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HOUSE OF LORDS

Delegated Powers and Regulatory Reform Committee

1st Report of Session 2003-04

Special Report

Sessions 2001–02 and 2002–03:

The Work of the Committee

Ordered to be printed 10 December and published 17 December 2003

London : The Stationery Office Limited £price

HL Paper 9

The Select Committee on Delegated Powers and Regulatory Reform The Delegated Powers and Regulatory Reform Committee is appointed by the House of Lords in each session with the orders of reference “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate level of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001; and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments”.

Current Membership The Members of the Delegated Powers and Regulatory Reform Select Committee are:

Lord Brooke of Sutton Mandeville Baroness Carnegy of Lour Lord Dahrendorf (Chairman) Lord Desai Lord Harrison Lord Mayhew of Twysden Lord Temple-Morris Lord Tombs Lord Wigoder

Publications The Committee’s reports are published by The Stationery Office by Order of the House. All publications of the Committee are on the internet at http://www.parliament.uk/parliamentary_committees/dprr.cfm

General Information General information about the House of Lords and its Committees, including guidance to witnesses, details of current inquiries and forthcoming meetings is on the internet at http://www.parliament.uk/about_lords/about_lords.cfm

Contacts for the Delegated Powers and Regulatory Reform Committee If you have any queries regarding the Committee and its work, please contact the Clerk to the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020 7219 3103/3233. The fax number is 020 7219 2571. The Committee’s email address is [email protected]

SPECIAL REPORT

CHAPTER 1: INTRODUCTION

1. Over recent decades, Government activity has become increasingly complex and, as a result, delegated (or secondary) legislation has increased both in volume and importance. Parliament recognises that detailed implementation of legislation needs to be undertaken by powers delegated (to the executive, the National Assembly for Wales or some other body or person) by primary legislation if the Parliamentary process is to remain workable. It is also recognised, however, that a principal function of Parliament is to scrutinise the ambit of powers granted by primary legislation and to provide some control over their exercise. The Delegated Powers and Regulatory Reform Committee contributes to the effective performance of that function.

Historical note

2. In February 1992, the Select Committee on the Committee Work of the House, under the chairmanship of Lord Jellicoe, - “the Jellicoe Committee”- noted that “in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion”.1 The Jellicoe Committee recommended the establishment of a delegated powers scrutiny committee in the House of Lords which would, it suggested, “be well suited to the revising function of the House”.2 As a result, the Select Committee on the Scrutiny of Delegated Powers was appointed in the following session, initially as an experiment for a limited period. It was established as a sessional committee from the beginning of Session 1994–95.

3. Also in Session 1994–95, following the passage of the Deregulation and Contracting Out Act 1994 (“the 1994 Act”), the Committee was given the additional role of scrutinising deregulation proposals under that Act. As a result, the name of the committee was changed to the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 (“the 2001 Act”) was passed which expanded the application of the deregulation order-making power under the 1994 Act. After a transitional period during which parliamentary scrutiny of a small number of remaining proposals for deregulation orders was completed, all deregulation proposals are now brought under the 2001 Act. With the passage of the 2001 Act, the committee’s name was further amended to its present form, the Select Committee on Delegated Powers and Regulatory Reform.

Terms of reference

4. The Committee’s current terms of reference are that it is appointed “to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under the Regulatory Reform Act 2001;

1 Session 1991-92, HL Paper 35-I; para 133 of the report of the Jellicoe Committee is set out at Appendix 1. 2 Ibid.

DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 2

and to perform, in respect of such documents and orders and subordinate provisions orders laid under that Act, the functions performed in respect of other instruments by the Joint Committee on Statutory Instruments”.3

Purpose of this Report

5. Since its establishment, it has been the practice of the Delegated Powers and Regulatory Reform Committee to publish periodically a Special Report describing the work and the evolving working methods of the Committee. Our last report on the Committee’s work was published in May 2001.4 This Report covers Sessions 2001–02 and 2002–03.

Membership

6. The Committee was originally established with eight members. (The Jellicoe Report had recommended “a small committee” of seven or eight members.)5 At the beginning of Session 1998–99, that number was increased to 10 members. In our Special Report for that session we commented that “We believe this to be the maximum number of members to enable the Committee to continue to operate with the effectiveness and efficiency which the House both expects and deserves”.6 In the following session, membership was reduced to nine and it remains at that level. The Committee has worked well with nine members and, in keeping with its previous practice, operates in a non-partisan way. Issues are often strongly debated in our deliberative sessions but, we have, so far, always been able to reach a conclusion acceptable to all members of the Committee. Since its establishment, the Committee has never needed to divide.

Rotation rule

7. In order to allow regular turnover of membership of committees in the House of Lords, a “rotation rule” applies. The general rotation rule is that committee members retire after three sessions’ service, with members being eligible to be reappointed after a lapse of one session. Until July 2001, the general rotation rule applied to the Delegated Powers and Regulatory Reform Committee. Following a recommendation of the Procedure Committee,7 the rotation rule applicable to this Committee was increased to four years.

Meetings

8. The Committee usually meets on Wednesday mornings at 10.30 am. We meet about every two weeks, although the frequency changes to meet the fluctuation in workload throughout the session. In Session 2001–02, we met on 18 occasions and, in Session 2002–03, we met on 19 occasions.

3 3rd Report, Procedure Committee, Session 2001–02. 4 26th Report, Session 2000–01, HL Paper 83. 5 Session 1991–92, HL Paper 35–I, para 133(vi). 6 29th Report, Session 1998–99, HL Paper 112, para 8. 7 1st Report, Procedure Committee, Session 2001–02, HL Paper 9. The Report was approved by the House

on 17 July 2001.


Evidence

9. Almost all the evidence we receive is written. Very occasionally we take oral evidence. For example, in the last session, when considering the proposal for the draft Regulatory Reform (Business Tenancies)(England and Wales) Order 2003, we took evidence from officials of the Office of the Deputy Prime Minister.8 The evidence we receive, whether written or a transcript of oral evidence, is published with our reports.9

Relations with other Parliamentary Committees

House of Commons Regulatory Reform Committee

10. The House of Commons has no committee dealing with delegated powers in primary legislation to mirror the delegated powers aspect of the work of this Committee. However, the House of Commons Regulatory Reform Committee has similar functions to the Committee with regard to Regulatory Reform Orders. We co-operate closely with the Commons Committee, whilst operating entirely independently of it. There is a complete exchange of papers between the two committees. We also co-operate in other ways. For example, we had the benefit of a demonstration of gaming machines which had been organised by the Commons Committee when we were each considering the draft Regulatory Reform (Gaming Machines) Order 2003. We find our close relationship with the Commons Committee to be of considerable assistance.

Other Parliamentary Committees

11. We take a keen interest in the work of the Joint Committee on Human Rights and of the Lords Constitution Committee. We also look forward to the establishment of the new Lords Committee on the Merits of Statutory Instruments which, we believe, will complement the work of this Committee.

Visits

12. During Session 2001–02, we received visits from Dr Elizabeth Anne Kernohan MP, the Honourable Malcolm Jones MLC and Mr Russell Keith, Manager, all of the Regulation Review Committee of the New South Wales Parliament. In November 2003, Senator Sharon Carstairs, Government Leader in the Canadian Senate, attended one of our meetings. We welcome the opportunity such visits provide to compare the work of the Committee with practice elsewhere.

13. Following a visit by the Clerk to the National Assembly for Wales on 17 March 2003, we were visited on 10 September by Ms Olga Lewis, Clerk, and Mr John Turnbull, Legal Adviser, both of the Legislation Committee of the National Assembly. In November, the Committee was pleased to receive an invitation from Mr Glyn Davies AM, Chairman of the Legislation Committee, to visit the National Assembly. We hope to take up that invitation early next year.

