Status of Workers Bill [HL]
6.This Bill makes provision for the creation of a single status for workers by amending the meaning of “employee”, “worker”, “employer” and related expressions in the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”), the Employment Rights Act 1996 (“the 1996 Act”) and other legislation.
7.The Bill contains identical amendments to the 1992 Act and the 1996 Act allowing the Secretary of State by regulations to designate as “workers” other persons engaged in work, and to designate as “employers” other entities engaged in the provision of work, after consultation with organisations which appear to the Secretary of State to represent such persons and entities.
8.However, the power conferred by clause 1(4) (which substitutes a new section 295(6) of the 1992 Act) does not provide for the regulations to be made by statutory instrument or to be subject to any parliamentary procedure. This may have been a drafting oversight.
9.The only general provision in the 1992 Act relating to the making of regulations is section 293, which provides:
“(1) The Secretary of State may by regulations prescribe anything authorised or required to be prescribed for the purposes of this Act.
(2) The regulations may contain such incidental, supplementary or transitional provisions as appear to the Secretary of State to be necessary or expedient.
(3) Regulations under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”
10.The purpose of section 293 is to ensure that where the Act provides for something to be “prescribed”, it is construed as a reference to the thing being prescribed by regulations made by statutory instrument (with the negative procedure applying). There are various provisions of the 1992 Act that refer to things being prescribed, without saying anything further about how the prescribing is to take place: hence the need for section 293. However that provision does not assist here because new section 295(6) does not use the term prescribed but refers to the Secretary of State making regulations. Where that happens elsewhere in the 1992 Act, there is specific provision for the regulations to be made by statutory instrument subject to a parliamentary procedure.
11.The problem may have arisen because the words used in clause 1(4) to insert new section 295(6) of the 1992 Act are identical to those used in the amendment made by clause 2(2), which substitutes new section 230(6) of the 1996 Act. In the latter case, the reference to the making of regulations by the Secretary of State works because section 236 of the 1996 Act contains the expected general provision about regulation-making powers and the applicable parliamentary procedure:
“(1) Any power conferred by any provision of this Act to make any order (other than an Order in Council) or regulations is exercisable by statutory instrument.
(2) A statutory instrument made under any power conferred by this Act to make an Order in Council or other order or regulations … is subject to annulment in pursuance of a resolution of either House of Parliament.”
12.In our view the power to make regulations conferred by clause 1(4) (in so far as it substitutes a new section 295(6) of the 1992 Act) is deficient in not providing for the regulations to be made by statutory instrument or to be subject to any parliamentary procedure. In our view, the regulations should be made by statutory instrument, with the negative procedure being appropriate.