Special Report: Response to the Strathclyde Review Contents

Chapter 2: Boundary between primary and delegated legislation

Distinction between primary and delegated legislation

13.Delegated legislation is legislation, usually in the form of statutory instruments,10 which is made by Ministers, and certain public bodies such as regulators, using powers conferred by an Act of Parliament–sometimes called the “parent Act”. It is well known that bills go through a number of stages in both Houses before becoming Acts of Parliament. In contrast, delegated legislation is subject to much simpler procedures:

In most cases, that scrutiny procedure will be either the affirmative or negative procedure:

14.A small number of instruments are subject to a strengthened statutory procedure of which there are several varieties. These include Legislative Reform Orders, laid under the Legislative and Regulatory Reform Act 2006, which may be subject to the super-affirmative procedure which allows for an additional scrutiny stage before the approval motion is taken in the House. We describe these in some detail in our report on strengthened statutory procedures published in 2012.13

15.We set out in Appendix C to this Report a table illustrating the different scrutiny procedures along with the approximate numbers of instruments laid each session.

16.Crucially, as we have said, delegated legislation is made by the Executive and not by either House of Parliament, and it is unamendable.14 Where required to be laid, it is laid by the Government before the two Houses at the same time (unless Commons-only) and dealt with by each House independently. There is no requirement for instruments to be considered first by the House of Commons. Unlike primary legislation, therefore, there is no “dialogue” between the Houses, no “to-ing and fro-ing”—often described as “ping-pong”—in order to seek agreement. If one House declines to approve an affirmative instrument or successfully prays against a negative instrument, the instrument is lost.

Value of delegated legislation

17.Delegated legislation serves an important purpose. Erskine May describes the advantages of delegated legislation as follows: “… it has been recognised that the greater the number of details of an essentially subsidiary or procedural character which can be withdrawn from the floors of both Houses, the more time will be available for the discussion of major matters of public concern”. Delegated legislation allows the Executive to “work out the application of the law in greater detail” within the principles laid down by primary legislation.15

18.When first established, this Committee made a similar point. The DPRRC, originally called the Delegated Powers Scrutiny Committee, was appointed in November 1992. Following a short inquiry, it published its first report which began:

“Parliament recognises the need to delegate some legislative powers. The ever increasing mass of detail in statutory instruments could not be scrutinised by Parliament if it formed part of primary legislation. The need to change detailed provisions from time to time would place impossible burdens on Parliament if the changes always required the introduction of new legislation. The argument is not whether delegation is ever justified but what criteria can be used in determining whether particular proposals for delegation are acceptable.”16

19.This remains our view: the issue is not the delegation of powers in principle but the scope and nature of the delegations sought by governments. The fundamental point as far as consideration of the Strathclyde Review is concerned is that the use and misuse of provision for the delegation of powers underpins any examination of the role of the House of Lords, and of Parliament more generally, in relation to delegated legislation.

20.If delegated powers were highly prescribed and dealt only with the mundane and technical aspects of legislation, then one could speculate that the Strathclyde Review would never have taken place. It was because the Tax Credits Regulations contained such significant policy changes that they attracted the attention they did. Lord Norton of Louth made this point in written evidence to the SLSC. He argued that the Strathclyde Review was based on the “false premise” that “the mischief to be addressed is the behaviour of the House of Lords rather than the scope of the statutory instrument in question”:

“The mischief is the extent to which government uses unamendable secondary legislation to achieve policy goals that should more appropriately be embodied in primary legislation. The focus should therefore be on ensuring that secondary legislation is not employed to avoid the rigours of scrutiny through primary legislation.”17

Dr Fox of the Hansard Society made a similar point:

“We go back to our original point about what the problem is: it is the balance between primary and secondary legislation. We should be asking why it is and whether it is appropriate that the power [which] at the beginning allowed for uprating, which I think most people would accept was an appropriate use of delegated legislation … that same power also enabled the Government to reduce or abolish that credit.”18

Lord Hunt of Kings Heath described the reference in the Strathclyde Review to taking steps to ensure sufficient detail is contained in bills as “the most important part of that report”.19

Is too much being “left for implementation by statutory instrument”?

