Questions have been raised about giving the Secretary of State open-ended powers to change legislation in the draft Rail Reform Bill.
In its submission to the pre-legislative scrutiny inquiry of the draft Rail Reform Bill, the Delegated Powers and Regulatory Reform Committee, has expressed concern over Clause 8: the power for Secretary of State to make provision by regulations about railway transport services.
It would give the Secretary of State power to make provision by regulations about:
– The authorisation of persons to operate train services.
– The operation of, and access to, railway infrastructure and ancillary services.
– The management of persons operating train services, infrastructure operators and ancillary services providers.
– Competition in the market or markets for the provision of ancillary services.
The Delegated Powers and Regulatory Reform Committee has said: “This is a broad power to make provision by regulations about what appear to be core aspects of the operation of the railways. It would give Ministers considerable discretion to legislate in this area entirely by statutory instrument rather than under the fuller scrutiny given to bill provisions.”
It is something that has already raised the eyebrows of the industry, with the Office of Rail and Road, in its submission, recognising the Government’s desire for strong ministerial controls over the integrated rail body, but expressing concerns that “if used inappropriately the power could impact on the IRB’s ability to carry out its role autonomously and be clearly accountable for its decisions”.
Questions have also been raised by others. Both the Rail Freight Group and the Railway Industry Association (RIA) flagged concerns in their evidence to the Transport Select Committee. RIA Policy Director Robert Cook, speaking at the Transport Select Committee last week, called for the Secretary of State open ended powers to be “reconsidered”, particularly the power of direction (another power under the rail reform proposals).
In its submission to the Transport Select Committee, the Delegated Powers and Regulatory Reform Committee, said: “It signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by ministers.”
Clause 8 is an example of what the committee refers to as a “skeleton clause”, as it provides for the policy change that it is intended to implement to be left entirely to delegated legislation.
“The Committee’s guidance for departments requires that, if a bill contains a skeleton clause, the Delegated Powers Memorandum that a department must prepare to assist the committee with its scrutiny of the bill should provide a full justification for this approach, including why no other approach was reasonable to adopt and how the scope of the skeleton provision is constrained,” the committee has written in its submission.
“The committee considers that the Delegated Powers Memorandum provided by the Department for Transport falls well short of doing this. Indeed it fails to meet the basic requirements that it should and is drafted in broad and vague terms.”
