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HOUSE of LORDS Delegated Powers & Regulatory Reform HOUSE OF LORDS Delegated Powers & Regulatory Reform Committee 4th Report of Session 2007-08 Channel Tunnel Rail Link (Supplementary Provisions) Bill Criminal Justice and Immigration Bill Crossrail Bill European Communities (Finance) Bill House of Lords (Amendment) Bill [HL] Sale of Student Loans Bill Government amendments: Child Maintenance and Other Payments Bill Children and Young Persons Bill [HL] Local Transport Bill [HL] Regulatory Enforcement and Sanctions Bill [HL] Government responses: Child Maintenance and Other Payments Bill Children and Young Persons Bill [HL] Human Fertilisation and Embryology Bill [HL] Regulatory Enforcement and Sanctions Bill [HL] Ordered to be printed 30 January and published 31 January 2008 Published by the Authority of the House of Lords London : The Stationery Office Limited £price HL Paper 49 The Delegated Powers and Regulatory Reform Committee The House of Lords appoints the Committee each session with the terms 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 degree of parliamentary scrutiny; to report on documents and draft orders laid before Parliament under sections 14 and 18 of the Legislative and Regulatory Reform Act 2006; and to perform, in respect of such draft orders, and in respect of subordinate provisions orders made or proposed to be made under the Regulatory Reform Act 2001, the functions performed in respect of other instruments and draft instruments by the Joint Committee on Statutory Instruments”. Membership The members of the Delegated Powers and Regulatory Reform Committee are: The Lord Armstrong of Ilminster GCB CVO Rt Hon. the Lord Boyd of Duncansby PC QC The Lord Brett The Viscount Eccles CBE The Lord Faulkner of Worcester The Baroness Fritchie DBE The Baroness Gardner of Parkes The Lord Goodhart QC (Chairman) The Lord Razzall CBE The Lord Shaw of Northstead DL Registered interests Members’ registered interests may be examined in the online Register of Lords’ Interests at www.publications.parliament.uk/pa/ld/ldreg.htm. The Register may also be inspected in the House of Lords Record Office and is available for purchase from the Stationery Office. Publications The Committee’s reports are published by the Stationery Office by Order of the House in hard copy and on the internet at 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 www.parliament.uk/about_lords/about_lords.cfm. Contacts for the Delegated Powers and Regulatory Reform Committee Any query about the Committee or its work should be directed to the Clerk of the Delegated Powers and Regulatory Reform Committee, Delegated Legislation Office, House of Lords, London, SW1A 0PW. The telephone number is 020-7219 3103 and the fax number is 020-7219 2571. The Committee’s email address is [email protected]. History In February 1992, the Select Committee on the Committee work of the House, under the chairmanship of Earl 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, paragraph 133). The Committee recommended setting up a delegated powers scrutiny committee 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 experimentally in the following session. It was established as a sessional committee from the beginning of Session 1994–95. After the enactment of the Deregulation and Contracting Out Act 1994, the Committee was given the additional role of scrutinising deregulation proposals under that Act and the Committee became the Select Committee on Delegated Powers and Deregulation. In April 2001, the Regulatory Reform Act 2001 expanded the order-making power to include regulatory reform and the Committee, renamed the Delegated Powers and Regulatory Reform Committee, took on the scrutiny of regulatory reform proposals under that Act. The Committee now scrutinises legislative reform orders under the successor to the 2001 Act, the Legislative and Regulatory Reform Act 2006. DELEGATED POWERS AND REGULATORY REFORM COMMITTEE 3 CONTENTS Page Bills Channel Tunnel Rail Link (Supplementary Provisions) Bill 5 Criminal Justice and Immigration Bill 5 Crossrail Bill 9 European Communities (Finance) Bill 11 House of Lords (Amendment) Bill [HL] 11 Sale of Student Loans Bill 11 Government amendments Child Maintenance and Other Payments Bill 11 Children and Young Persons Bill [HL] 12 Local Transport Bill [HL] 12 Regulatory Enforcement and Sanctions Bill [HL] 12 Government responses Child Maintenance and Other Payments Bill 12 Children and Young Persons Bill [HL] 13 Human Fertilisation and Embryology Bill [HL] 13 Regulatory Enforcement and Sanctions Bill [HL] 13 Appendices 1: Criminal Justice and Immigration Bill – memorandum 14 2: Crossrail Bill – memorandum 69 3: Sale of Student Loans Bill – memorandum 85 4: Child Maintenance