Cities and Local Government Bill; Education and Adoption Bill; Immigration Bill - Delegated Powers and Regulatory Reform Committee Contents

Seventeenth Report

Cities and Local Government Devolution Bill [HL]: Commons amendments

1.  We reported on this Bill in our 1st Report of the current Session,[1] and then on Government amendments in our 4th Report.[2] 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.[3]

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:[4]

    "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 2008 Act).

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 period … 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 indefinitely.

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.[5] 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.

Immigration Bill

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:

·  introducing measures against illegal working,

·  enhancing enforcement of labour market rules,

·  denying illegal migrants access to services including housing and banking, and

·  amplifying 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.[6] 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;[7] 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:

·  under clause 11, provision in Schedule 2 about private hire vehicles may be given similar effect in Scotland and Northern Ireland;

·  under clause 16, provision in clauses 13 to 15 about residential tenancies may be applied or given similar effect in Wales, Scotland and Northern Ireland;

·  under 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:

·  when applying provision in it outside England by regulations under subsection (1), and

·  when 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 "any person".

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 (2).

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-

·  by 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

·  by 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 asylum-seekers

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 procedure.

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 9.

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 maximum penalty

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,[8] and our 7th Report of Session 2013-14 in connection with the Littering from Vehicles Bill.[9]

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."[10]

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

2   4th Report, Session 2015-16, HL Paper 20. Back

3  Back

4   3rd Report, Session 2015-16, HL Paper 17, p 6. Back

5   10th Report, Session 2015-16, HL Paper 45.  Back

6  Back

7   7th Report, Session 2014-15, HL Paper 39.  Back

8   1st Report, Session 2012-13, HL Paper 10. Back

9   7th Report, Session 2013-14, HL Paper: 49.  Back

10   24th Report, Session 2001-02, HL Paper 138, para 10. Back

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