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HOUSE of LORDS Delegated Powers and Regulatory Reform HOUSE OF LORDS Delegated Powers and Regulatory Reform Committee 1st Report of Session 2005–06 Charities Bill [HL] Equality Bill [HL] Criminal Defence Service Bill [HL] Road Safety Bill [HL] Merchant Shipping (Pollution) Bill [HL] Fishery Limits (United Kingdom) Bill [HL] Fraud Bill [HL] Borough Freedom (Family Succession) Bill [HL] Ordered to be printed 15 June and published 17 June 2005 London : The Stationery Office Limited £price HL Paper 10 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 Lord Dahrendorf (Chairman) Baroness Gardner of Parkes Lord Garden Lord Harrison Lord McIntosh of Haringey Baroness Scott of Needham Market Lord Shaw of Northstead Lord Temple-Morris 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] Historical Note In February 1992, the Select Committee on the Work of the House, under the chairmanship of Lord Jellicoe, 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” (Session 1991–92, HL Paper 35–I, para 133). 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”. 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. Also in Session 1994–95, following the passage of the Deregulation and Contracting Out Act 1994, 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 was passed which expanded the application of the deregulation order-making power under the 1994 Act, and the Committee took on the scrutiny of regulatory reform proposals under the 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. First Report CHARITIES BILL [HL] Introduction 1. This bill provides for the establishment of the Charity Commission (replacing the Charity Commissioners) and makes a number of other amendments to the law on charities in England and Wales. The delegated powers in the bill are explained in the memorandum for the Committee from the Home Office which is printed at Annex 1 to this Report. The Committee’s earlier report 2. The Committee reported in its 6th Report of Session 2004–05 (HL Paper 31) on an earlier version of the bill. In that Report we mentioned several provisions but made only one recommendation – that regulations under new section 69L of the Charities Act 1993 (winding-up, etc. of charitable incorporated organisations) should be subject to affirmative, rather than negative, procedure. We also noted the Government’s intention to change the level of scrutiny for regulations under what was then clause 65 (fund- raising reserve powers) from negative to affirmative procedure. In the current bill, both the regulations about winding-up etc. and the fund-raising reserve powers are subject to affirmative procedure. (The provisions are at paragraph 1 of Schedule 6 – new section 69M – and clause 67 respectively.) This bill therefore meets the points which we raised in our earlier report. The current bill 3. The current bill is, in terms of its delegated powers, very similar to the earlier version. There are additional delegated powers at clauses 11(14), 62(4), 66 (new section 60B(6)) and 73 and paragraph 1 of Schedule 6 (new section 69G(5)(d)), all of which we find to be appropriate and subject to an appropriate level of parliamentary scrutiny. Conclusion 4. There is nothing in the delegated powers in this bill to which the Committee wishes to draw the attention of the House. 2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE EQUALITY BILL [HL] Introduction 5. This bill establishes the Commission for Equality and Human Rights (“the Commission”) (to replace the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Rights Commission and perform some other functions). It also includes provision relating to discrimination on the grounds of religion or belief and provisions imposing duties on public authorities. The Delegated Powers 6. The delegated powers in the bill are identified and explained in a memorandum for the Committee by the Department of Trade and Industry, which is printed at Annex 2 to this Report. 7. The bill contains a large number of Henry VIII powers – at clauses 11(5), 16(5), 29(9), 35(3), 52(3), 65(1), 71(5) and 81(1) (new section 21A(5)) and paragraph 61(b) of Schedule 1. Those in clause 71(5) and paragraph 61(b) of Schedule 1 are subject to negative procedure only. The rest are subject to affirmative procedure. We wish to draw the attention of the House to the powers in clauses 52(3) and 65(1) relating to exceptions from provisions prohibiting discrimination on grounds of religion or belief. We also draw attention to clause 16(3) with respect to Codes of Practice. Religion or belief discrimination 8. Clause 52 sets out exceptions from the non-discrimination rule in clause 51 for educational establishments. Clause 52(3) enables the Secretary of State to alter the list of exceptions and to deal with the application of the “justification” rule in clause 46(3)(d) in relation to clause 51. This is explained at paragraph 44 of the memorandum. There is also a power in clause 65(1) to amend Part 2 (Discrimination on Grounds of Religion or Belief) by creating a new exception, varying an exception or removing an exception. This power too is subject to the affirmative procedure. 9. The power in clause 65(1) is significantly wider than that in clause 52(3) (and, it appears to us, subject to slightly different consultation requirements, makes the power in clause 52(3)(a) and (b) redundant, despite comments to the contrary at paragraph 45 of the memorandum). It can be used to re-write clauses 50, 52, 53(2) and (3), 54(3) and (4), 58, 59, 60, 61, 62, 63 and 64. It cannot be used to alter what is meant by discrimination (clause 46) or harassment (clause 47) or the basic nature of the prohibitions (clauses 48, 49, 51, 53(1), 55, 56 and 57). 10. We have considered the explanation of the width of this power set out at paragraph 51 of the memorandum, namely that “religion and belief differ significantly from other areas of discrimination … in that a religion may be chosen and changed. The philosophical content of a religion may evolve, as may the institutions that support it”. We believe that this explanation provides a wholly inadequate justification for a power which would enable removal (not just variation) of all or any of the exceptions in Part 2 of the bill. In our view, the power in clause 65(1) requires considerably more justification, in the absence of which the House will wish to consider DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3 whether it finds such an extensive delegation of power to be acceptable. Clause 16(3) 11. The procedure for bringing into force the Commission’s Codes of Practice involves laying the draft before Parliament and allowing for a resolution of either House within 40 days that it should not proceed. This follows the existing provisions of the sex, race and disability discrimination legislation. 12. Clause 16(3) enables the Secretary of State to revoke a Code, at the request of the Commission, by order subject to no Parliamentary procedure. This is explained at paragraph 19 of the memorandum. But section 53A(6)(c) of the Disability Discrimination Act 1995, on which clause 16(3) is based, provides for the revoking order to be subject to negative procedure. We assume that this is because revoking an existing code can by itself raise policy issues. We believe that the same considerations apply to clause 16(3) and recommend, therefore, that revocation of a Code under clause 16(3) should be subject to the negative procedure.
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