8 4th Report, Session 2002–03, HL Paper 22. 9 We do not publish Statements accompanying proposals for draft Regulatory Reform Orders which can be

found on the following Cabinet Office website: http://www.cabinet-office.gov.uk/regulation/act/index.htm.


Reports

14. A list of the Committee’s reports for each of the sessions covered by this Special Report is set out in Appendices 2 and 3 below.


CHAPTER 2: DELEGATED POWERS

Workload

Bills on introduction

15. During Session 2001–02, the Committee considered 55 bills and, in Session 2002–03, 57 bills. When bills are introduced into the House,10 the Committee aims to report before the committee stage begins,11 although, more often than not, we have been able to report before the second reading. In Session 2001–02, we reported on 45 bills before second reading and 10 bills after second reading but before committee stage; in Session 2002–03, we reported on 44 before second reading and 13 bills after second reading. Occasionally we report on a bill twice, both before the second reading and before committee stage. An example is the Waste and Emissions Trading Bill [HL] in the last session, where we reported before the second reading in order to draw to the attention of the House general issues relating to the extent of the delegation under the bill and to the introduction of new criminal offences and penalties.12 We made a second report before the committee stage in which we set out our conclusions, in the usual way, about the individual delegated powers contained in the bill.13

16. When the Committee makes a recommendation that a bill should be amended or suggests to the House that it may wish to seek further explanation from the Government about an aspect of a bill, it is our practice to print the relevant part of our reports in bold to indicate this. The report is also mentioned in an italic note in the second half of the House of Lords Minutes of Proceedings when the bill is put down for its next stage on the floor of the House (usually this will be the committee stage) so as to draw the report to the attention of members of the House. On occasions we have had to work to very tight deadlines (usually when reporting on amendments),14 convening in the morning to consider amendments which are to be taken in the House that afternoon or the following day.15 When this happens we provide members of the House known to have an interest in the bill with an extract of a forthcoming report or a letter setting out the Committee’s views. If the latter, it is later published in a Committee report for the record.

10 Occasionally, due to the legislative timetable, it has been necessary for the Committee to consider a bill in

the form it has been introduced into the Commons. See, for example, the Committee’s report on the Anti-Terrorism, Crime and Security Bill, 7th Report, Session 2001–02, HL Paper 45.

11 The Jellicoe Report (see n 1 above) suggested that “the Committee should report to the House before the beginning of the committee stage proper”, para 113 (iv).

12 1st Report, Session 2002–03, HL Paper 9. 13 2nd Report, Session 2002–03, HL Paper 20. 14 See para 19 below. 15 For example, in the case of the Police (Northern Ireland) Bill [HL], at Lords Consideration of Commons

Amendments, the Committee reported on 2 April and the bill was taken the following day. The Government were given an early copy of the Committee’s report and, as a result, manuscript amendments were tabled by the Government to meet the recommendations of the Committee (HL Hansard, 3 April 2003, col 1435).


Government amendments

17. Originally the Committee considered only those delegated powers contained in bills on their introduction (and not those later added by way of amendment). We noted in our report on the work of the Committee in Session 1993–94,16 however, that during the course of the Railways Bill (in Session 1992–93) Lord Tordoff suggested that there should be a mechanism by which the advice of the Committee could be provided to the House on delegated powers in amendments. Although we expressed our willingness in principle to consider amendments, in our Special Report of Session 1995–96 we said that we would continue our general practice of not reporting on them (because of the burden of work and the time pressure that they would entail) but hoped that the Government would draw our attention to any specific amendments that raised significant issues. In Session 1997–98, given that the views of the Committee had been sought about amendments on a small number of occasions, we decided, for the first time, to report on amendments.

18. In 2000, the Procedure Committee recommended that “in order to improve the scrutiny of legislation, the House should whenever possible have the benefit of a further report from the [Delegated Powers and Regulatory Reform] Committee, if appropriate, on any significant amendments containing delegated powers tabled to a bill after the committee’s initial report”.17 In Session 2001–02, we reported on eight sets of Government amendments; in the last session we reported on 16. It is becoming the practice of Departments to provide supplementary delegated powers memoranda to assist us in our consideration of amendments, and we welcome this development.

19. Often the time available to deal with amendments is very limited and the Committee is required to act quickly. This is especially true in relation to Consideration of Commons Amendments. The Committee has almost always been able to meet the demands of the legislative timetable, in part because of the co-operation of Departments in drawing attention to relevant amendments and, on occasions, advance warning of amendments. In the case of the Water Bill [HL] for example, we were given the opportunity to consider draft amendments to be tabled in the Commons so that, by the time they reached the Lords for consideration, the Committee was able to express a view by way of a letter from the Clerk to Departmental officials.18 We welcome the co-operation of Departments with the Committee in relation to Government amendments by, for example, giving advance sight of amendments. We encourage the further development of this practice in the future.

Pre-legislative scrutiny

20. The first occasion on which we were invited to submit our views to a committee charged with pre-legislative scrutiny was to the joint committee on the draft Financial Services and Markets Bill in March 1999. In that session, we submitted comments on two further draft bills: the draft Freedom of Information Bill and the draft Local Government (Organisation

16 Review of the Committee’s Work, 12th Report, Session 1993–94, HL Paper 90. 17 1st Report, Procedure Committee, Session 1999–2000, HL Paper 25. 18 28th Report, Session 2002–03, HL Paper 202.


and Standards) Bill. Since then we have submitted comments on one draft bill each year. In Session 2001–02, we sent a memorandum to the joint committee on the draft Communications Bill and, in Session 2002–03, we made comments on the draft Civil Contingencies Bill.

21. In our Special Report for Session 1998–99, we suggested that it would be helpful to the House, the Government and any interested parties if we were to publish our comments in a separate report rather than as an appendix to the pre-legislative committee’s final report.19 We have revised our view and have concluded that there is benefit in publishing our submission as part of the collection of relevant documents appended to the final report. As a result, we were pleased to see that our submissions in the last two sessions have been published as annexes to the final reports of the joint committees.

22. We continue to believe that our role in pre-legislative scrutiny is “a valuable part of our work”.20 We therefore welcome the opportunity to contribute to pre-legislative inquiries by offering preliminary comments on a draft bill. We reiterate however the following caveats which we expressed in our Special Report for Session 1998–99: “There is the difficulty … of hitting the moving target of successive draft bills and consultation documents. Nor do we benefit , as we usually do, from a memorandum from the sponsoring Government Department on the delegated powers in the bill, or from the second reading debate, which may expose concerns about powers in the bill”.21 We made a similar point in our submission to the joint committee on the draft Communications Bill when we said: “Our only reservation about our involvement in the process is that we have had experience of bills where the significance of particular delegated powers has become evident only after the bill had been introduced”.22

23. We accept that the “moving target” aspect of pre-legislative scrutiny is an inevitable consequence of the nature of the exercise. On the question of the provision of a delegated powers memorandum, although we do not take the view that Departments should, at pre-legislative scrutiny stage, be required to provide such a memorandum, we would welcome guidance from Departments about any general issues in relation to the delegated powers in a draft bill which would assist us in our understanding of the bill.