and Other Payments Bill – amendments 87 5: Children and Young Persons Bill [HL] – amendments 93 6: Local Transport Bill [HL] – amendments 94 7: Regulatory Enforcement and Sanctions Bill [HL] – amendments 101 8: Child Maintenance and Other Payments Bill — response 102 9: Children and Young Persons Bill [HL] — response 105 10: Human Fertilisation and Embryology Bill [HL] — response 107 11: Regulatory Enforcement and Sanctions Bill [HL] — response 108 Fourth Report CHANNEL TUNNEL RAIL LINK (SUPPLEMENTARY PROVISIONS) BILL 1. This bill does not delegate legislative power. CRIMINAL JUSTICE AND IMMIGRATION BILL 2. This substantial bill of 14 parts, the contents of which are summarised in paragraphs 4 to 74 of the Explanatory Notes, contains a large number of delegated powers. The Ministry of Justice has provided a memorandum, printed at Appendix 1, explaining the reasons for most of the delegations and the choice of procedure in each case. Henry VIII Powers 3. There are Henry VIII powers in clauses 4(3), 15(6), 16(6), 29(2), 111(7), 141(4), 186(6), 190 and 197(4), paragraphs 27 and 35(3) of Schedule 1, paragraphs 10 and 25 of Schedule 2, paragraph 17(2) of Schedule 3, paragraph 6 of Schedule 5, paragraph 2(4) of Schedule 7, paragraph 3 of Schedule 18, paragraph 6 of Schedule 19, paragraph 7(3) of Schedule 29 and paragraph 11 of Schedule 35. Of those, the powers in the following provisions are made subject only to the negative procedure: • Clause 190 (Power to suspend the operation of section 127 of the Criminal Justice and Public Order Act 1994) • Paragraph 10 of Schedule 2 (which enables the amendment by order of the amounts of fines specified in four provisions of that Schedule, but only in so far as is necessary to reflect changes in the value of money) • Paragraph 17(2) of Schedule 3 (which enables the amendment by order of that Schedule, which applies in relation to Northern Ireland, in consequence of particular kinds of future changes to the law of Northern Ireland) • Paragraph 7(3) of Schedule 29 (which enables the amendment by order of the amount of a financial penalty specified in that paragraph, a power which could only be exercised so as to reflect a change in the amount set out under international arrangements relating to the enforcement abroad of such penalties) Apart from the power conferred by clause 190, which we consider below, we are satisfied that the negative procedure is not inappropriate in each of the above cases. Release of prisoners after recall — clause 29(2) 4. Clause 29(2) inserts new sections 255A to 255D into the Criminal Justice Act 2003 to introduce new arrangements for the release of prisoners who 6 DELEGATED POWERS AND REGULATORY REFORM COMMITTEE have been recalled to prison under section 254 following their earlier release. New section 255A provides for a prisoner to be considered for “automatic release” at the end of the period of 28 days beginning with the date of his return to prison. Where the prisoner is not automatically released, new section 255C requires the referral of his case to the Parole Board where he has made representations under section 254(2) within that same period of 28 days. New sections 255A(9) and 255C(7) confer power on the Secretary of State to, in effect, substitute by affirmative order a different number of days for either of those periods. 5. These powers could be exercised in a way which could postpone prisoners’ right to automatic release, or postpone the referral of their cases to the Parole Board. In paragraph 38 of its memorandum, the Department explains that the affirmative procedure is appropriate because the exercise of either power would involve the amendment of primary legislation. The Department has not however explained why these powers are thought to be necessary, nor in what circumstances the power would be used. We draw this to the attention of the House, so that the House might seek a justification for this delegation. Her Majesty’s Commissioner for Offender Management and Prisons and the Northern Ireland Commissioner for Prison Complaints — Parts 4 and 5 6. Clauses 50 to 97 (Parts 4 and 5) make provision for Her Majesty’s Commissioner for Offender Management and Prisons and for the Northern Ireland Commissioner for Prison Complaints. The Minister has announced that he intends to oppose the question in Committee that these clauses stand part of the bill1. Accordingly, we have not considered the delegations proposed in these two Parts. Alternatives to prosecution for persons under 18 — Schedule 18, paragraph 3 7. Schedule 18, introduced by clause 98, inserts new sections 66A to 66H into the Crime and Disorder Act 1998, introducing provision for “youth conditional cautions” for offenders aged 16 or 17.
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