Northern Ireland (Welfare Reform) Bill - Delegated Powers and Regulatory Reform Committee Contents

Fourteenth Report

Northern Ireland (Welfare Reform) Bill

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:

·  require 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;

·  provide for that transfer of legislative power to continue until such time as he may appoint by order subject to negative procedure;

·  reduce 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 Assembly).

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 then.

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.

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