Delegated Powers Memoranda and guidance to Departments

24. In contrast to draft bills, it is our usual practice to consider substantive Government bills with the assistance of a delegated powers memorandum provided by the sponsoring Government Department. A memorandum is produced for all Government bills (except Supply Bills or consolidation bills,23 on neither of which the Committee reports); the Government also provides a memorandum on some private Members’ bills.24

19 29th Report, Session 1998–99, HL Paper 112, para 63. 20 26th Report, Session 2000–01, HL Paper 83, para 12. 21 29th Report, Session 1998–99, HL Paper 112, para 60. 22 Report of the Joint Committee on the Draft Communications Bill, Session 2001–02, HL Paper 169-I, HC

876–I, Annex 6, para 2. 23 We have however reported on bills which are the product of the Tax Law Rewrite Project, launched in

December 1995. Whilst not consolidation bills, they are essentially intended to embody the existing law in


25. The delegated powers memorandum is given to us by the Department as soon as possible after the introduction of a bill. We have rarely encountered any difficulty in obtaining a memorandum in the required time. Bearing in mind the time constraints under which the Committee operates, however, we would urge Departments to ensure that memoranda are provided as soon after the introduction of a bill as possible and preferably before.

26. The information provided in the delegated powers memoranda contributes significantly to our deliberations and, from time to time, we have made further suggestions for particular issues to be covered by the memorandum. In the last session for example, we asked Departments to provide a fuller explanation of Henry VIII powers to make incidental, consequential and similar provision (see paragraph 38(b) below) and, where appropriate, of the impact of the devolution settlement (see paragraph 44 below). In order to ensure that the House also benefits from these memoranda, we publish them as annexes to our reports. The quality of memoranda varies. We welcome inquiries from Departments about the content of memoranda and are able to offer examples of particularly helpful ones. Given the number of inquiries which we have received, however, we propose, this session, to issue notes of guidance about the content of delegated powers memoranda. We shall send copies of the notes of guidance to Government Departments and place them on the internet.25

Government responses

Written responses

27. A notable development in this latest session is the increase in formal Government responses to Committee reports on bills (see Appendix 4 to this Report for figures for the last five sessions). In previous Special Reports we have urged Departments to respond in writing, if time is available, to our reports on the ground that a written response could be made available to members of the House and would thereby assist the House in its deliberations.26 We welcome therefore the recent increase in formal Government responses and would encourage the further development of this practice.

28. Contrary to practice in earlier sessions, we now print, for the record, all Government responses. In cases where a report containing the response would not be published until after the relevant stage of a bill had passed, we encourage Departments to distribute the response to members of the House interested in the bill in advance of consideration of the bill by the House.

clearer, simpler language. We first reported on such a bill in Session 2000–01, the Capital Allowances Bill. Another such bill, the Income Tax (Earnings and Pensions) Bill, was considered in the last session (12th Report, Session 2002–03, HL Paper 63).

24 For example, in the last session, the Co-operatives and Community Benefit Societies Bill, the Marine Safety Bill and the Aviation (Offences) Bill.

25 www.parliament.uk/parliamentary_committees/dprr.cfm 26 Special Report, Session 1997–98, HL Paper 158, para 50; 29th Report, Session 1998–99, HL Paper 112,

paras 44–47; 37th Report, Session 1999–2000, HL Paper 130, paras 75–76. The Liaison Committee endorsed the recommendation of our 1997–98 Special Report (see 1st Report, Liaison Committee, Session 1998–99, HL Paper 27).


Government responses and the role of the Committee

29. We are encouraged to find that the Government almost invariably accepts our recommendations so that the relevant amendment is tabled before the bill is considered on the floor of the House or the Minister is able to announce to the House that such an amendment will be forthcoming (see Appendix 5 to this Report, which sets out– the responses to the Committee’s recommendations in Session 2002–03). On occasion, however, a Department does not agree with a recommendation that we have made and offers reasons for their view in a written response.

30. In one particular case, during the last session, concerning the Local Government Bill, we were grateful for a response from Lord Rooker, Minister of State for Housing, Planning and Regeneration, in which a number of our recommendations on the bill were accepted. We were concerned however that the response suggested that the Department and the Committee were engaged in discussions about how to take forward one of the recommendations with which the Government did not fully agree. We therefore wrote to Lord Rooker in the following terms: “Whilst the Committee is grateful to Departments for responding formally to our reports and recognises the assistance that this provides to the House, we do not believe that it is appropriate for the Committee to comment on a Government response. We believe that, when the Committee has reported to the House, it is for the House to consider the Committee’s report and the Government response to it”.27

31. Whilst we believe that it is not appropriate for us to enter into negotiations with Government Departments, we take the view that there may be instances when the House would be assisted if publication of a Government response were to be accompanied by a clarificatory comment from the Committee. It was for this reason that, exceptionally, the Committee commented on the Government’s response to its report on the European Parliament (Representation) Bill to indicate why the response did not resolve the issues raised in the original report.28

32. In previous Special Reports we have referred to the Committee’s function as advisory committee to the House. We wish to emphasise the point again (subject to the exceptional circumstances described in the paragraph above). It is to the House that the Committee reports and it is the House which decides whether to adopt the Committee’s recommendations.29

Private Members’ Bills

33. We report on all public bills,30 including private Members’ bills. During Session 2001–02, we considered 27 Private Members’ bills and, during the last session, we considered 28.

27 21st Report, Session 2002–03, HL Paper 122, p 57. 28 12th Report, Session 2002–03, HL Paper 63. 29 On one occasion during Session 2001-02, the Committee agreed, at the request of Baroness Blackstone,

then Minister of State for the Arts, to reconsider its conclusion in a report on amendments to the Office of Communications Bill in the light of points raised in debate in Committee. Exceptionally, we agreed to do so. In the event, we did not modify our original view (see our 7th Report, Session 2001–02, HL Paper 45).

30 Save Supply Bills and consolidation bills. See para 24 above.


34. In our Special Report for Session 1999–2000, we expressed a concern relating to the problems created when private Members’ bills originating in the House of Commons arrive in the House of Lords late in the session. We noted that, due to the strict limitation in the House of Commons on “private members’ time”, amendment of such private Members’ bills by the Lords late in the session (when it is likely that time available in the Commons for private Members’ bills has been fully taken up) could lead to the bill being lost entirely. We described the consequent pressure on the Lords not to amend bills in those circumstances as giving rise to “a travesty of parliamentary scrutiny”.31

35. The problem persists. For example, in our report of the last session on the Co-operatives and Community Benefit Societies Bill, a private Member’s bill brought up from the Commons and supported by the Government, we made a number of recommendations for amendment of the bill.32 During the subsequent second reading debate, Lord Newby noted the potential effect of such recommendations on the future of the bill:

“I have two questions for the Minister. First, the noble Lords, Lord Carter and Lord McNally, referred to the report of the Select Committee on Delegated Powers, which suggests that in three areas the powers in the Bill may be slightly too wide. In two cases, it suggests how that might be rectified. If amendments that deal with the issues raised in the Select Committee report are introduced in Committee and passed, can the Government give any assurance that the Bill, being then an amended Bill, will be given a fair wind when it goes back to the Commons? … It would be a great pity if technical amendments dealing with valid concerns ended up scuppering the Bill.”33

In the event, the bill was passed by Parliament with amendment and received Royal Assent on 10 July 2003.

36. We believe that the delegated powers in all public bills, whether Government bills or private Members’ bills, should be subject to the same level of scrutiny by us. We remain, therefore, concerned about the problem of private Members’ bills which arrive late in the session from the House of Commons in the House of Lords. We invite the Government to consider, with the usual channels, how this problem might be addressed.

