Cities and Local Government
Devolution Bill [HL]: Commons amendments
1. We reported on this Bill in our 1st Report
of the current Session,
and then on Government amendments in our 4th Report.
The Bill has now completed its passage through the House of Commons
and has returned with 87 Commons amendments which are expected
to be considered by the House on 12 January 2016. The amendments
which are all Government amendments include changes to existing
delegated powers and a number of new delegated powers. The Department
for Communities and Local Government has provided a supplementary
delegated powers memorandum.
Amendment 36 - Power to make provision about local
authority structures and boundaries
2. Amendment 36 is one of a number of amendments
to clause 16 of the Bill. Clause 16 confers a power on the Secretary
of State by regulations to make changes to the governance arrangements,
constitution and membership, and the structural and boundary arrangements
of local authorities in England.
3. In our report on the Bill we recommended that
clause 16 (clause 10 as it then was) should be made subject to
similar constraints and protections as apply to the powers to
establish combined authorities under Part 6 of the Local Democracy,
Economic Development and Construction Act 2009; for example, a
duty to consult all those affected and not just the relevant local
authorities. In their response the Government relied on the fact
that the regulations require the consent of all the local
authorities concerned to justify the lack of any constraints or
protections. The Minister stated in her letter of 29 June to the
Chairman of the Committee:
"However, the context for these regulations
will be the implementation of bespoke devolution deals, which
have been agreed between Government and the areas. In these circumstances,
the need for consent by all councils involved to the clause 10
regulations is sufficient safeguard that the fast tracking will
not remove inappropriately any essential constraint or protection."
4. Amendment 36 will insert provisions into clause
16 that have the effect of removing the requirement for the consent
of all the local authorities concerned in so far as the
regulations make provision about structural or boundary changes
in relation to a non-unitary district council area. In those circumstances,
it will be sufficient if only one of the relevant local
authorities consents. These provisions are time limited in that
they will expire at the end of March 2019.
5. The Government have previously justified the
breadth of the powers and the absence of any wider constraints
or protections in clause 16 by reference to the requirement for
the consent of all the local authorities concerned. Given
this and given that Amendment 36 significantly downgrades this
requirement in particular circumstances, we were surprised and
disappointed to find that the memorandum says nothing to justify
Amendment 36. The memorandum also says nothing about why the amended
provisions are only to apply for a limited three-year period.
This limitation appears to acknowledge that removing the consent
of all local authorities is to be regarded as exceptional, but
no indication is given as to why the Government consider it appropriate
exceptionally to relax the requirement during this period.
6. We remain of the view that the powers conferred
by clause 16 are inappropriate in the absence of the kinds of
constraints and protections which apply to combined authorities
under Part 6 of the Local Democracy, Economic Development and
Construction Act 2009. Amendment 36, which will have the effect
of weakening the consent regime under clause 16, serves only to
strengthen our view in this regard.
Amendment 53 - Sub-national transport bodies
7. Amendment 53 inserts a new Part 5A into the
Local Transport Act 2008 ("the 2008 Act"). The purpose
of the new Part is to enable the establishment of new strategic
transport bodies known as a sub-national transport bodies (STB).
Each STB will be established by means of regulations. In line
with other provisions of this Bill, the regulation-making powers
conferred by Part 5A are very wide and include powers to transfer
the transport functions of a local authority and those of other
public authorities to a STB (see sections 102J and 102K of the
8. By virtue of section 102T of the 2008 Act,
regulations under Part 5A are generally subject to the affirmative
procedure. In certain circumstances, however, only the negative
procedure is required. These include regulations under sections
102J and 102M transferring a local authority or public authority
function to a STB, where the regulations provide for that function
to be exercisable by the STB "for a limited period of time".
There is nothing in Part 5A of the 2008 Act which clarifies what
is meant by "a limited period of time", and the memorandum
offers nothing to help us, simply asserting that "the transfer
of a function on a temporary basis for a project or time limited
will not have a significant effect on the way a
local authority or a public authority will function" (paragraph 62).
