On 6 January 2022, the House of Lords is scheduled to hold a debate on the “increasing numbers of skeleton bills and the associated use of delegated powers within them”. Baroness Cavendish of Little Venice (Crossbench) tabled the motion and will lead the debate.

What is a skeleton bill?

A ‘skeleton bill’, also sometimes known as a ‘framework bill’, is a bill that may set out the principles for a policy but does not include substantial detail on how that policy will be given practical effect. Instead, these bills seek to give broad powers to ministers or others to fill in this detail at a later stage. This will most often be via delegated legislation, also known as secondary or subordinate legislation, brought forward after the bill has been passed by both Houses of Parliament and become law. Sections of bills which take the same approach of giving powers to ministers and others to fill in policy detail later are known as ‘skeleton clauses’.

The House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) scrutinises bills for these ‘delegated powers’ that transfer legislative power from Parliament to ministers or others. It has summarised the characteristics of a skeleton bill or skeleton clauses in guidance for government departments. This defines bills as skeletal, or containing skeleton clauses, “where the provision on the face of the bill is so insubstantial that the real operation of the act, or sections of an act, would be entirely by the regulations or orders made under it”.

Why are skeleton bills seen as a problem?

In its guidance for government departments, the DPRRC asserts that “skeleton legislation should only be used in the most exceptional circumstances”. It says that routine use of skeleton legislation is at odds with fundamental principles of parliamentary democracy, a foundation of which is the accountability of the executive to Parliament. This is because different scrutiny processes apply to primary and secondary legislation. While both Houses may routinely amend bills, neither may amend statutory instruments (often abbreviated to ‘SIs’, which constitute the most common form of delegated legislation). In addition, both Houses very rarely reject them.

What has Parliament said about skeleton bills?

The DPRRC is among several parliamentary committees that have criticised the Government’s use of skeleton legislation in recent years. Others include the House of Lords Constitution Committee and the House of Lords Secondary Legislation Scrutiny Committee (SLSC).

In November 2018, the Constitution Committee published a report on the delegation of powers and the legislative process. The report listed skeleton bills as one of several “recurring problems” related to delegated powers. Citing the DPRRC’s guidance, it cautioned that the use of skeleton bills was unlikely to be acceptable in any circumstances. The committee said:

Skeleton bills inhibit parliamentary scrutiny, and we find it difficult to envisage any circumstances in which their use is acceptable. The Government must provide an exceptional justification for them, as recommended by the DPRRC’s guidance for departments; it cannot rely on generalised assertions of the need for flexibility or futureproofing.

In its report, the committee warned the Government on its use of delegated powers. It said that in cases where SIs were used to give effect to significant policy decisions, “without a genuine risk of defeat, and no amendment possible, Parliament is doing little more than rubber-stamping the Government’s secondary legislation”. It deemed this “constitutionally unacceptable”, later adding:

If the Government’s current approach to delegated legislation persists, or the situation deteriorates further, the established constitutional restraint shown by the House of Lords towards secondary legislation may not be sustained.

Although it is rare for the House of Lords to reject secondary legislation, there have been earlier suggestions that the Lords could threaten to reject SIs made under powers conferred in skeleton bills. For example, the Joint Committee on Conventions, in a report published in November 2006, concluded that there were “situations in which it is consistent both with the Lords’ role in Parliament as a revising chamber, and with Parliament’s role in relation to delegated legislation, for the Lords to threaten to defeat an SI”. These included occasions when the “parent act was a ‘skeleton bill’, and the provisions of the SI are of the sort more normally found in primary legislation”.

In response to the Constitution Committee’s November 2018 report, the Government argued that the use of skeleton bills could be reasonable in some cases. It said that it agreed that “bills which contain unduly vague powers because policy decisions have yet to be taken will usually be unacceptable to Parliament”. But it added:

[…] sometimes the term skeleton bill is used to describe a bill in which the overall policy framework is clearly set out with delegated powers being taken to fill in the details resting underneath that framework or to implement aspects of it. The Government believes that there have been and will continue to be sound reasons for the use of such bills in a limited number of cases.