Henry VIII clauses

37. A “Henry VIII clause” is a provision in a bill which enables primary legislation to be amended or repealed by secondary legislation with or without further parliamentary scrutiny.34 We noted in our first Special

31 37th Report, Session 1999–2000, HL Paper 130, paras 52–57. We recommended that the matter should

be referred to the Lords Procedure Committee. In the event, it was not. Sadly, the then Chairman of Committees, Lord Mackay of Ardbrecknish, died before his response to the recommendation had been sent. Lord Tordoff, in a letter dated 6 March 2001, wrote to the Committee setting out the text of a response to which Lord Mackay did not have the opportunity to signify approval. It suggested that the problem identified was not one of Lords procedure but one for discussion between the usual channels and business managers in the two Houses.

32 18th Report, Session 2002–03, HL Paper 102, pp 8–9. 33 HL Hansard, 9 May 2003, col 1379. 34 The name arises from the Statute of Proclamations of 1539, which gave the King power to legislate by

proclamation.


Report, in 1992–93, that such clauses have become “increasingly common”; we also noted that they “vary widely in their scope”. Although we recognised the case for using Henry VIII clauses for updating lists, uprating for inflation and for making consequential and transitional provision, we suggested that the Government should be expected to justify the use of such clauses.35

38. In December 2002, we published a Special Report on Henry VIII powers to make incidental, consequential and similar provision.36 The report arose from the debate on the third reading of the Nationality, Immigration and Asylum Bill about a new provision which would permit the Secretary of State by order to make provision, including amendment of enactments, which he thought necessary in consequence of, or in connection with, a provision of the bill. The proposal was that, if the order amended an enactment, it would be subject to affirmative procedure; otherwise, it would be subject to negative procedure. Whilst, on that occasion, we found the delegation and the level of scrutiny appropriate, the Committee expressed concern about the tabling of a significant Henry VIII power at a stage when effective scrutiny of the power, either by the Committee or by the House, was impossible. We also expressed surprise that, instead of referring to precedent, the arguments in favour of this power put forward by the Government included the lack of time to identify all the possible consequential and incidental amendments that may be necessary, and the need to make consequential and incidental provision, the need for which “may come to light in due course”.37

39. In our Special Report, we considered three questions: whether there was a case for using Henry VIII powers to make incidental, consequential and similar provision; whether there should be a presumption that the same form of words should be used in every case; and, where it was appropriate to delegate the power, the appropriate level of Parliamentary scrutiny. We drew the following conclusions:

a) that there were occasions when Henry VIII powers to make incidental, consequential and similar provision were justified;

b) that the Government, in the Explanatory Notes accompanying a bill, as well as in the delegated powers memorandum to the Committee, should offer an explanation of the reasons why a particular form of wording setting out the power had been adopted;

c) that, where such power was delegated, there should be a presumption in favour of affirmative procedure and that the reasons for any departure from the affirmative procedure should, again, be explained in the Explanatory Notes and delegated powers memorandum.

A full copy of the report (without original appendices) is set out in Appendix 6 to this Report.

40. The Report was debated on the floor of the House on 14 January 2003.38 We believe that the debate provided the House with a useful opportunity to

35 1st Report, Session 1992–93, HL Paper 57, paras 11 and 14. 36 3rd Report, Session 2002–03, HL Paper 21. 37 28th Report, Session 2001–02, HL Paper 179, para 13. 38 HL Hansard, 14 January 2003, cols 165–187. During the course of the debate, Lord Goodhart asked the

Government for further information about how the powers identified in the Special Report had been used (at col 180). The answer was provided in a Written Answer, HL Hansard, 20 February 2003, cols WA189–191.


consider generally issues relating to Henry VIII powers to make incidental, consequential and similar provision, outside the context of a specific bill. Lord Roper described the debate as “an extremely important one, not only in regard to the incident which provoked the study but because the whole question of the balance between primary and secondary legislation is central to the way in which we in the House scrutinise the process of government”.39 A number of speakers referred to the increase in use of Henry VIII powers and expressed concern about the ability of the House to scrutinise effectively the exercise of such powers. We will, of course, play our part and will draw to the attention of the House any Henry VIII power which we regard either as inappropriately delegated or as subject to an inappropriate level of Parliamentary scrutiny. Like many of the speakers in the debate, we also welcome the appointment of a Lords Committee on the Merits of Statutory Instruments as a mechanism for scrutinising the exercise of those Henry VIII powers to which Parliament has agreed.

National Assembly for Wales

The continuing debate

41. Until devolution, the Committee’s role was mainly to consider legislative powers which were delegated by Parliament to a Minister of the Crown. The effect of the Government of Wales Act 1998 was to give the National Assembly for Wales responsibility for executive functions exercised by the Secretary of State for Wales.

42. When we reported on the Government of Wales Bill during its passage through the House,40 we considered how we should approach the grant of new legislative powers to the Assembly. Our tentative view was that “the Westminster Parliament will remain the supreme legislative body for Wales, and therefore in principle the grant of any new legislative powers to the Assembly (whether in the Bill or in future legislation) should be judged against similar criteria to those which the Committee applies when considering the propriety and ambit of the grant of delegated legislative powers to Ministers of the Crown”.41

43. There has been much debate in recent months about the role and procedures of the Assembly. We note, for example, that the House of Lords Constitution Committee published a report in December 2002 on “Devolution: Inter-Institutional Relations in the United Kingdom”,42 that the House of Commons Welsh Affairs Committee published a report in March 2003 on “The Primary Legislative Process as it Affects Wales”,43 and that in July 2002, the Commission on the Powers and Electoral Arrangements of the National Assembly for Wales, under the chairmanship of Lord Richard, - the Richard Commission - was appointed.44 In a report last session on the

39 Ibid., col 173. 40 18th Report, Session 1997–98, HL Paper 101. 41 Ibid., para 5. 42 Session 2002–03, HL Paper 28. 43 4th Report, Session 2002–03, HC 79. The Government’s response is published in the Committee’s 3rd

Special Report, Session 2002-03, HC 989. 44 The Clerk, with the then Clerk Assistant and the Clerk of Public and Private Bills, gave evidence to the

Richard Commission on 30 January 2003.


Community Care (Delayed Discharges etc.) Bill,45 we said that we anticipated that “the impact of devolution on delegated legislation is an issue to which we shall, more generally, turn our attention in the coming months.” With this in mind, we look forward to the publication of the report of the Richard Commission early next year.

Explaining the devolution aspect of bills

44. In our Special Report for Session 1999–2000,46 we recommended that Explanatory Notes accompanying a bill should include a note on the powers delegated to the Welsh Assembly. We welcome the requirement, since 1 January 2003, that Departments should include a section setting out the Welsh implications of a bill in all Explanatory Notes.47

45. On occasions, it appears that the decision of the Department as to whether a delegation (to a Minister) should be subject to affirmative or negative procedure is determined, to some extent, by the fact that similar powers are to be delegated to the National Assembly. As a result, in our report on the Community Care (Delayed Discharges etc.) Bill, we asked Government Departments, when drawing up delegated powers memoranda for bills involving England and Wales, to say whether, and if so how, the devolution arrangements influenced their decision as to which Parliamentary procedure should be applied in relation to delegations to Ministers.

45 9th Report, Session 2002–03, HL Paper 45, para 5. 46 37th Report, Session 1999–2000, HL Paper 130, para 70. 47 See 4th Report, House of Commons Welsh Affairs Committee, Session 2002–03, HC 79, para 29.


CHAPTER 3: REGULATORY REFORM ORDERS

Workload

46. Under the Regulatory Reform Act 2001 (“the 2001 Act”) (and its predecessor, the Deregulation and Contracting Out Act 1994 (“the 1994 Act”)), orders (regulatory reform orders or deregulation orders) are subject to a two-stage “super-affirmative” procedure by which they are considered (in parallel) by committees in the Commons and the Lords first in the form of a proposal and secondly as a draft order.