"A limited period of time" could in fact be a matter
of weeks, months or years. In any event, we do not accept that
the impact of regulations which transfer transport functions for
a limited period of time (however short) is necessarily going
to be any less significant than where the regulations have effect
9. Accordingly, we do not consider that placing
a limit on the period for which regulations under section 102J
or 102K have effect justifies a reduction in the level of Parliamentary
scrutiny. In our view, the regulations should still be subject
to the affirmative procedure in these circumstances.
Education and Adoption
Bill: Government Response
10. We considered this Bill in our 10th Report
of this Session. The
Government have now responded by way of a letter from Lord Nash,
Parliamentary Under Secretary of State for Schools at the Department
for Education, printed at Appendix 1.
11. This Bill is to have its Second Reading on
22 December 2015. It seeks to improve the security and operation
of the immigration system by:
measures against illegal working,
enforcement of labour market rules,
illegal migrants access to services including housing and banking,
immigration officers' powers.
12. We have been disappointed by the quality
of the memorandum submitted by the Home Office to explain the
delegated powers in the Bill.
We have found that in several instances it does not fully explain
the intended purpose and likely use of the powers being conferred.
Furthermore, it does not deal with all of the powers conferred
by the Bill, as we would expect it to do;
and in one respect it is seriously misleading.
Clauses 10, 11, 16 and 43 - Power to apply provisions
outside England, or outside England and Wales
13. Clause 10(1) gives effect to Schedule 1,
which amends the Licensing Act 2003 to prohibit illegal working
in businesses conducting certain licensable activities. Schedule
1 itself applies only in relation to England and Wales, but clause
10(2) and (3) confers power to enable similar changes to be given
effect in Northern Ireland and Scotland by affirmative regulations.
This includes power to amend primary legislation and to confer
functions on any person other than Scottish or Northern Ireland
ministers, or a Northern Ireland department.
14. Similar powers are conferred in relation
to the application outside England (or outside England and Wales)
of other provision in the Bill:
clause 11, provision in Schedule 2 about private hire vehicles
may be given similar effect in Scotland and Northern Ireland;
clause 16, provision in clauses 13 to 15 about residential tenancies
may be applied or given similar effect in Wales, Scotland
and Northern Ireland;
clause 43, provision about local authorities' responsibilities
in relation to children may be applied or given similar effect
in Wales, Scotland and Northern Ireland.
15. In the case of each of the four powers, the
Home Office explains in the memorandum that there is a precedent
for the extension of provision outside England by affirmative
regulations under section 53 of the Immigration Act 2014. In the
light of that, we are content with the powers conferred
by clauses 10 and 11, particularly as the affirmative procedure
is to apply.
16. We note however that clauses 16(3)(a) and
43(3)(a) include power to amend the Bill itself:
applying provision in it outside England by regulations under
subsection (1), and
making similar provision outside England under subsection (2).
Clause 43(3)(b) is, moreover, exceptional
in that it enables the sub-delegation of legislative power to
17. We always look closely at powers which enable
unspecific amendments to be made in the very Act that confers
them, and we expect the Government always to justify powers of
that kind in express terms. We were therefore surprised to find
no reference at all on page 11 or page 25 of the memorandum to
the fact that clauses 16 and 43 include power to amend the Bill.
While we acknowledge that it might be expedient to have power
to amend provisions of the Bill in connection with their application
outside England under subsection (1), we do not understand why
the same facility is to be available when making similar
provision outside England under a separate power under subsection
18. We also examine with particular care powers
that enable an instrument to delegate legislative power, and we
again found the memorandum to be unhelpful in relation to clause
43. Paragraphs 124 to 130 do not even mention that subsection
(3)(b) confers a power of sub-delegation, and so there has been
no explanation why the sub-delegated powers might be exercised
by "any person" (who may not, apparently, be
Welsh, Scottish or Northern Ireland Ministers or a Northern Ireland
department). Moreover, nothing is said about the level of Parliamentary
scrutiny that is to apply on the exercise of the sub-delegated
powers. In short, there has been no explanation from the Government
about why these exceptional powers are thought necessary, or in
what way, by whom and subject to what Parliamentary control they
might be exercised. Although section 53 of the Immigration Act
2014 is cited as a "comparable" precedent, it does not
contain a power of sub-delegation.
