Henry VIII powers and the Sewel Convention
10. The Delegated Powers and Regulatory Reform
Committee will no doubt report to the House on the proposals for
delegated powers contained in the Bill. There are provisions for
a number of Henry VIII powers in the Bill, all of which are subject
to the affirmative procedure. Some of those powers are relatively
limited.[5] Others are
much broader in scope. We do not intend to comment on the detail
of those powers, although we urge the House, as always, to ensure
that the need for such powers is justified and that their scope
is limited to the minimum necessary to achieve their objectives.
11. We wish to draw the attention of the House
to a wider point in relation to those powers. Clauses 10, 11,
15 and 39-42, which relate to illegal working in respect of licensed
premises and private-hire vehicles; orders for possession of properties;
and the transfer between local authorities of responsibility for
relevant children, only have effect (in some cases because the
legislation to which they make amendments only has effect) in
relation to England or England and Wales.
12. However, clauses 10, 11, 16 and 43 provide
regulation-making powers so that the provisions made or given
effect by clauses 10, 11, 15 and 39-42 can in substance be extended
to Northern Ireland and Scotland (and, where relevant, Wales).
The formula used in clauses 10, 11, 16 and 43 is that the Secretary
of State "may by regulations make provision" in respect
of Northern Ireland and Scotland (and, where relevant, Wales)
which "has a similar effect to" the English provisions.
Clauses 11, 16 and 43 are Henry VIII powers: regulations made
under them can "amend, repeal or revoke any enactment".[6]
13. The UK Government's view is that clauses
10, 11, 16 and 43 do not engage the Sewel Convention, so Legislative
Consent Motions (LCMs) are not required.[7]
We note that this view has been disputed by some interested parties.
For example, the Law Society of Scotland has stated that regulations
authorised by clause 10 "would alter … licensing law,
which is a devolved matter", and that "the effects of
the proposals are not incidental to devolved matters" so
that "consultation with a view to seeking the legislative
consent of the Scottish Parliament should be initiated".[8]
14. The House may wish to ask the Government
to justify its view that Legislative Consent Motions are not required
for clauses 10, 11, 16 and 43.
15. The power to make regulations that have "a
similar effect to" provisions contained in the Immigration
Bill is vague. In its Delegated Powers Memorandum, the Government
seeks to make the case for the use of secondary legislation in
this context in the following way:
"In order to make the provisions relating
to private hire etc. licensing effective in Scotland and Northern
Ireland it will be necessary to make some detailed modifications
of Scottish and Northern Ireland legislation. Also there are specific
provisions in both Scotland and Northern Ireland which may require
consequential amendments to make the scheme effective. This will
require detailed input from the devolved administrations, which
might itself be consequential on Parliament's views on the amendments
relating to England and Wales. It is considered appropriate for
the changes for Scotland and Northern Ireland to be made in secondary
legislation, therefore, once Parliament has approved the main
concept of the scheme with reference to the existing amendments
suggested to private hire etc. licensing legislation."[9]
16. It is not clear why, given that primary legislation
has been deemed to be appropriate in England or England and Wales,
secondary legislation is considered to be appropriate in Northern
Ireland and Scotland (and, where relevant, Wales). Although regulations
made under clauses 10, 11, 16 and 43 must be made under the affirmative
procedure, the degree of parliamentary scrutiny that they will
receive is less than that which primary legislation attracts.
If, as the Government acknowledges, the Bill's provisions will
need to be adapted to the legislative and policy environments
in the devolved nations, legitimate concerns arise in relation
both to the degree of scrutiny that the subsequent regulations
will attract and the discrepancy between the levels of scrutiny
to which those provisions relating to England (set out in primary
legislation) and those relating to other areas of the UK (to be
detailed in secondary legislation) will be subjected.
17. The House may
wish to consider whether the differential legislative approaches
adopted in respect of England and other parts of the UK, and the
difference in the degree of scrutiny that this implies, are appropriate.
5 See clause 13 and schedule 3, para 1; clause 29 Back
6
Clause 10 permits the amendment, repeal and revocation of enactments
of the Scottish Parliament and the National Assembly for Wales,
but not acts of the UK Parliament. Back
7
Explanatory Notes to the Immigration Bill, Annex B. Back
8
Written evidence to Public Bill Committee on the Immigration
Bill: http://www.publications.parliament.uk/pa/cm201516/cmpublic/immigration/memo/ib22.htm
Back
9
Home Office, Immigration Bill: Delegated Powers Memorandum
(1 December 2015) para 23. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/482043/2015-12-01_Immigration_Bill_Delegated_powers_memo_-_Lords.pdf
[accessed 22 December 2015].This passage concerns clause 11. A
similar case is made elsewhere in the Delegated Powers Memorandum
in respect of clauses 10, 16 and 43. Back
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