Deregulation Orders

47. When the 2001 Act was passed, there were four proposals for deregulation under the 1994 Act outstanding. They were: the draft Deregulation (Disposals of Dwelling-houses by Local Authorities) Order 2001, the draft Deregulation (Correction of Birth and Death Entries in Registers or other Records) Order 2001, the draft Deregulation (Bingo and Other Gaming) Order 2001, and the draft Deregulation (Restaurant Licensing Hours) Order 2001. The 2001 Act made provision for transitional arrangements to enable Parliament to complete its scrutiny of any proposals under the 1994 Act laid before it. During Session 2001–02, we dealt with each of the remaining deregulation orders (at second stage). All subsequent orders are now brought under the 2001 Act.

Regulatory Reform Orders

48. Since the passing of the 2001 Act, 16 Regulatory Reform Orders have been passed.48 The Government is committed to making 60 Regulatory Reform Orders by 2005; and we note that, in the Queen’s Speech at the beginning of the current session, the Government announced that it “will continue to take forward a programme of Regulatory Reform Orders to simplify and reform burdensome and outdated legislation”.49

49. The House of Commons Regulatory Reform Committee, in its recent progress report on the 2001 Act,50 drew attention to the significant increase in workload which the Government’s target implies and called on the Government to take care in assessing the achievability of its programme. We share the concern expressed by the Commons Committee that an unreasonably high level of regulatory reform business could result in orders

48 These are: draft Regulatory Reform (Special Occasions Licensing) Order 2001, draft Regulatory Reform

(Golden Jubilee Licensing) Order 2002, draft Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) (England) Order 2002, draft Regulatory Reform (Housing Assistance)(England and Wales) Order 2002, draft Regulatory Reform (Carer’s Allowance) Order 2002, draft Regulatory Reform (Vaccine Damage Payments Act 1978) Order 2002, draft Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002, draft Regulatory Reform (Special Occasions Licensing) Order 2002, draft Regulatory Reform (Credit Unions) Order 2003, draft Regulatory Reform (Assured Periodic Tenancies)(Rent Increases) Order 2003, draft Regulatory Reform (Schemes under Section 129 of the Housing Act 1988)(England) Order 2003, draft Regulatory Reform (Housing Management Agreements) Order 2003, draft Regulatory Reform (Sugar Beet Research and Education) Order 2003, draft Regulatory Reform (British Waterways Board) Order 2003, draft Regulatory Reform (Business Tenancies) (England and Wales) Order 2003, and draft Regulatory Reform (Gaming Machines) Order 2003.

49 HL Hansard, 26 November 2003, col 4. 50 1st Special Report, Session 2002–03, HC 908, para 16.


receiving a less rigorous degree of parliamentary scrutiny than might otherwise be appropriate.

50. We note that two of the regulatory reform measures to be considered this session, Reform of Patents Legislation and Fire Safety, are substantial. This contrasts with the relatively minor nature of many of the past Regulatory Reform Orders. Although we welcome the Government’s commitment to greater use of the regulatory reform mechanism, our greater concern is that it should be applied to policy changes of some significance. The regulatory reform process is an onerous one and the importance of measures should, we believe, be proportionate to the effort and resources expended in satisfying its requirements.

Pre-scrutiny advice

51. During the last session, the Committee was invited to provide pre-scrutiny without prejudice advice on a proposal for a Regulatory Reform Order which would enable the offices of the Commissioner for Local Administration in Wales, the Health Service Commissioner for Wales and the Welsh Administration Ombudsman to be held by the same individual. The request led us to consider generally the appropriateness of our giving pre-scrutiny advice and we concluded that we should not. In a letter dated 24 March 2003, we wrote to the Rt Hon Peter Hain MP, Secretary of State for Wales, in the following terms: “When we discussed your letter at our recent meeting, it prompted a more general consideration of the question whether it is appropriate for the Committee to provide pre-scrutiny advice to Government Departments. Whilst we recognised the value of providing such advice, we concluded that we should not stray beyond our prescribed scrutiny function by offering advice before a proposal has been formally laid … under the provisions of the Regulatory Reform Act 2001 and in advance of our report to the House.”

52. In reaching this conclusion, we do not wish to appear unhelpful to Government Departments or, in any way, to erode the co-operative relationship we have with many Departments. We wish to emphasise, therefore, that although the Committee takes the view that we should not offer formal pre-scrutiny advice we continue to encourage full co-operation and consultation between Departments and the Committee at staff level.

Two-year rule

53. Under section 1(4) of the 2001 Act, a Regulatory Reform Order cannot be made for the purpose of reforming the law contained in a provision of an Act if that provision has been amended by an Act passed not more than two years before the day on which the order is made. This is called the “two-year rule”. It has had some significance in respect of two of the Regulatory Reform Orders we have considered in the last two sessions.

54. At the beginning of the 2001–02 Session, we considered the draft Regulatory Reform (Special Occasions Licensing) Order 2001, the first proposal to be laid before Parliament under the 2001 Act. The draft order extended the licensing hours on New Year’s Eve 2001, but the Government’s original intention was to amend it by later orders so as to apply the extended hours first of all to the Golden Jubilee (in June 2002) and then to every future New Year’s Eve. However, section 1(4) of the 2001 Act prohibits the use of an


order to reform any provision of an Act if an order made under the Act made during the preceding two years has amended that provision. The Department originally argued that the proposal did not involve repeated amendment of an Act as the further orders would be amending the first order. The difficulty with this approach was that there is power to amend an earlier order to remove or lessen a burden only if that burden can be found in the order. In this case, the relevant burden remained in the Licensing Act 1964. Following the advice of Treasury Counsel, the Department was able to revise the order so as to avoid the two-year rule (by transferring the licensing restrictions to the order from Part III of the Licensing Act). Whilst we approved the arrangement, we emphasised our view that proposals should not normally be drafted in such a way as to circumvent the provisions of section 1(4) of the 2001 Act.51

55. The “two-year rule” also arose in respect of the draft Regulatory Reform (Gaming Machines) Order 2003. In that case the implication of the provision was that the scope of the original proposal had to be curtailed. As a result, the assessed annual benefits of the reform to the industry fell from £9.5 million to £1.85 million. Although we approved the order, we expressed our concern about the Government’s “piecemeal approach to reform of gaming law”, a point we had also made in an earlier report in respect of the draft Deregulation (Bingo and Other Gaming) Order 2001.52

Request for evidence

56. It had been the practice of the Committee, when a proposal for regulatory reform was laid before Parliament, to issue a formal request for evidence from any interested organisations or individuals. The request was included in the Committee’s usual reports, and the title of the entry appeared on the front cover of the report (along with the names of the other draft orders dealt with in the report). The origin of the request procedure lies in section 4(4) of the 1994 Act (now section 8(4) of the 2001 Act).53 We do not, however, take the view that it is required under the 2001 Act.

57. The request received no publicity (such as a press notice), and rarely, if ever, elicited any responses. In view of this, and given that sponsoring Departments send a note about the parliamentary process as an accompaniment to any Regulatory Reform Order consultation paper, we took the view earlier this year that we should dispense with the practice of issuing a request for evidence. In doing so, we emphasise that any representation received by the Committee during parliamentary consideration will be placed before the Committee in the same way that it would have been had a formal request for evidence been made.

51 4th and 5th Reports, Session 2001–02, HL Papers 29 and 39. 52 24th Report, Session 2000–01, HL Paper 81. 53 Section 8(4) states: “In preparing a draft of an order under section 1 to give effect, with or without

variations, to proposals in a document laid before Parliament under section 6(1), the Minister concerned shall have regard to any representations made during the period for Parliamentary consideration and, in particular, to any resolution or report of, or of any committee of, either House of Parliament with regard to the document”.