19. In the light of those deficiencies, we
recommend that the powers conferred-
clauses 16(3)(a) and 43(3)(a) to amend provision in the Bill by
regulations under (respectively) clauses 16(2) and 43(2), and
clause 43(3)(b) in so far as the functions that may be conferred
include the power to make regulations,
are inappropriate, unless the Minister can satisfy
the House about why they are necessary and how they would be exercised.
In any event, where legislative power
is to be sub-delegated, it ought to be clear on the face of
the Bill who is to exercise the sub-delegated power and what arrangements
are to be made for its Parliamentary control.
Schedule 8, Paragraph 9 - Support for failed
20. Paragraph 9 of Schedule 8 inserts new
section 95A into the Immigration and Asylum Act 1999 ("the
1999 Act") to supersede provision currently made for the
support of "failed asylum-seekers". The new section
relies on wide regulation-making powers in subsections (1), (3)-(6),
(9) and (10), wider even than in the provision that the new section
is to replace (in section 4 of the 1999 Act). We were therefore
surprised to see that these regulations, which would set out the
arrangements for assisting those who are otherwise destitute,
would require only the negative procedure.
21. The Home Office explains this proposed level
of scrutiny in paragraphs 89 to 91 of the memorandum,
asserting that the negative procedure is the same level as that
"of the previous power to support failed asylum-seekers (section
4 of the 1999 Act) which will be repealed by this Bill".
We also note the final sentence of paragraph 89 of the memorandum:
"It is appropriate that regulations concerning the support
of failed asylum-seekers should be subject to the same scrutiny
procedures as [the] comparable regulations". While we would
not dissent from the latter statement, we believe that the Home
Office is mistaken about the former, because regulations under
section 4(5) of the 1999 Act require the affirmative
procedure (see section 166(5)(za) of that Act).
22. In any event, given that the purpose of the
regulations is to provide for relief from destitution, we consider
that the House will wish to scrutinise very carefully the nature
of the assistance to be provided and the terms on which it is
to be made available. We accordingly recommend that the affirmative
procedure should apply for regulations under new section 95A.
Schedule 9, Paragraphs 9 and 13 - Further support
for destitute persons
23. Paragraph 9 of Schedule 9 also introduces
new provision about destitute persons, by inserting new paragraphs
10A and 10B into Schedule 3 to the Nationality, Immigration and
Asylum Act 2002 ("the 2002 Act"), to deal with support
for (respectively) families and adult migrant care leavers who
fall into categories of persons to which the new section 95A of
the 1999 Act does not apply. Both of paragraphs 10A and 10B are
entirely enabling in character, in that they make no provision
that can have practical effect unless regulations are made under
them. But the regulations are again subject only to the negative
24. Once again, the Home Office seeks to justify
that level of scrutiny (this time in paragraph 102 of the
memorandum) by repeating their statement that existing provision
for failed asylum-seekers is made in negative procedure regulations
under section 4 of the 1999 Act. As we have already noted, that
statement is incorrect, because regulations under section 4(5)
must be affirmative. We therefore recommend that the affirmative
procedure should also apply to regulations under new paragraphs
10A and 10B.
25. At present, paragraph 15 of Schedule
3 to the 2002 Act confers a power to make specific kinds of amendments
to or about paragraph 1 by affirmative order. Paragraph 13
of Schedule 9 to the Bill very considerably amplifies that Henry
VIII power to enable an order to confer power (in new sub-paragraph
(d)) to provide by regulations for the support of a further class
of persons who are excluded from other forms of support. New sub-paragraphs
(e) and (f) enable an order to apply paragraph 1A of Schedule
3 to Wales and to make comparable provision for Scotland and Northern
Ireland. (Paragraph 1A is inserted by paragraph 3 of
Schedule 9 to the Bill and renders asylum-seekers and others ineligible
for certain forms of assistance under the Children Act 1989.)
