ORDERS AND REGULATIONS (Hansard, 24 February 1999)

§ Mr. Quentin Davies
I beg to move amendment No. 4, in page 15, line 4, leave out from 'shall' to end of line 5 and insert 'not be made unless a draft of it has been laid before, and approved by resolution of, each House of Parliament.'. The reason for the amendment is that the Bill is marked—deformed, even—by an extraordinary number of what are known as Henry VIII clauses. Those are clauses in which the Government simply write themselves a blank cheque for powers to produce regulations on just about everything under the sun. They give no indication of what those regulations might contain, or of any limitation on them.
The Bill contains even more such clauses than most Bills brought forward by this Government—for example, clauses 9, 10, 13, 14, 15—which is especially sinister—and 24, which deals with Northern Ireland. There is far too much of that sort of thing, and we have tabled the amendment to protect the House and to place some limitation on the freedom of the Executive.
Power has gone to the Government's head, so the amendment would replace the Bill's provision for resolutions to be passed by negative procedure with a requirement that affirmative resolutions be passed. That would ensure that the House has the opportunity to examine the resolutions when they are put forward.

§ The Minister of State, Department of Social Security (Mr. Stephen Timms)
This amendment would require a debate in both Houses before any Order in Council or 435 regulations could be made by the Secretary of State or the board of Inland Revenue under the powers in the Bill. However, regulations primarily will be about the detailed procedures for appeals to go down the tax appeals route.
I suggest to the House that these are not matters of such sufficient moment that we should set down a mandatory requirement for debates on them. The House will recall that the powers in the Social Security Act 1998 to make regulations about decisions, and appeals to the unified appeals tribunals against those decisions, generally use the negative resolution procedure, as do the Taxes Management Act 1970 powers to make regulations about tax appeals.
I freely accept that the Bill, in clauses 23 and 24, contains broader powers to make secondary legislation, which will also be made under the negative resolution procedure. The appropriateness of this was considered by the Select Committee on Delegated Powers and Deregulation in another place. It is worth quoting from its first report of this Session, dated 9 December 1998, at some length. It states: All the powers in the Bill are subject to negative procedure … the Department's memorandum gives an account of each and the Committee finds it necessary here to refer only to the Henry VIII powers discussed in the next paragraphs. The hon. Member for Grantham and Stamford (Mr. Davies) said that the Bill had an extraordinary number of Henry VIII powers, but in fact it has only two. The paragraphs mentioned at the end of the quotation from the House of Lords Select Committee cover what are now clauses 23 and 24. In both cases, the Committee considered it appropriate that the negative procedure, as provided in the Bill, should apply. Accordingly, the Committee's recommendation, at paragraph 7, was as follows: The Committee has noted the two Henry VIII powers. There is nothing in the Bill which it is necessary to draw to the attention of the House. Let me add to that reassurance. For the avoidance of any possible doubt, nothing in clause 25 downgrades an existing requirement in social security legislation for the affirmative procedure into the negative procedure. If there were any such downgrading, the hon. Gentleman would be quite right to express concern. For example, section 176(1) of the Social Security Contributions and Benefits Act 1992 puts under the affirmative procedure those regulations that increase the rate of class 2 national insurance contributions for certain earners. It would not be right to convert such important matters to the negative procedure, and the Bill does not do so. Paragraph 30 of schedule 3 says: In Section I76(3)(a) of the Social Security Contributions and Benefits Act 1992 (statutory instruments subject to affirmative procedure), after 'Secretary of State,' there is inserted 'the Treasury or the Commissioners of Inland Revenue,'. Paragraph 30 makes it clear, therefore, that powers subject to the affirmative procedure retain that procedure on their transfer to the Treasury or Inland Revenue, and it is right that that should be so.
In the main, social security regulations are made under the negative procedure, as has long been the case. Nothing in the Bill changes the degree of scrutiny to which the 436 House has been entitled in the past. In the light of those assurances, I hope that the hon. Gentleman will withdraw his amendment.

§ Mr. Quentin Davies
I am grateful to the Minister, but I cannot pretend that I am happy with those assurances. The Government are taking far too many powers to make resolutions that are subject to the negative procedure. There is a strong argument for considering how the House handles statutory instruments upstairs, but that is a different subject and I cannot go into it now. The fact that rafts of new powers to make regulations of this kind are being created both in the Government's social security legislation and in many other Bills should give urgency to that argument. In the light of what the Minister has said, however, I beg to ask leave to withdraw the amendment.