21.Setting the appropriate boundary between primary and delegated legislation is not a simple, objective exercise and it is for this reason that the Committee, at its inception, said that it would not offer a list of criteria but would consider each delegation in a bill on its merits.20 In our Special Report on delegated powers memoranda, we suggested a small number of principles, such as the presumption of the affirmative procedure for Henry VIII powers–that is, those powers which enable a Minister, by delegated legislation, to amend, repeal or otherwise alter the effect of an Act of Parliament. Identifying these principles was based on over 20 years’ experience but, on the whole, we continue to adopt a case-by-case approach.

22.Consequently, any assessment of the extent to which primary legislation may or may not be leaving too much for implementation by delegated legislation is not directly quantifiable. Our reports on bills, however, indicate that time and again successive governments have attempted to relegate too many important policies to delegated legislation, leaving too little on the face of the bill. Of particular concern to the Committee is the use of skeleton bills or skeleton provisions in bills, and Henry VIII powers. The picture that emerges is that, as Lord Strathclyde appears to imply, there is a problem which needs correction.

Interventions by the Delegated Powers Committee

23.The DPRRC reports on bills normally after second reading and always before committee stage and, where necessary, on the Government amendments produced during the various stages of a bill as it makes its passage through the House. We meet almost every week and very occasionally more often. In 2013–14, we published 27 reports on 20 Government bills, and in 2014–15, we published 19 reports on 16 Government bills. During the current session to date (up to 15 March), we have considered 40 public bills. These include 18 Government programme bills and 22 private members’ bills, of which four were what are called “handout” bills and so, in effect, Government bills. Some bills have no delegations or no delegations to which we would wish to draw the attention of the House. These tend to be private members’ bills.

24.In evidence to the SLSC, the Rt Hon. Earl Howe, Deputy Leader of the House of Lords, said: “Governments, as we know, have traditionally implemented the recommendations contained in DPRRC’s reports.”21 The Strathclyde Review makes a similar comment: “The Committee’s recommendations are usually accepted by the Government”.22 If this were the case, this Committee could be seen as a bulwark against the inclusion of inappropriate delegations in bills as enacted.

25.With this in mind, we decided to undertake an analysis of the outcome of our recommendations during the current session. So far this session (up to 15 March), we have made 102 recommendations about 18 bills.23 13 recommendations have yet to be considered.24 Of the remaining 89 recommendations: whilst 25 have been explicitly rejected and five have received no comment at all,25 the remainder have either been explicitly accepted by the Government or given rise to debate in the House.

26.Our findings, which we realise are based on a very limited sample, indicate, therefore, that the picture is more complex than that described by Earl Howe and Lord Strathclyde. The acceptance rate does not appear to be as high as they, and others, suggest. It is however certainly the case that the Committee’s reports are mentioned frequently during debates in the House and we see this as one indicator of success, since our role is to offer advice to the House about the bills before it.

27.Furthermore, the impact of the Committee’s recommendations will of course vary from bill to bill. Some instances are particularly notable, such as the Childcare Bill [HL] where, at the beginning of committee stage in July 2015, the Minister, Lord Nash, announced that report stage would not be taken until October 2015. He said:

“It may be helpful if I report to the House that there have been productive discussions in the usual channels about the next stage of this Bill and that as a result of these discussions we will be looking to arrange the report stage for October when the House returns from the conference recess. Noble Lords will be aware that last Friday the Delegated Powers and Regulatory Reform Committee published its report on this Bill and other Bills before the House. We are of course mindful of that report and its recommendations in respect of this Bill and intend to prepare and publish our response in good time before Report, including tabling government amendments where appropriate.26

28.The figure emerging from our analysis which has caused us greatest concern is the one relating to those recommendations which have received no reaction at all. In this context, we draw the attention of departments to the Cabinet Office’s Manual entitled Guide to Making Legislation (“the Cabinet Office Manual”) which makes clear that departments have to respond to DPRRC reports and, from this we take it to mean, that they must respond to each and every recommendation we make in our reports.27

29.The latest edition of the Manual, published in July 2015, states that “it is usual for the Government to accept most, if not all, of the DPRRC’s recommendations” but that “the Minister should write to the chair of the DPRRC before committee stage to inform them of the Government’s response to the recommendations”. Given this tight timetable, the Manual suggests that “departments therefore need to make sure that they consider their response to the DPRRC promptly, to allow time to seek clearance if necessary” (emphasis added).28

30.In order for the House to benefit fully from the advice of this Committee, it is essential that the House is informed in good time of the Government’s response to each and every recommendation it makes in its reports on bills. The Government are urged to take steps to ensure that the requirements of their own guidance are followed and, where, exceptionally, a Minister is unable to provide a timely and substantive response, then the Minister should write to this Committee to explain why.

