Sixth Report
Wales Bill
1. This Bill modifies the devolution arrangements
for Wales. Part 2 of the Bill amends the Government of Wales
Act 2006 (GOWA), among other things, to insert provisions which
allow rates of income tax payable by Welsh taxpayers in part to
be set by the Assembly. By virtue of clause 14, the income tax
provisions may only be brought into force if the majority of voters
in a referendum held throughout Wales vote in favour of it. Clause
12 enables Her Majesty by Order in Council to cause a referendum
to be held, and Schedule 1 to the Bill sets out provisions to
be contained in an Order in Council, which include specifying
the referendum question which is to appear on the ballot paper.
An Order in Council under clause 12 is subject to the affirmative
procedure, requiring the approval of both Houses of Parliament
and the Welsh Assembly.
2. The Wales Office has provided the Committee
with a delegated powers memorandum.[1]
In paragraph 25 of the memorandum, the Wales Office refer to
section 103 of GOWA as a precedent for clause 12. Section 103
is concerned with the provisions of GOWA which allow the Assembly
to pass Acts, and contains similar provision for an Order in Council
to cause the holding of a referendum about the commencement of
those provisions. Nothing is said in the memorandum to explain
why section 103 is considered an appropriate precedent, and why
the reasons which in that case justified leaving the referendum
question to be specified in subordinate legislation are also relevant
here. Changes to devolution arrangements are constitutionally
significant, and accordingly the House will want to satisfy itself
in relation to clause 12 that it is appropriate to leave matters
such as the referendum question to be specified in subordinate
legislation rather than on the face of the Bill.
Insurance bill [HL]
3. This Bill was presented on 17 July.[2]
Its principal purpose is to give effect, with some modifications,
to a recent report of the Law Commission and the Law Commission
for Scotland ("the Law Commissions") about various aspects
of the law relating to insurance contracts. However, Part 6 of
the Bill (clauses 17 and 18, and Schedule 2) amends the Third
Parties (Rights against Insurers) Act 2010 ("the 2010 Act").
Clause 17 contains the only delegated power in the Bill, about
which HM Treasury have submitted a memorandum that we have found
most helpful. [3]
4. As summarised in paragraph 6 of the memorandum,
the 2010 Act replaces two Acts of 1930 to enable payments of compensation
by insurers of insolvent wrongdoers to go to the victim rather
than the general creditors of the wrongdoer. The expression used
in the 2010 Act to denote the wrongdoer is "a relevant person".
Clause 17 of the Bill seeks to remedy a perceived deficiency
in the 2010 Act, which made no provision for any means by which
the descriptions of a "relevant person", defined in
some detail in sections 4 to 7, could be kept in step with anticipated
changes in insolvency law. The report of the Law Commissions,
Third Parties - Rights against Insurers (published in 2001)
which led to the 2010 Act, had recommended that those descriptions
should be capable of being amended by an affirmative procedure
order. But, because the 2010 Act defined a "relevant person"
in much greater detail than had the draft Bill attached to the
Law Commissions' report, it was thought that a power to amend
those sections by order would be unnecessary.
5. As is explained in paragraphs 27 to 29 of
the memorandum, it is now acknowledged that the omission of a
sufficiently wide amending power in the 2010 Act was unfortunate,
that the descriptions of a "relevant person" are not
sufficiently comprehensive, and that they are in time likely to
be overtaken by further changes in insolvency law (paragraphs
30 and 31). For that reason, the Government now wish to replace
the current narrow Henry VIII powers in section 19 of the 2010
Act (which at present apply only for the purposes of Northern
Ireland) with the wider and more durable version proposed in the
new section substituted by clause 17 of the Bill.
6. The purpose, nature and extent of the new
powers are well explained in paragraphs 32 to 43 of the memorandum,
as are the constraints that are to apply; and their exercise will
be subject to the affirmative procedure, as we would expect.
There is therefore nothing in the Bill that we would wish to draw
to the attention of the House.
Assisted Dying Bill [Hl]
7. This Private Member's Bill had its Second
Reading on 18 July. Its stated purpose is to enable competent
adults who are terminally ill to be provided, at their request,
with specified assistance to end their own lives.
