Table of contents
On 12 January 2023, the House of Lords is due to debate two interrelated committee reports on the government’s use of delegated powers and the impact on parliamentary scrutiny:
- House of Lords Delegated Powers and Regulatory Reform Committee, ‘Democracy denied? The urgent need to rebalance power between Parliament and the executive’, 24 November 2021, HL Paper 106 of session 2021–22
- House of Lords Secondary Legislation Scrutiny Committee, ‘Government by diktat: A call to return power to Parliament’, 24 November 2021, HL Paper 105 of session 2021–22
1. What did the reports say?
The committees raised concerns about the extent of the government’s use of delegated powers to set out its legislative intent, rather than measures being set out in primary legislation. Delegated powers allow ministers to use delegated legislation (usually in the form of statutory instruments) to set out laws or details of laws which would otherwise need another bill. The DPRRC explains that these powers are “often practical and sensible: for example, a bill may set out all the key elements of a policy, but allow a minister to make minor modifications to the policy as circumstances change over time, by making a set of regulations”.
However, the committees explained that the use of these powers can also minimise parliamentary scrutiny, as ministers’ use of delegated powers would not receive the same levels of scrutiny as primary legislation and Parliament has no powers to amend secondary legislation. For example, in its report, the SLSC stated:
This report is intended to issue a stark warning—that the balance of power between Parliament and government has for some time been shifting away from Parliament, a trend accentuated by the twin challenges of Brexit and the Covid-19 pandemic. A critical moment has now been reached when that balance must be re-set: not restored to how things were immediately before these exceptional recent events but re-set afresh.
Over recent years, bills—which become acts of parliament and which are subject to robust scrutiny in their passage through Parliament—have often provided only the broadest outlines of the direction of policy travel, with all the detail that will have a direct impact on individual members of the public left to secondary legislation. And the more that is left to secondary legislation, the greater the democratic deficit because, in contrast to primary legislation, there is relatively scant effective parliamentary scrutiny of secondary legislation; it cannot be amended; in some cases, it may become law without any parliamentary debate; and, because the decision to accept or reject is all or nothing, very rarely will the Houses reject it.
The committees stated that it was because of their serious concerns that they had worked together on the issue. They held joint evidence sessions and published their reports in parallel, setting out a number of the same concerns and recommendations.
Specific concerns and recommendations raised by both committees included:
- Restricting the use of ‘skeleton legislation’. This refers to bills or clauses with scarce details on specific measures, and which instead leave it to be fleshed out using delegated legislation. Both committees argued that there needed to be more scrutiny of these bills and the secondary legislation made under them. DPRRC also called for an “explicit declaration in the delegated powers memorandum, with a full justification including why it is necessary and how the scope of the skeletal provision is constrained”. Both committees believed that the use of skeleton legislation was rarely justified.
- Limiting ‘legislative sub-delegation of power’. This refers to legislative powers granted to ministers through delegated legislation. DPRRC stated that “tertiary legislation has as much legal force as any other form of law and we conclude that conferring legislative sub-delegation of power is potentially a more egregious erosion of democratic accountability than a simple delegation to a minister. We recommend that sub-delegation should be limited and specific, and its exercise subject to parliamentary scrutiny and, in certain circumstances, to a duty to consult”. Both committees called for the government to fully justify the use of these powers.
- ‘Disguised’ legislation. DPRRC called this “perhaps the most striking and disturbing recent development”. It referred to ministers exercising legislative powers using various devices—such as mandatory guidance, codes of practice etc—which may not be subject to parliamentary scrutiny. DPRRC gave a number of examples, including in the Police, Crime, Sentencing and Courts Bill. It said that ‘disguised legislative instruments’ can be confusing to Parliament and the public and should not generally be used. It said that “requirements which have legislative effect should always be expressed in legislative language, either in primary or secondary legislation, and subject to parliamentary oversight”. SLSC also noted inconsistencies between legislation and guidance (particularly in relation to the pandemic regulations) and wanted the government to maintain a clearer distinction between the two.
- Addressing the culture of using delegated legislation. Both committees believed that there needed to be a culture shift within government on the use of delegated powers and delegated legislation, with the DPRRC believing it is often used for “political expediency”. The SLSC argued that the government, when deciding whether a bill should include delegated powers, should “take into account to the fullest extent possible the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of government to Parliament”. DPRRC recommended specific changes to government guidance, including the Cabinet Office’s ‘Guide to making legislation’.
