Wellbeing of Future Generations Bill [HL]
13.This Bill makes provision for requiring public bodies to act in pursuit of the United Kingdom’s environmental, social, economic and cultural wellbeing by meeting wellbeing objectives, publishing future generations impact assessments, accounting for preventative spending, and through public services contracts. It establishes a Commissioner for Future Generations for the United Kingdom; and it establishes a Joint Parliamentary Committee on Future Generations.
14.Clause 42 stipulates that all the regulations made under the Bill are subject to the affirmative procedure, apart from regulations made under clause 41 allowing the Secretary of State to make consequential, incidental, supplemental, transitional and saving provision. Regulations under clause 41 contain a Henry VIII power allowing the Secretary of State to amend or repeal any Act of Parliament, past or future. And yet such regulations will only be made under the negative procedure.
15.Our guidance to government departments says that, in the case of any Henry VIII power to make incidental, consequential or similar provision, the usual presumption applies - that such powers should be subject to the affirmative procedure. Where they are not, the Department’s delegated powers memorandum should explain why not. Likewise, where the power extends to the amendment of future Acts, the memorandum should explain why such a power is necessary. We expect a convincing case to be made for a power to use secondary legislation to amend future primary legislation. While it may be reasonable to amend past Acts to ensure they fit with a new Bill, future legislation should be capable of taking account of the Bill’s provisions when it comes to be enacted.
16.This being a private member’s bill, there is no departmental delegated powers memorandum. Accordingly, the House may wish to seek an explanation from the sponsor of the Bill:
(a)why the Henry VIII power in clause 41 is subject only to the negative procedure; and
(b)why clause 41 contains a power to amend future primary legislation.