Clauses 3(7), 4(7) and 7(2) - Powers to make regulations
8. The Bill confers delegated powers in clauses
3, 4 and 7 to make regulations subject to the negative procedure,
and, in the light of their subject matter, we do not consider
the delegations in clauses 4 and 7, or the negative procedure,
to be inappropriate. But we do have one reservation about the
regulation-making power conferred in clause 3. Subsection (1)
of that clause provides that a person has a clear and settled
intention to end their own life if they make a declaration to
that effect, which must be countersigned by two registered medical
practitioners - "the attending doctor" (see paragraph
(b)(i)) and "the independent doctor" (see paragraph
(b)(ii)). Subsection (7) enables the Secretary of State to specify
in regulations, "for the purpose of subsection (1)(b)(ii)",
the qualifications and experience which the independent doctor
must have in order to be "suitably qualified". While
we see nothing exceptionable about the delegation of provision
of this kind to negative procedure regulations, the power conferred
by clause 3(7) appears to us to have no purpose, because neither
clause 3(1)(b) nor any other provision of the Bill requires either
the attending doctor or the independent doctor to be "suitably
qualified".
Clause 8 - Codes of practice
9. One of the three conditions which, by virtue
of clause 1(2), must apply before a person who is terminally ill
may request, and lawfully be provided with, assistance, is that
the person has a clear and settled intention to end his or her
own life. Clause 8(1) enables the Secretary of State to issue
codes of practice about the assessment of whether a person has
such a clear and settled intention (three aspects are particularised
in paragraph (a)), and about such other related matters as the
Secretary of State thinks fit. Because that assessment plays
so important a part in the criteria for the application of the
Bill (see clauses 1(2)(a) and 3(3)(c)), the provision contained
in a code is likely to be of great interest.
10. We have however found it difficult to reach
a firm view about whether clause 8 involves a delegation of legislative
power (so that it is within our terms of reference). Nothing
on the face of the Bill in terms requires the attending doctor
or the independent doctor, when discharging their functions under
clause 3(3), to comply with, or even to have regard to, a code
issued under clause 8. In his opening speech on Second Reading,
Lord Falconer of Thoroton said that the codes were "to provide
guidance to doctors in discharging their roles under the Bill".[4]
If that is the case, the codes would merely be advisory and therefore
not legislative in character. But we notice that clause 9(1)(a)
requires the relevant Chief Medical Officer to "monitor the
operation of the Act, including compliance with its provisions
and any regulations or code of practice …".
11. That reference to "compliance"
leads us to conclude that the Bill as presently drafted could
be so construed that provision in a code is intended, at least
by implication, to be mandatory. (Indeed, clause 9(1)(a) itself
appears to equate provision in a code with provision in the Bill
itself and in regulations under it). We therefore regard the
power to issue codes as a delegation of legislative power to make
mandatory provision. On that footing, and particularly in view
of the potentially wide scope of the provision that may be included
under clause 8(1)(b), we consider that any code ought to undergo
a high level of Parliamentary scrutiny, and we therefore recommend
that a code should be subject to the draft affirmative procedure
before it may be issued.
Clause 13(4) - Provision for repeal
12. Apart from the provisions listed in clause
13(2), which come into force on enactment, the resulting Act is
to come into force two years after Royal Assent (see subsection
(3)). The effect of subsection (4) is that, during the period
of twelve months beginning twelve years after Royal Assent, the
Act "may be repealed by a resolution of each House of Parliament".
That is a very unusual provision. A public general Act may conventionally
be amended or repealed by legislation - for instance, it may be
repealed by another Act, or by a statutory instrument made under
powers conferred by an Act; or it may limit its own duration
by means of a "sunset" provision, to the effect that
the Act is repealed on a specified future date (sometimes subject
to a power to prolong its life for one or more periods by one
or more statutory instruments).
13. It is exceptional for Parliament to delegate
legislative power to a resolution of either or both Houses. We
are of course aware of rare instances where the convention is
departed from in specific and well recognised contexts - for example,
the resolution passed by the House of Commons under the Provisional
Collection of Taxes Act 1968 at the end of the budget statement,
or a resolution setting the salary or pension of a particular
office holder (see paragraph 3 of Schedule 5 to the Data Protection
Act 1998). We are also aware that a repeal provision not
dissimilar to that in clause 13(4) appeared in the Murder (Abolition
of Death Penalty) Act 1965, which began as a Private Member's
Bill dealing with a very controversial matter (in that case, section
4 provided for the Act's expiry on a specified future date unless
each House previously passed an affirmative resolution to the
contrary).
