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HOUSE of LORDS Delegated Powers and Regulatory Reform HOUSE OF LORDS Delegated Powers and Regulatory Reform Committee 16th Report of Session 2003-04 Civil Partnership Bill [HL] – including Government amendment for Committee Stage Employment Relations Bill Fire and Rescue Services Bill – Government amendment for Committee Stage Ordered to be printed 5 May and published 6 May 2004 London : The Stationery Office Limited £price HL Paper 86 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] 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 was 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. Sixteenth Report CIVIL PARTNERSHIP BILL [HL] – INCLUDING GOVERNMENT AMENDMENT FOR COMMITTEE STAGE Introduction 1. This bill is to enable same-sex couples to obtain legal recognition of their relationship by registering as civil partners. The partnership has legal consequences, both with respect to each of the couple and to other people. The bill contains slightly different provisions for England and Wales, Scotland and Northern Ireland respectively. 2. In this Report we set out our conclusions on the bill as introduced. We have also been invited to comment on a Government amendment to the bill to be taken at Committee Stage. This Report includes our comments on the amendment. The Delegated Powers in the Bill 3. The bill contains a number of delegated powers, all of which are identified in the memorandum from the Department of Trade and Industry (DTI). The memorandum is printed at Annex 1 to this Report. Many of the delegated powers are drafted by analogy with the law in relation to marriage. Whilst the analogy provides useful precedents, our conclusions on the appropriateness (or otherwise) of the delegations in this bill have not relied solely on the precedents. 4. We wish to draw the attention of the House to only one of the delegated powers in the bill, the power in clause 187. Clause 187 5. Clause 187 enables a Minister of the Crown by order to make amendments of enactments, subordinate legislation or Church legislation relating to pensions, etc. This provision is explained in paragraphs 93 and 94 of the memorandum. Except in the case of judicial pensions, any order will be subject to affirmative procedure if it amends an Act. Those instruments not subject to affirmative procedure are subject to negative procedure. (Where the power is exercised by Scottish Ministers under clause 187(2), the affirmative or negative procedure in the Scottish Parliament applies.) 6. The power is limited to making provision considered appropriate for the purpose of, or in connection with, making provision with respect to pensions, allowances or gratuities for the surviving civil partners or dependents of deceased civil partners. None the less, it is a very wide provision. Indeed, we note that clause 187(4) emphasises that the provision made may be the same as, or different to, that made with respect to widows or dependents of those who are not civil partners. 7. The power in clause 187 is, in our view, inappropriately wide. We recommend that either some indication of the policy with respect to surviving civil partners or their dependents should be included on the 2 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE face of the bill or, failing this, any order made under clause 187, whether or not it amends an Act, should be subject to affirmative procedure. Amendment to be moved in Committee 8. We have been invited to consider a Government amendment which would add a new clause (after clause 51) enabling the Lord Chancellor to validate civil partnerships in circumstances where it appears to him that a civil partnership is, or may be, void under clause 48(b) of the bill. We note that the exercise of the power is subject to the special parliamentary procedure, which includes requirements that a draft of the order should be advertised, that the Lord Chancellor should consider all written objections and, if it appears to him necessary, hold a local inquiry. 9. The delegated power is described in a letter sent to all Members of the House who spoke at Second Reading by the Baroness Scotland of Asthal, Minister of State at the Home Office. The relevant extract from the letter is set out in Annex 1 to this Report. 10. There is nothing in the amendment to which the Committee wishes to draw the attention of the House. Conclusion 11. We draw the attention of the House to the recommendation in paragraph 7. There is nothing else in this bill on which the Committee wishes to report to the House. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3 EMPLOYMENT RELATIONS BILL Introduction 12. This seven Part bill covers a number of areas, including trade union recognition, industrial action law and the rights of trade union members. The Delegated Powers 13. There are delegated powers at clauses 9 (new paragraph 27C of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”)), 12 (new paragraph 119C), 14 (new paragraph 166(1)-(2B)), 15 (new paragraph 166A), 16( new paragraph 166B), 17( new paragraphs 169A–C), 19 (new paragraph 171A(2) and (3)), 39, 40, 50 and 55. Unusually, all of these powers (apart from the commencement order power at clause 55) have a Henry VIII element and are made subject to affirmative procedure (in the case of clause 40, before the Northern Ireland Assembly). There are also a clarification of existing powers to issue codes of practice (clauses 8 and 9) and an amendment to an existing order-making power (clause 37). 14. The delegated powers are explained in a memorandum from the Department of Trade and Industry (DTI). The memorandum is printed at Annex 2 to this Report. 15. We wish to draw to the attention of the House the delegated powers in clauses 9, 12, 14, 16 and 39. With respect to clauses 14 and 39, we do not make any recommendation but, in view of the width of the power in each case, we suggest that, given the absence of a satisfactory explanation in the material before the Committee, the House may wish to invite the Government to provide further justification. Clauses 9 and 12 16. Clause 9 is about unfair practices in relation to recognition ballots. Clause 12 is about unfair practices in relation to derecognition ballots. The new powers (including the background) are explained in paragraphs 44 to 50 of the memorandum from the DTI. The power in each case is essentially the same – the Secretary of State is enabled to make provision by order about the consequences of a decision of the Central Arbitration Committee (CAC) that there has been an unfair practice. The order may, in particular, amend any provision of Schedule A1 to the 1992 Act.
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