Skeleton bills and skeleton provision

31.A skeleton, or framework, bill is one which is principally made up of delegations of powers, leaving most of the legislative content to be set out in delegated legislation made under the bill once it has become an Act of Parliament. Sometimes whole bills are “skeleton”; sometimes the description applies to only a part of a bill. The problem of skeleton bills and skeleton provision is not new. In its first report in 1992–93 the Committee referred to “the more extreme use of delegated powers that [are] contained in so-called ‘skeleton bills’”.29

32.During the debate on the Strathclyde Review, several members referred to the problem of governments’ over-reliance on delegated legislation and skeleton bills in particular:

Examples of the use of skeleton bills and skeleton provision

33.The following is a list of examples, along with a short extract from the Committee’s report on the bill, covering a number of governments since the Committee was established:

34.Related to the issue of skeleton provisions is the bad practice of not defining in the bill certain expressions used in it which are critical to the understanding of some of its key provisions. The following are recent examples of that practice:

35.There have been some particularly poor examples of skeleton bills during the current session. They include:

36.As a result of concern caused by these most recent examples, Baroness Fookes, Chairman of this Committee, and the Rt Hon. Lord Lang of Monkton, Chairman of the Constitution Committee, wrote to the Leader of the House of Commons, Rt Hon. Chris Grayling MP, on 22 July 2015. Referring to the Cities and Local Government Devolution Bill [HL] and the Childcare Bill [HL], the letter concluded:

“We urge you … to remind Ministers and civil servants across Government that delegations of legislative power must be appropriate, the degree of flexibility afforded to Ministers proportionate to the objectives set out in primary legislation, and that ‘skeleton’ bills be introduced only when absolutely necessary and with a full justification for the decision to adopt that structure of powers.”49

37.In the Committee’s Guidance to Departments, we state the following principle:

“If a bill is, in effect, a skeleton bill (so that the real operation of the Act would be entirely by the regulations, or orders made under it), or if part of a bill is, in effect, a skeleton part of a bill, the Committee will expect a full justification for the decision to adopt that structure of powers”.50

38.The Committee’s Guidance is a practical document aimed at bill teams preparing to take a bill through Parliament. Whilst we adhere to the view expressed in the Guidance in the event that a skeleton bill is placed before us, it does not address our wider concern that skeleton bills or part bills should not be put before us in the first place, save in the most exceptional circumstances.

Prevalence of Henry VIII powers

39.Given the difference between parliamentary scrutiny procedures for primary and for delegated legislation, Henry VIII powers are bound to be potentially controversial. During the debate on the Strathclyde Review, a number of members of the House deprecated their use. Lord Judge, in particular, spoke powerfully about his “nightmare”: “we have too many Henry VIII clauses, and we call them Henry VIII clauses because they are draconian and potentially tyrannical”.51 Examples of Henry VIII powers on which we have commented across the years are:

What steps can be taken to re-set the boundary between primary and delegated legislation?

40.During the debate on the Strathclyde Review, Lord Beith said:

“This is much more than a minor procedural issue. Governments of all kinds use delegated legislation to enact new policies and principles to change the impact of the criminal law, and amend the very legislation on which the instrument is based, as a number of noble Lords have mentioned. Committees of your Lordships’ House have produced egregious examples of this, such as the Childcare Bill 2015–16, which was described by the delegated legislation committee as little more than a mission statement. Yet even the mildest of the alternative proposals in the report of the noble Lord, Lord Strathclyde, rests on the utterly implausible hope that Governments will “take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”. That will never happen. It would be like relying on an alcoholic promising to drink only moderately in future. It is just not realistic.”58

41.We acknowledge that there are grounds for pessimism given the Committee’s recent experience of Government bills, and also the incentive for governments of all persuasions to seek as much flexibility and future-proofing of legislation as possible. However, we do not accept Lord Beith’s view that change will never happen and that steps cannot be taken to correct the current misalignment.