During the debate on the report, Lord Young of Cookham, then Lords spokesperson for the Cabinet Office, reiterated this position. He said that a “bill setting out policy framework clearly but using delegated powers to fill in details or implement part of it, may be justifiable in some cases”.

In September 2020, the chairs of the SLSC, the Constitution Committee and the DPRRC wrote a joint letter to the Government about skeleton bills and skeleton provision. They said that they were “concerned about the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”. They noted that Brexit and the Covid-19 pandemic had “given rise to a need for exceptional legislation”. But they added that even taking these events into account, the bills brought forward had been “extraordinary in terms of the extent to which they have permitted a shift of power from the legislature to the executive”. In particular, they wrote that the number of skeleton bills introduced had “grown markedly” since the 2017–19 session.

The chairs noted that skeleton legislation meant Parliament was being asked to “pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it”. In addition, they noted that skeleton legislation allows the Government to “truncate policy development, which is detrimental to good government as well as effective parliamentary scrutiny”.

In response to their letter, Leader of the House of Commons Jacob Rees-Mogg acknowledged that skeleton bills “do not necessarily provide a model example of how Parliament would like to see legislation brought forward”. He agreed that “bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development”, and that the Government “must fully justify the appropriateness” of delegated powers to both Houses.

In reply, the chairs of the SLSC and DPRRC called on Mr Rees-Mogg to remind departments of the “fundamental importance of providing a thorough and convincing delegated powers memorandum”. The chair of the Constitution Committee, meanwhile, welcomed Mr Rees-Mogg’s “personal commitment” to take account of the points raised in the September 2020 letter.

Following the exchange, the SLSC urged the Government to reduce its use of skeleton legislation in a report published in December 2020. The committee said:

Reflecting the conclusions of our correspondence with Mr Rees-Mogg, we urge the Government “to bring forward bills that contain clear policy intention instead of broad delegated powers” and to ensure that “departments do not use the exceptional powers given to them by Parliament as an expedient in the context of the pandemic as a cloak for effecting longer term, post-pandemic changes which would more properly be included in primary legislation”. We shall continue to pursue this important matter which goes to the heart of essential and effective parliamentary scrutiny.

Recent developments

In November 2021, both the SLSC and DPRRC published reports on the balance of power between Parliament and the Government:

In the reports, the committees expressed their alarm about the Government’s “increasing tendency” to use skeleton bills that “effectively by-pass Parliament’s role in the legislative process”. They reiterated that, unlike bills, secondary legislation was not subject to “several stages of robust scrutiny but [instead] is only debated once in each House—if at all” and called for immediate changes. The SLSC said that a “critical moment” had been reached and contended that the balance of power between Parliament and the executive “must be reset: not restored to how things were immediately before these exceptional recent events but reset afresh”. Similarly, the DPRRC concluded that it was “now a matter of urgency that Parliament should take stock and consider how the balance of power can be reset”. It added that the “abuse of delegated powers is in effect an abuse of Parliament and an abuse of democracy” and said it hoped its report would “be a prompt to strengthen Parliament in the coming years”.

What have others said about skeleton bills?

The Hansard Society has criticised the Government’s use of skeleton bills, most recently as part of a critique of delegated powers and scrutiny generally. It has listed skeleton bills as one of the “problems” it sees with the delegation of powers in bills that it will review further in 2022.

Baroness Cavendish, writing in the Financial Times (£) in early December 2021, highlighted the SLSC and DPRRC’s comments on delegated powers, including skeleton bills. She expressed concern that Whitehall was “increasingly turning to arcane procedures to rush through policies that may individually sound mundane, but together add up to an assault on democracy by granting sweeping powers to the executive”. Baroness Cavendish concluded her piece by criticising the current administration’s approach to legislation and delegated powers:

It is surprising that a Conservative government is churning out huge volumes of legislation that enlarge the power of the state. It is appalling that it is so cavalier about democratic freedoms. But it is truly astonishing that it doesn’t seem to wonder how others might use the powers it is busily creating.

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Cover image by Stevebidmead on Pixabay.