Forthcoming review

58. The Government is committed to carrying out a review of the 2001 Act by April 2004.54 We look forward to the publication of that review.

54 HL Hansard, 13 February 2001, col 215.


APPENDIX 1: EXTRACT FROM THE JELLICOE REPORT

Report from the Select Committee in the Committee Work of the House, Session 1991–92, HL Paper 35–I

133. Delegated Powers Scrutiny Committee: Almost all the evidence we received on the proposal for a committee to give closer and more systematic scrutiny to delegated powers sought in bills was enthusiastic; and, despite the differences between the functions and working methods of the Australian Senate and the House of Lords, we have been impressed by the work of the Senate Scrutiny of Bills Committee. Such work would be well suited to the revising function of the House and in recent years there has been considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion. The Committee believes that a Delegated Powers Committee could have great potential value and we accordingly recommend its appointment, subject to the following points:

(i) We agree with the Government’s suggestion that such a Committee should be established on a limited and experimental scale in the first instance. Indeed, the Committee should not be re-appointed if its reports become routine or have no influence in the House.

(ii) We agree too that the Committee should not normally expect to see draft instruments themselves when considering enabling powers proposed in bills.

(iii) The scope of the Committee’s work should initially be directed to the appropriateness of delegated powers and whether subsequent delegated legislation will be sufficiently subject to parliamentary approval. We considered whether the Committee should also scrutinise the effect bills would have on personal rights and liberties—a key area for the Australian Senate Committee. We decided against this for the reasons set out in paragraph 22 of the report of the visit to the Senate …, in particular the fact that potential infringements of civil liberties are already often raised during a bill’s passage through the two Houses and the need to avoid too ambitious a remit in the early years. This should, of course, be kept under review and the Committee itself might in due course be invited to consider the possible widening of its remit.

(iv) The Committee should report to the House before the beginning of the committee stage proper; and we are confident that this should be possible and that there need be no delay to the legislative programme. It would need to consider bills in the week following introduction and would write to the Minister if concerned about a particular provision. In general the Committee would simply send a written reply; and there would not be time to invite evidence from outside interests. On occasions, however, the Committee could hear evidence from officials, or even Ministers, if they were unhappy with the Government’s response.

(v) Although its reports would be available for the committee of the whole House, the Committee should not seek itself to draft or submit amendments in its report.

(vi) We recommend a small Committee of seven or eight Lords, which would need to meet weekly in the early stages of a session but less frequently as the session progressed. Whilst the appointment of a Lord of Appeal in Ordinary or a retired Lord of Appeal would clearly help to ensure the effectiveness of


the committee at its formation, we do not consider it essential for the Committee to be chaired by a legally qualified Lord. It would, however, be essential to appoint a legal adviser—whether on a full or part-time basis—who would need to consider some bills under tight deadlines.

(vii) We have not ourselves, as suggested by the Government …, sought to explore how far it would be possible to establish a generally accepted consensus on what should be reserved to primary legislation and what is appropriate for delegation to subordinate legislation. Whilst in due time it would certainly be helpful to establish ground rules and criteria, we believe that this must be a task for the Committee itself once appointed, during an experimental first session. If, however, the House thought that the Committee should at the outset give specific attention to this matter, and take evidence and report to the House, then this seems entirely appropriate. We stress, however, that the Committee is unlikely to accept a role confined to applying a rigid set of agreed criteria to all provisions in bills regardless of the circumstances. It is bound to have some regard to specific circumstances and we do not accept that in the House of Lords this would run the risk of confusing vigilance against unwarranted powers with political opposition to underlying policy.


APPENDIX 2: LIST OF REPORTS IN SESSION 2001–02

REPORT BILL OR ORDER 1st Report Land Registration Bill [HL] Travel Concessions (Eligibility) [HL] International Development [HL] Commonhold and Leasehold Reform [HL] British Overseas Territories [HL] European Union (Implications of Withdrawal) [HL] Request for evidence on the proposal for the draft Regulatory Reform (Special Occasions Licensing) Order 2001 2nd Report Office of Communications Bill [HL] Tobacco Advertising and Promotion Bill [HL] 3rd Report European Communities (Amendment) Bill National Heritage Bill [HL] Homelessness Bill [HL] Land Registration Bill [HL] – Government Amendments for Report Stage Christmas Day (Trading) Bill [HL] European Communities (Finance) Bill 4th Report Proposal for the draft Regulatory Reform (Special Occasions Licensing) Order 2001 5th Report Draft Regulatory Reform (Special Occasions Licensing) Order 2001 6th Report Export Control Bill Electoral Fraud (Northern Ireland) Bill Sex Discrimination (Election Candidates) Bill Human Reproductive Cloning Bill [HL] Welfare of Ducks Bill [HL] Parliament Act 1949 (Amendment) Bill [HL] Football (Disorder) (Amendment) Bill 7th Report Anti-terrorism, Crime and Security Bill Office of Communications Bill [HL] Request for evidence on the proposal for the draft Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) Order 2002 8th Report Draft Deregulation (Disposals of Dwelling- houses by Local Authorities) Order 2001 9th Report State Pension Credit Bill [HL] Animal Health Bill Dignity at Work Bill [HL]


10th Report Northern Ireland Arms Decommissioning (Amendment) Bill National Health Service Reform and Health Care Professions Bill Disability Discrimination (Amendment) Bill [HL] Civil Partnerships Bill [HL] Religious Offences Bill [HL] 11th Report Draft Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) Order 2002 Draft Regulatory Reform (Golden Jubilee Licensing) Order 2002 Request for evidence on proposals for: Draft Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 Draft Regulatory Reform (Carer’s Allowance) Order 2002 Draft Regulatory Reform (Vaccine Damage Payments Act 1979) Order 2002 12th Report Police Reform Bill [HL] Export Control Bill – Government Amendments for Committee Stage Civil Defence (Grant) Bill National Lottery (Amendment) Bill [HL] 13th Report Draft Deregulation (Restaurant Licensing Hours) Order 2002 Draft Deregulation (Bingo and Other Gaming) Order 2002 14th Report Education Bill Employment Bill Sex Discrimination (Amendment) (No 2) Bill [HL] 15th Report Draft Regulatory Reform (Golden Jubilee Licensing) Order 2002 Draft Regulatory Reform (Voluntary Aided Schools Liabilities and Funding) Order 2002 Proposal for the draft Regulatory Reform (Carer’s Allowance) Order 2002 Proposal for the draft Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 Proposal for the draft Regulatory Reform (Vaccine Damage Payments Act 1979) Order 2002 16th Report Proceeds of Crime Bill Justice (Northern Ireland) Bill


Tax Credits Bill Scottish Parliament (Referendum) Bill [HL] National Health Service Reform and Health Care Professions Bill – Government Response Commonhold and Leasehold Reform Bill [HL] – Commons Amendments 17th Report Draft Deregulation (Correction of Birth and Death Entries in Registers or Other Records) Order 2002 18th Report Marine Wildlife Conservation Bill Public Trustee (Liability and Fees) Bill [HL] Public Service (Disruption) Bill [HL] Divorce (Religious Marriages) Bill Industrial and Provident Societies Bill Education Bill – Government Amendments for Committee Stage Copyright, etc. and Trade Marks (Offences and Enforcement) Bill Borough Freedom (Family Succession) Bill [HL] 19th Report Draft Regulatory Reform (Housing Assistance) (England and Wales) Order 2002 Draft Regulatory Reform (Carer’s Allowance) Order 2002 20th Report Tax Credits Bill – Government Amendments for Committee Stage Proceeds of Crime Bill – Government Amendments for Committee Stage Mobile Telephones (Re-programming) Bill [HL] Computer Misuse (Amendment) Bill [HL] 21st Report Draft Regulatory Reform (Vaccine Damage Payments Act 1979) Order 2002 Request for evidence on the proposal for the draft Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002 22nd Report Adoption and Children Bill Justice (Northern Ireland) Bill – Government Response 23rd Report Proposal for the draft Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002 24th Report Nationality, Immigration and Asylum Bill Enterprise Bill Copyright (Visually Impaired Persons) Bill