26. We carefully examined paragraphs 92 to 102
of the memorandum to discover the reason for this very significant
amplification of an existing Henry VIII power, particularly
in view of its provision for sub-delegation of legislative power
and for extra-territorial extension. It was with surprise and
concern that we found that the memorandum is entirely silent about
these additional powers conferred by paragraph 13 of Schedule
27. In the light of that, we recommend that
the powers conferred by paragraph 13 are inappropriate, unless
the Minister can satisfy the House about why they are necessary
and how they would be exercised. In particular, if the provision
inserting new sub-paragraph (d) in paragraph 15 of Schedule
3 to the 2002 Act is to survive, it ought to be made clear on
the face of the Bill who is to exercise the sub-delegated power
and what arrangements are to be made for its Parliamentary control.
Schedule 10, Paragraph 1 - Power to prescribe
28. Schedule 10 introduces penalties in connection
with the operation of aircraft, with a view to enforcing measures
to reduce unlawful entry into the United Kingdom. Paragraph 1
inserts a new Part 1A into Schedule 2 to the Immigration Act 1971,
and paragraph 28 enables the Secretary of State to impose
financial penalties on owners and agents of aircraft where they
fail to take reasonable steps to secure that passengers are not
embarked or disembarked outside designated control areas at airports.
Sub-paragraph (6) provides for the penalty to be of such amount
as the Secretary of State considers appropriate; but "the
penalty must not exceed the prescribed maximum". In this
context, "prescribed" means "specified in regulations";
but the regulations are subject only to negative procedure.
29. This Committee almost invariably recommends
that instruments which specify a fine or other penalty, or a maximum
fine or penalty, that is not itself subject to an upper limit
set out in the enabling Act should require the affirmative procedure.
We did so most recently in our 1st Report of Session 2012-13 in
connection with the Groceries Code Adjudicator Bill,
and our 7th Report of Session 2013-14 in connection with the Littering
from Vehicles Bill.
30. This has been the long-standing approach
of the Committee. In paragraph 137 of the memorandum, the
Home Office seeks to justify the negative procedure by relying
on an existing power in subsection (2A) of section 32 of the Immigration
Act 1999. That subsection was inserted by Schedule 8 to the 2002
Act. At the time, the Committee observed, in relation to another
power conferred by the same Schedule:
"Where a bill contains a power to increase
penalties which is not limited to changes consequent on changes
in the value of money, the Committee would normally suggest that
affirmative procedure would be appropriate."
31. Since that time, the Committee has been firm
in its view that only the affirmative procedure is appropriate
for powers to specify maximum amounts of penalties in secondary
legislation (and without limitation on the face of the Bill).
32. We consider that the approach of the Committee
in this respect ought by now to be well understood by departments.
The reference to "changing circumstances" in paragraph 135
of the memorandum does not seem to us to signify an intention
that, once fixed, the maximum amount of a penalty would be increased
only to reflect changes in the value of money. We accordingly
recommend that the affirmative procedure should apply to the power
conferred by new paragraph 28(6) (inserted by paragraph 1
of Schedule 10) whenever it is exercised.
1 1st Report, Session 2015-16, HL Paper 8. Back
4th Report, Session 2015-16, HL Paper 20. Back
3rd Report, Session 2015-16, HL Paper 17, p 6. Back
10th Report, Session 2015-16, HL Paper 45. Back
7th Report, Session 2014-15, HL Paper 39. Back
1st Report, Session 2012-13, HL Paper 10. Back
7th Report, Session 2013-14, HL Paper: 49. Back
24th Report, Session 2001-02, HL Paper 138, para 10. Back