The committees also highlighted their own specific concerns and recommendations. For example, DPRRC brought up the use of use of Henry VIII powers. This refers to delegated powers that allow ministers to change primary legislation using regulations. The committee has often highlighted the use of these, and stated in this report:
Henry VIII powers have always been contentious because of the disparity in the quality of parliamentary scrutiny of primary and delegated legislation. We acknowledge that they are, on occasion, appropriate but reject their inclusion ‘just in case’ and reassert our view that there should be a presumption that regulations made under Henry VIII powers should be subject to the affirmative resolution procedure.
The SLSC raised additional matters, including:
- the importance of high-quality legislation and supporting materials, in particular the need for impact assessments to be available at the same time an instrument is considered by both Houses
- a suggestion to increase the use of sunset provisions in secondary legislation, to improve transparency and encourage departments to actively monitor whether regulations are still needed
- ensuring there is sufficient time for effective parliamentary scrutiny of secondary legislation—therefore avoiding made affirmative instruments and giving full justification for legislation that does not meet normal timescales
Due to the weight of their concerns about these issues, both committees agreed that their end-of-session reports on the use of delegated powers should be subject to regular House of Lords debates going forward. The committees agreed that addressing the issues raised was a matter of urgency, but that it also needed monitoring on a regular basis going forward.
Summing up its views, the DPRRC stated:
As we said at the outset, parliamentary scrutiny is a cornerstone of parliamentary democracy. We have never denied an appropriate role for such legislation but one clearly and specifically defined. We have, however, refuted the argument that parliamentary legislative procedures cannot respond swiftly to address urgent unforeseen situations. And there can be no better proof of the case than in the way Parliament responded to Brexit and the pandemic. As our historic account of delegated legislation shows, there have been times when the government of the day have been impatient of parliamentary legislative constraints. We detect such impatience today. But Parliament rightly demands patience in fulfilling its most important role—the making of our laws.
Further details, discussion and recommendations can be found in the full reports.
2. What was the government’s response?
The government published individual responses to both reports on 24 January 2022.
Responding to the DPRRC, the government agreed with the ongoing importance of parliamentary scrutiny, stating that “the essential scrutiny role of both Houses of Parliament continues to ensure improvements and amendments are made to the government’s legislative programme”. However, it did not agree that this scrutiny had been curtailed and that laws were being passed with “little or no scrutiny”. For example, it said that all amendments to bills were debated in the Lords and that reasonable requests to debate negative instruments were accommodated.
The response included specific comment on the points set out above:
- Skeleton legislation. The government defended its use of ‘skeleton legislation’ (which it referred to as ‘framework legislation’), stating that this approach was sometimes most appropriate. For example, it mentioned the Professional Qualifications Bill as one benefitting from this approach, and said that this was explained in the delegated powers memorandum for the bill. It did not agree that framework legislation resulted in a “democratic deficit”, as the bill and its powers will still have been debated by Parliament. It also did not agree with the committee’s recommendation to make a declaration when using framework legislation, stating that it would be too hard to define. However, it said it would work (via its bill scheduling) to ensure that the Lords can have the DPRRC’s report on the bill before committee stage and also said it would update the ‘Guide to making legislation’ with principles to consider when using delegated legislation.
- Sub-delegation of powers. The government agreed that there should be a presumption against sub-delegation of powers and that its use should always be “fully justified”. It said it would update guidance so that the ‘policy background’ sections in explanatory memoranda for delegated legislation would also provide an explanation for the sub-delegation.
- Guidance and disguised legislative instruments. The government said that its policy is that guidance should “not be used to circumvent the usual way of regulating a matter”. It said it accepted that rules that must be followed should be set out in regulations, not in guidance. It said that the purpose of guidance is to “aid policy implementation by supplementing legal rules”. On other matters of ‘disguised legislation’ (such as directions and codes of practice), the government argued that the rationale for their use is set out in the delegated powers memorandum. It said that Parliament had many opportunities to scrutinise these provisions during the passage of a bill.
- Henry VIII powers. The government said it would continue to ensure delegated powers memoranda contain “full justifications” for Henry VIII powers. It also said it would improve departmental guidance on the issue and highlighted the training sessions provided by the Office of the Parliamentary Counsel on the use of delegated powers. However, it asserted that Henry VIII powers were sometimes necessary, and that “just in case” powers may be needed where it is not immediately possible to be sure all necessary consequential amendments are identified.
- Culture of using delegated legislation. The government said it did not agree that “bill teams are being encouraged to regard the inclusion of delegated powers, and the preparation of a delegated powers memorandum, as merely a political or practical matter”. It again stressed that it would be updating guidance and said that “every delegated power included in a bill will continue to be set out and justified in the delegated powers memorandum”. It reiterated that it was then the duty of Parliament to scrutinise each bill and its powers.
