3) confers power to require the provision of information in connection with the matters listed in paragraphs (a) to (e); and subsection (4) enables regulations to be made about enforcement. Subsection (5) enables regulations to make associated modifications to generation licence conditions and exemptions. All regulations made under clause 26 will be affirmative, except those under subsection (5)(b) regarding licence exemptions, which are set out in instruments that themselves require only negative procedure.

6.   Although only enabling in character, we do not regard clause 26 as by any means a skeleton provision. In addition to clause 27, it is supplemented by Schedule 5, which considerably amplifies the nature of the provision that must, and the provision that may, be made under clause 26(1)-(3). For instance, if "right to buy" regulations are made under subsection (1), Part 1 of the Schedule requires that they specify what kinds of facility are to qualify, how the facility and its promoters (and the relevant communities, individuals and groups who may exercise the right) are to be identified, as well as what kinds of stakes may be bought in what kind of facility. Similarly, Parts 2 and 3 of Schedule 5 contain additional provision about the contents of regulations made under, respectively, subsections (2) and (3) of clause 26. The Schedule contains nothing for subsection (4), but we are accustomed to seeing in Bills fairly general powers about enforcement, exercisable by affirmative regulations, particularly where (as here) they include power to provide, in cases of contravention, for financial penalties that are unlimited on the face of the Bill.

7.   We accordingly do not find the delegations in clause 26, or the arrangements for Parliamentary scrutiny of the exercise of the powers, to be inappropriate. But we are conscious that, even with the amplified outline of the regulatory framework that Schedule 5 affords, the House will not begin to get a clear idea of the real shape and content of what would be a novel statutory regime until the Government provide details of the provision that would appear in instruments made under clause 26. We therefore express the hope that the Government will make available to the House, preferably before Report Stage, as much as possible of the provision that would be included in the regulations.

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