25th Report Request for evidence on the following proposals: Draft Regulatory Reform (Sugar Beet Research and Education) Order 2003 Draft Regulatory Reform (Credit Unions) Order 2002 Draft Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 Draft Regulatory Reform (Special Occasions Licensing) Order 2002 26th Report Adoption and Children Bill – Government Amendments for Report Stage Nationality, Immigration and Asylum Bill Government Amendments for Report Stage and for Committee on Re-commitment Private Hire Vehicles (Carriage of Guide Dogs, etc.) Bill Commonwealth Bill 27th Report Proposal for the draft Regulatory Reform (Sugar Beet Research and Education) Order 2003 Proposal for the draft Regulatory Reform (Special Occasions Licensing) Order 2002 28th Report Adoption and Children Bill – Government Amendments for Third Reading Nationality, Immigration and Asylum Bill – Government Amendments for Third Reading Sexual Offences (Amendment) Bill 29th Report Proposal for the draft Regulatory Reform (Credit Unions) Order 2003 Draft Regulatory Reform (Removal of 20 Member Limit in Partnerships etc.) Order 2002 Request for evidence on the Proposal for the draft Regulatory Reform (Assured Periodic Tenancies) (Rent Increases) Order 2003


APPENDIX 3: LIST OF REPORTS IN SESSION 2002-03

REPORT BILL OR ORDER 1st Report Licensing Bill [HL] Arms Control and Disarmament (Inspections) Bill [HL] Waste and Emissions Trading Bill [HL] High Hedges Bill [HL] Request for evidence on the proposal for the draft Regulatory Reform (Housing Management Agreements) Order 2003 2nd Report Crime (International Co-operation) Bill [HL] Courts Bill [HL] Waste and Emissions Trading Bill [HL] Wild Mammals (Protection) (Amendment) (No 2) Bill [HL] National Minimum Wage (Enforcement Notices) Bill [HL] Patients’ Protection Bill [HL] Voting Age (Reduction to 16) Bill [HL] Road Traffic (Amendment) Bill [HL] 3rd Report Special Report on Henry VIII Powers to make Incidental, Consequential and Similar Provision 4th Report Proposal for the draft Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 5th Report Police (Northern Ireland) Bill [HL] Public Services (Disruption) Bill [HL] Greater London Authority Act 1999 (Repeal) Bill [HL] Crime (International Co-operation) Bill [HL] – Government Response 6th Report Proposal for the draft Regulatory Reform (Assured Periodic Tenancies) (Rent Increases) Order 2003 Draft Regulatory Reform (Special Occasions Licensing) Order 2002 Draft Regulatory Reform (Credit Unions) Order 2003 Request for evidence on the proposal for the draft Regulatory Reform (Schemes under Section 129 of the Housing Act 1988) (England) Order 2003 7th Report Health (Wales) Bill Courts Bill [HL] – Government Response Wild Mammals (Protection) (Amendment) (No 2) Bill [HL] – Response of the member in charge of the bill


8th Report Proposal for the draft Regulatory Reform (Housing Management Agreements) Order 2003 Draft Regulatory Reform (Assured Periodic Tenancies) (Rent Increases) Order 2003 9th Report Community Care (Delayed Discharges etc.) Bill Equality Bill [HL] 10th Report Proposal for the draft Regulatory Reform (Schemes under Section 129 of the Housing Act 1988) (England) Order 2003 11th Report Regional Assemblies (Preparations) Bill Sexual Offences Bill [HL] European Parliament (Representation) Bill Harbours Bill [HL] 12th Report Electricity (Miscellaneous Provisions) Bill Water Bill [HL] House of Lords (Amendment) Bill [HL] Income Tax (Earnings and Pensions) Bill European Parliament (Representation) Bill – Government Response Licensing Bill [HL] – Government Response Ministerial and Other Salaries (Amendment) Bill [HL] 13th Report Draft Regulatory Reform (Housing Management Agreements) Order 2003 14th Report Communications Bill Patient (Assisted Dying) Bill [HL] Water Bill [HL] – Government Response Community Care (Delayed Discharges etc.) Bill – Government Response Electricity (Miscellaneous Provisions) Bill – Government Response European Parliament (Representation) Bill – Government Amendments for Committee Stage Courts Bill [HL] – Government Amendments for Committee Stage Northern Ireland Assembly Elections Bill Prevention of Driving under the Influence of Drugs Bill [HL] 15th Report Draft Regulatory Reform (Schemes under Section 129 of the Housing Act 1988) Order 2003 Proposal for the draft Regulatory Reform (British Waterways Board) Order 2003


16th Report Local Government Bill Police (Northern Ireland) Bill [HL] – Consideration of Commons Amendments Tax Credits Bill 17th Report Draft Regulatory Reform (Sugar Beet Research and Education) Order 2003 18th Report Extradition Bill Railways and Transport Safety Bill Co-operatives and Community Benefit Societies Bill Industrial Development (Financial Assistance) Bill Courts Bill [HL] – Government Amendments for Report Stage Communications Bill – Government Response 19th Report Proposal for the draft Regulatory Reform (Gaming Machines) Order 2003 Draft Regulatory Reform (British Waterways Board) Order 2003 20th Report Northern Ireland Assembly (Elections and Periods of Suspension) Bill 21st Report Criminal Justice Bill Fire Services Bill European Union (Accessions) Bill Sunday Working (Scotland) Bill Marine Safety Bill Aviation (Offences) Bill Taxation (Information) Bill [HL] Local Government Bill – Government Response Co-operative and Community Benefit Societies Bill – Government Response 22nd Report Licensing Bill [HL] – Consideration of Commons Amendments 23rd Report Anti-social Behaviour Bill Fireworks Bill Human Fertilisation and Embryology (Deceased Fathers) Bill National Lottery (Funding of Endowments) Bill Dealing in Cultural Objects (Offences) Bill Water Bill [HL] – Government Amendments for Committee on Re-commitment and for Third Reading Local Government Bill – Government Amendments for Report Stage Criminal Justice Bill – Government Response and Government Amendments for Committee Stage


European Union (Accessions) Bill – Government Response 24th Report Health and Social Care (Community Health and Standards) Bill Hunting Bill Northern Ireland (Monitoring Commission etc.) Bill [HL] Legal Deposit Libraries Bill Sustainable Energy Bill Household Waste Recycling Bill Ragwort Control Bill Female Genital Mutilation Bill Anti-social Behaviour Bill – Government Response Fireworks Bill – Government Response 25th Report Draft Regulatory Reform (Business Tenancies) (England and Wales) Order 2003 Draft Regulatory Reform (Gaming Machines) Order 2003 26th Report Courts Bill [HL] – Consideration of Commons Amendments Anti-social Behaviour Bill – Government Amendments for Report Stage Extradition Bill – Government Amendments for Report Stage Health and Social Care (Community Health and Standards) Bill – Government Response and Government Amendment for Committee Stage 27th Report Criminal Justice Bill – Government Amendments for Report Stage Health and Social Care (Community Health and Standards) Bill – Government Amendments for Report Stage Courts Bill [HL] – Government Response 28th Report Proposal for the draft Regulatory Reform (Sunday Trading) Order 2004 Water Bill [HL] – Consideration of Commons Amendments


APPENDIX 4: REPORT STATISTICS FOR SESSIONS 1998–99 TO 2002–03

1998–99

Nov–Nov 1999–2000 Nov–Nov

2000–01 Dec-May

2001–02 June–Nov

2002–03 Nov–Nov

Reports in Session 29 37 26 29 28

Number of bills considered

52 60 31 55 57

Draft Bills 3 1 (two reports)

1 1 1

Government amendments

4 27 2 8 16

Government responses 7 5 3 17

Stage 1 Deregulation/Regulatory Reform Orders

2 1 4 13 7

Stage 2 Deregulation/Regulatory Reform Orders

4 1 1 12 9

Notes:

• Session 2000–01 was a short session and Session 2001–02 a long session because of the General Election held on 7 June 2001.