Much of the above was also set out in the government’s response to the SLSC. In addition, the government addressed the committee’s points on:
- Importance of impact assessments and supporting information. The government accepted the importance of providing full analysis of measures introduced by delegated legislation. It said that this had not always been possible during the pandemic and acknowledged that delays in impact assessments were “not best practice”. However, it argued this approach had to be taken due to the urgent nature of the situation.
- Sunset provisions. The government explained how it currently approached the possible use of sunset provisions in delegated legislation, saying that the decision lies with the department and is based on a number of factors. As to whether sunset provisions should be used more, the government said it was considering this as part of its review of the “framework for better regulation”.
The government acknowledged the important work of both committees and said it carefully considered their reports and comments. It also told the DPRRC that the leaders of both Houses would be happy to give evidence to the committee to support its end-of-session reports. However, it said it would be up to the committees and the Committee Office to ensure there were regular debates on their end-of-session reports.
3. What has happened since?
Both committees commented again on the situation in their end-of-session reports. They stated that they were disappointed with the response from the government, and reaffirmed their commitment to work together to highlight the issue. The reports also highlighted other issues of concern to the committees arising from their work across the session; for example, the SLSC listed the following issues with delegated legislation:
- restricting parliamentary scrutiny
- failing to provide information on impact
- inadequate consultation
- poor quality explanations
- the availability and appropriate use of guidance
These reports, and the government’s response to them, can be found here:
- Delegated Powers and Regulatory Reform Committee, ‘End of session 2021–22 report’, 26 May 2022, HL Paper 8 of session 2022–23; and ‘Government response’, 19 July 2022
- Secondary Legislation Scrutiny Committee, ‘What next? The growing imbalance between Parliament and the executive: End of session report 2021–22’, 28 April 2022, HL Paper 200 of session 2021–22; and ‘Government response’, 7 July 2022
On 20 July 2022, the committees held a joint evidence session on the issue, questioning the then Leader of the House of Commons, Mark Spencer, the then Leader of the House of Lords, Baroness Evans of Bowes Park, and First Parliamentary Counsel Dame Elizabeth Gardiner.
Opening the session, the chair of the SLSC, Lord Hodgson of Astley Abbotts, criticised the government’s response to the committees’ reports, stating:
The government responses to the committees’ two reports on the relationship between Parliament and the executive were almost wholly negative, in places very brief and failed to engage in the fundamental issues raised in the reports.
Responding to this, Mark Spencer defended the government’s stance, arguing that it had accepted a number of recommendations and did respect the committees’ work. For example, he stated:
I start by saying that I am a little disappointed with your negativity. I think that the government do respect the work that the two committees do. I think that you do a great deal to improve, enhance and advise government on the way in which we progress legislation.
I am not sure that the evidence supports what you say—that we ignore everything you do. Of the 22 DPRRC’s recommendations, I think we have accepted 14 in full or in part. That does demonstrate that we do listen and take seriously what you say.
Following up on this, Baroness Evans and Dame Elizabeth Gardiner explained that the government had been updating guidance and training on the use of delegated powers. This included updates to the Cabinet Office ‘Guide to making legislation’, which were subsequently published online on 15 August 2022. For example, the new version now incorporates the statement of principles recommended in the DPRRC report.
Despite these assurances, the committees said they maintained their concerns about the use of delegated powers and their scrutiny and raised these again with the government during the evidence session. This included concerns about policy being set through the use of delegated powers, the “increase” in the use of ‘disguised legislation’ (such as guidance and codes of practice), late impact assessments, and the government’s response to concerns raised by the committees in their regular reports. Noting examples such as the Schools Bill and the Northern Ireland Protocol Bill, they said they were still seeing examples of many of these issues and wanted to improve the system for the benefit of the public.
4. Read more
- House of Lords Library, ‘Skeleton bills and delegated powers’, 21 December 2021; and Debate on ‘Legislation: Skeleton bills and delegated powers’, HL Hansard, 6 January 2022, cols 759–94
- House of Lords Secondary Legislation Scrutiny Committee, ‘Losing impact: Why the government’s impact assessment system is failing Parliament and the public’, 10 October 2022, HL Paper 62 of session 2022–23; and ‘Government response’, 15 December 2022
- Cabinet Office, ‘Strathclyde Review: Secondary legislation and the primacy of the House of Commons’, December 2015, Cm 9177
- Hansard Society, ‘Delegated legislation review’, November 2021; ‘Compendium of legislative standards for delegating powers in primary legislation’, 25 April 2022; and ‘Toolkit for scrutinising delegated powers in bills’, September 2022