14. Although we do not go so far as to find
clause 13(4) to be inappropriate, we draw the unusual nature of
the proposed arrangements for repeal to the attention of the House,
so that it may consider whether more conventional provision for
the repeal of the resulting Act might be appropriate in the context
of this Bill.
Draft Legislative Reform
(Entertainment Licensing) Order 2014
15. This draft Legislative Reform Order (LRO)
was laid on 8 July 2014 by the Department for Culture Media and
Sport (DCMS), together with an Explanatory Document (ED) and an
Impact Assessment (IA).[5]
It is proposed to be made under section 1 of the Legislative
and Regulatory Reform Act 2006 ("the 2006 Act") which
allows a Minister to make provision by order for removing or reducing
any burden resulting directly or indirectly from legislation.
Content
16. DCMS state that the Order would extend the
range of exemptions for low-risk regulated entertainment from
the requirement to apply for a licence under the Licensing Act
2003. The exemptions proposed are limited to entertainments between
the hours of 8 am and 11 pm and generally to an audience of no
more than 500 persons.
17. The Order also deregulates events held by
"trusted providers" such as local authorities, schools[6]
and hospitals that are held on their own premises on the
grounds that such organisations are regularly audited for their
compliance with a range of other legislation, such as health and
safety requirements, and have a clear governance structure. They
will however have to apply separately for an alcohol licence in
the normal way and comply with any conditions it applies.
18. In addition, the Order proposes licensing
exemptions for travelling circuses because of their peripatetic
nature and for certain Olympic-style wrestling bouts if held before
an audience of less than 1,000 persons, and run under the auspices
of the governing body, British Wrestling. The reason for this
diverse range of items is that this LRO fills certain gaps left
by related primary legislation, the Live Music Act 2012, and
secondary legislation, the Licensing Act 2003 (Descriptions of
Entertainment) (Amendment) Order 2013 (SI 2013/1578).[7]
Costs and Benefits
19. The IA states that there will be administrative
savings from the reduced need to apply for licences and Temporary
Event Notices, for business and third sector organisations amounting
to £5.9 million and £3.8 million respectively over the
appraisal period. Although fees are set at full cost recovery
and therefore a decrease in activity would be cost neutral, local
authorities are also spared the cost of having to process some
licence applications without a fee which amounts to a saving of
at least £7.0 million over the appraisal period.
Consultation
20. Following specific consultation on the LRO
to which there were 89 responses, DCMS concluded that 53% were
supportive of the proposals, 22% offered qualified support, 19%
were opposed and 6% were undetermined. Most of the objections
focused on noise-related disturbance. The Government take the
view that limiting the audience to no more than 500 and restricting
the hours to between 8 am and 11 pm should prevent undue nuisance.
The Government also state that preliminary assessment of the similar
relaxations allowed by the Live Music Act 2012 indicate that there
has not been any negative impact.
21. We are satisfied that the Order meets
the tests set out in the 2006 Act and is not otherwise inappropriate
for the Legislative Reform Order procedure, and also that the
affirmative resolution procedure proposed by the Government is
appropriate.
1 http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-regulatory-reform-committee/bills-considered/ Back
2
Under a special procedure which is applied to certain Law Commission
Bills, this Law Commission bill has been referred to a Second
Reading Committee for consideration 29 July. Back
3
http://www.parliament.uk/business/committees/committees-a-z/lords-select/delegated-powers-and-
regulatory-reform-committee/bills-considered/ Back
4
HL Deb, 18 July 2014, col 776. Back
5
http://www.legislation.gov.uk/ukdsi/2014/9780111117675/contents Back
6
This exemption does not
include tertiary education establishments as experience shows
that events involving students are more prone to problems with
noise and alcohol (ED para 4.26). Back
7
Clause 58 of the Deregulation
Bill as introduced to the House of Lords seeks to deregulate the
exhibition of film in community premises for small audiences.
This constitutes the last piece of legislation to implement the
changes proposed following the DCMS consultation in 2011 on how
the requirements of the Licensing Act 2003 might be simplified. Back
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