• The breakdown by Parliamentary stage of Government amendments considered in Session 2002–03 is as follows: four sets of committee stage amendments; one set of amendments for committee on re-commitment; six sets of report stage amendments; one set of third reading amendments; four sets of Commons amendments for consideration.


APPENDIX 5: RESPONSES TO THE COMMITTEE’S RECOMMENDATIONS ON DELEGATED POWERS IN SESSION 2002–03

BILL

REPORT (MAIN)

FORM OF RECOMMENDATION

OUTCOME REPORT (RESPONSE)

Licensing Bill [HL]

1st

Three amendments recommended

Bill amended accordingly on Report

No written response (but see 12th Report)

Waste and Emissions Trading Bill [HL]

1st 2nd

Areas of concern drawn to attention of House 3 amendments recommended

Government supplementary memorandum offered explanations Bill amended in accordance with two of the recommendations on Report

2nd Report No written response

Crime (International Co-operation) Bill [HL]

2nd

2 amendments recommended and an explanation invited

Supplementary memorandum offered an explanation One amendment accepted and second approached differently

5th

Courts Bill [HL] Report Stage amendments Consideration of Commons amendments

2nd 18th 26th

2 amendments recommended and need for 2 others implied Explanation invited Amendment recommended

Bill amended accordingly on Report Amendment to relevant clause debated on Report Bill amended accordingly on Lords Consideration of Commons Amendments

7th 27th

Police (Northern Ireland) Bill [HL] Consideration of Commons amendments

5th 16th

No recommendation Need for amendment implied

Bill amended accordingly

No written response

Community Care (Delayed Discharges etc.) Bill

9th

Amendment recommended and explanation invited

Bill amended accordingly on Report, and explanation offered

14th


BILL

REPORT (MAIN)



European Parliament (Representation) Bill

11th

2 amendments recommended

Bill amended in accordance with first recommendation and to a lesser extent the second recommendation, in Grand Committee

12th and 14th

Water Bill [HL] Amendments on Re-commitment and for Third Reading

12th 23rd

Two amendments recommended Two amendments recommended

Bill amended accordingly on Report Government announced amendment of bill in HC in accordance with recommendation

14th No written response

Electricity (Miscellaneous Provisions) Bill

12th

Amendment recommended


14th

Communications Bill

14th

Amendment recommended and explanations invited

Explanations offered, and bill amended accordingly in Committee

18th

Local Government Bill Report Stage amendments

16th 23rd

8 amendments recommended; explanation and reassurance invited in two areas Points drawn to the attention of the House

Government response addressed all points and bill amended accordingly on Report Points addressed by the Government on Report

21st

Railways and Transport Safety Bill

18th



No written response

Extradition Bill 18th



26th

Co-operative and Community Benefit Societies Bill

18th


Bill amended in respect of two of the three recommendations in Committee

21st Although a private Member’s bill, Government responded

Northern Ireland Assembly (Elections and Periods of Suspension) Bill

20th


Bill amended accordingly in Committee and on Report

No written response

Criminal Justice Bill

21st

Amendment recommended and two points drawn to the attention of the House

Amendment not accepted

23rd (partial Government response)


BILL

REPORT (MAIN)



European Union (Accessions) Bill

21st


Bill amended in Committee (compromise amendment)

23rd

Anti-social Behaviour Bill

23rd

2 amendments suggested and explanation invited

Explanation offered Suggestions for amendments not taken up

24th

Fireworks Bill 23rd

Assurances sought Assurances given 24th Although a private Member’s bill, the Government responded

Health and Social Care (Community Health and Standards) Bill Report Stage amendments

24th 27th

5 amendments recommended and explanation invited Amendment recommended

Bill amended in respect of all but one recommendation Bill amended accordingly on Report

26th No written response

Hunting Bill 24th


Bill fell No written response


APPENDIX 6: SPECIAL REPORT ON HENRY VIII POWERS TO MAKE INCIDENTAL, CONSEQUENTIAL AND SIMILAR PROVISION

3rd Report, Session 2002-03, HL Paper 2155

Introduction

1. This report arises from the debate on Third Reading in the House of Lords of the Nationality, Immigration and Asylum Bill (now Act) about a new clause which was inserted at that stage to permit the Secretary of State by order to make provision, including amendment of enactments, in consequence of or in connection with a provision of the bill. In our report on the new clause we noted that such provisions were not unprecedented and concluded that the delegation and the level of scrutiny in the particular instance were sufficient; we expressed concern, however, about the late stage at which the amendment had been introduced and about the reasons given to explain the need for such provision.

2. During the debate on the Humble Address, our Chairman indicated that this Committee would be considering the issue of Henry VIII powers concerning incidental, consequential and similar provision more generally. We now report our conclusions. …

Principal Questions

3. We have considered three questions:

• Is there a case for using Henry VIII powers to make incidental, consequential and similar provision?

• If so, should there be a presumption that the same form of words should be used in every case?

• What is the appropriate level of Parliamentary scrutiny?

The case for Henry VIII powers to make incidental, consequential and similar provision

4. We were critical of the reasons given by the Government for the late inclusion of the Henry VIII powers in section 157 of the Nationality, Immigration and Asylum Act. We have no doubt, however, that there are occasions when Henry VIII powers to make incidental, consequential and similar provision are justified: for example, when the number of incidental, consequential etc. amendments would cause a disproportionate increase in the length of a bill or when, as a matter of practicality, it would be difficult to anticipate the full extent of such amendments during the passage of a bill.

Standard words

5. We note that of the twelve examples we considered, each is worded differently. We think that it is debatable whether there should be a presumption that standard wording should be used (with a requirement that any departure from that wording should be explicitly justified). We recognise

55 Appendices not printed.


that such an arrangement would have the benefit of making legislation clearer and simpler. We note, however, the point raised by the First Parliamentary Counsel that standard wording would have to be comprehensive and would therefore run the risk of being broader than necessary in a particular case. In the light of the comments by the First Parliamentary Counsel, we are persuaded that the Government should, in the Explanatory Notes accompanying any new bill, as well as in their memorandum to this Committee, offer an explanation of the reasons why a particular form of wording has been adopted in each case.

Parliamentary scrutiny

6. We note again with regard to the twelve … examples that, as with their wording, the level of Parliamentary scrutiny varies. In some cases the negative procedure is used; in some, the affirmative; and in others the affirmative procedure is used if an enactment is to be amended but otherwise negative. We are not surprised that this is the case. We recognise that in some instances the negative procedure provides a sufficient level of Parliamentary scrutiny. We take the view, however, that there should be a presumption in favour of the affirmative procedure and that reasons for any departure from the affirmative procedure should be set out in full in the Explanatory Notes accompanying a bill and in the memorandum submitted to this Committee.

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