Northern Ireland (Welfare
1. The House is to be asked to "fast-track"
this Bill so that its Second Reading and remaining stages may
all be taken on the floor of the House on Tuesday 24 November.
The Northern Ireland Office has submitted a brief delegated powers
memorandum. While this contained useful background information
on events leading up to the introduction of the Bill, it was not
at all helpful in explaining the one delegated power in the Bill.
2. Clause 1(1) enables provision to be made by
Order in Council ("the Order") "in connection with
social security and child support maintenance in Northern Ireland,
and arrangements under section 1 of the Employment and Training
Act (Northern Ireland) 1950". That broad power is supplemented
by subsection (3) so that the Order may, for instance, amend Acts
of Parliament or create criminal offences.
Sub-delegation of powers
3. There is also a power of sub-delegation in
subsection (2), enabling the Order to "confer power on the
Secretary of State or the Northern Ireland department to make
provision by order or regulations". It is this aspect
of clause 1 that concerns us most, and we are very surprised that
the memorandum is entirely silent about the Government's proposals
for exercising the sub-delegated powers.
4. The Order requires the affirmative procedure
(see subsection (5)) and the Government have published a draft
of it. As is clear from the Explanatory Notes for the Bill, the
Order is modelled closely on the provisions of the Welfare Reform
Bill ("the Assembly Bill") that remains before the Northern
Ireland Assembly ("the Assembly"); but there are some
important differences that we will refer to later.
5. Although, strictly, it is the Northern Ireland
(Welfare Reform) Bill and not the draft Order that falls within
our remit, we do not see how we can sensibly advise the House
about the power conferred by the Bill without considering the
way in which the Government intend to exercise it in the Order,
particularly in view of the facility to sub-delegate legislative
power. The Order will confer numerous and very extensive delegated
powers in connection with the introduction in Northern Ireland
of new social security benefits, and the imposition there of a
"benefit cap" to limit the total amount of benefits
payable to an individual or couple. Henry VIII powers are also
sub-delegated to enable the amendment of Acts by the regulations.
6. In connection with the sub-delegated powers,
Article 3 of the Order would:
the Secretary of State to exercise the legislative powers sub-delegated
by the Order (instead of the Northern Ireland department) and
enable him to exercise certain other powers conferred elsewhere;
for that transfer of legislative power to continue until such
time as he may appoint by order subject to negative procedure;
to negative procedure (in both Houses) the level of scrutiny to
be applied to the exercise of any sub-delegated powers that would
otherwise have required the affirmative procedure (if before the
We observe in this context that, while clause 3(3)
of the Bill precludes the making of further Orders after the end
of 2016, that does not limit the duration of any Order made before
7. Further reductions in the level of scrutiny
are effected by provisions elsewhere in the Order, when those
provisions are compared with their equivalents in the Assembly
Bill. For instance, Article 49 of the Order requires the negative
procedure for nearly all regulations made under Part 2, which
is about universal credit; but clause 44 of the Assembly Bill
would have required the affirmative procedure on first exercise
of a dozen or more of those powers.
8. While we recognise that there may in the present
case be a pressing political need for speedy enactment of the
Bill, we are bound to acknowledge that this has unfortunate consequences
for proper scrutiny, whether by the Assembly or both Houses, of
the very extensive provision that will be made in regulations
under the Order. We would normally expect powers of this significance
to be conferred in properly scrutinised primary legislation, on
which we could report to the House, so that it would have the
opportunity to amend any powers that were found to be inappropriate.
9. Relegating so much provision to the Order
will, however, allow for only very limited discussion of its text
during the debate on its approval motion. It is not subject even
to the type of "super-affirmative" procedure that Orders
in Council under section 85 of the Northern Ireland Act 1998 must
undergo. There will be no opportunity to amend the Order: the
House will have the choice only to take it or leave it. Furthermore,
Parliamentary discussion even of the Bill is to be truncated by
the fast-track procedure, so that provision which ought to be
in the Bill itself is being left to the Order. In the light
of that, we find it very surprising that the policy in the Order
appears to be to reduce, rather than to enhance, the level of
scrutiny to be applied to the exercise of the sub-delegated powers.
We do not regard this as satisfactory.
10. Unfortunately we have received no assistance
whatever from the memorandum about the nature of the provision
to be made in the Order. We do not know, for instance, why the
Bill itself could not have provided for the date on which the
Secretary of State must cease to exercise the sub-delegated powers.
If necessary, that date could be extendable by an order subject
to affirmative procedure, of the kind that has featured on several
occasions before in Acts relating to Northern Ireland. As it
is, the Order leaves the duration of the Secretary of State's
exceptional powers entirely in his own gift, subject only to negative
procedure control and only when he takes the initiative to make
an order. That too appears to us to be extremely unsatisfactory.
11. We draw these matters to the attention
of the House so that it may seek from the Minister the explanations
about the Government's intentions as to the exercise of sub-delegated
powers, and their associated scrutiny arrangements, that are not
provided in the memorandum.