42.The issue can be tackled from two sides: first, by Parliament, by which we mean not only the work of this Committee but also of the two Houses more generally; and, second, by Government departments. In this regard, we note with interest the evidence to the SLSC of the Rt Hon. Lord Wallace of Tankerness QC, Leader of the Liberal Democrat Party in the House of Lords. He made a similar point when he suggested that change could be brought about, first, by the Cabinet Secretary exercising leadership to resolve the matter across the Civil Service; and, second, by exertion of “political pressure” by which, he explained, he meant the effect of Ministers being exposed to criticism at the dispatch box.59

Delegated Powers and Regulatory Reform Committee

43.In our Special Report on the quality of delegated powers memoranda, we described the value of memoranda as two-fold: first, they assist the Committee and the House in understanding a delegation; and, second, they have a salutary effect on how departments select powers and scrutiny procedures. Richard Heaton CB, then Permanent Secretary to the Cabinet Office and First Parliamentary Counsel, had told us that the establishment of the Committee had created a culture in departments where “people think quite carefully … about delegated powers” which contrasted, he said, with the period before the Committee existed when “more likely than not when you were thinking about how to wrap up the last clauses of the bill you would ask counsel to put something in that broadly speaking allowed you to do what you liked because it was convenient”.60

44.Our inquiry into delegated powers memoranda was prompted by the number of memoranda on which the Committee had made adverse comments. In response to that report, Jonathan Jones, Treasury Solicitor, and Richard Heaton, Permanent Secretary and First Parliamentary Counsel at the Cabinet Office, sent a letter to the Committee which they stated was the Government’s response. In the letter they set out a number of steps that they intended to take to ensure a more consistently high standard of memoranda (see Appendix B).

45.During our inquiry, it was put to us that, where a memorandum fell short of the standard required, the Minister could be requested to provide further explanation either in writing or at an oral evidence session.61 Lord Lisvane repeated this suggestion in evidence to the SLSC in the context of calling in Ministers to justify significant Henry VIII powers.62 In 2014, we noted that the proposal to call in Ministers had practical difficulties to do with timing: namely that the Committee endeavours to report between second reading and committee stage and that, given the recommended minimum interval of 14 days between those two stages, there would be no time to hold an evidence session. We noted that the Committee has no “scrutiny reserve”, by which we mean that there is no requirement under Standing Orders of the House for the Government to delay scheduling committee stage until the Committee has reported. Therefore, the Government would not have to wait for the Committee to report before proceeding with the bill.63 We concluded against proposing a “scrutiny reserve” on the grounds that we would wait to see if our recommendations in the Report had taken effect. We also said however that “should the expected improvements not result … , then it is, of course, open to the Committee to re-visit these, or any other, proposals for procedural change.”64 During this session (up to 15 March), we have so far commented adversely on 17 delegated powers memoranda.

46.We now take the view, for reasons to do with both the extent of delegations in bills as well as the quality of delegated powers memoranda, that there are grounds for re-visiting these proposals for procedural change. In suggesting the introduction of the “scrutiny reserve”, we would not expect the progress of bills to be routinely delayed while the Committee completed its work. We would continue to observe our practice of respecting the agreed scheduling of business and ensure that we reported in accordance with it. The very existence of the “scrutiny reserve” would, however, act as a salutary reminder to Government departments of the importance of proper preparation of bills and memoranda.

47.The core task of the DPRRC is to examine, and report on, the delegations in bills, a task described by the Wakeham Commission as one of “policing” the boundary between primary and delegated legislation. The DPRRC has always discharged this function rigorously both in terms of the quality of its advice to the House on individual bills and also in monitoring, and commenting on, the standards of bills and their associated delegated powers memoranda more generally. The Strathclyde Review has provided a stark reminder of the importance of our work.

48.In order more effectively to “police” the boundary between primary and secondary legislation, procedural change will be needed. In cases where a bill includes exceptionally wide delegations for which there has been no satisfactory justification, we may decide to invite a Minister to appear before us to provide a justification in person. This needs to be coupled with the introduction of a “scrutiny reserve” so that the committee stage could not proceed until the Committee had taken evidence from the Minister and had reported to the House.

49.We note, in passing, that Earl Howe, in evidence to the SLSC, appeared to suggest that the Joint Committee on Statutory Instruments performed a similar “policing” function in respect of delegated legislation. When asked about the suitability of the policy contained in the Tax Credits Regulations for inclusion in a statutory instrument, he argued that the JCSI “could have flagged up” the Regulations as making “inappropriate use of a delegated power”.65 Whilst the JCSI has power to draw the attention of the House to an instrument which “appears to make some unusual or unexpected use of the powers conferred” by a parent Act,66 that is, as far as we are aware, a form of scrutiny which is of a technical character and should not be construed more broadly as amounting to an assessment of “appropriateness” in the sense used in this Committee’s terms of reference.

Government departments

Bill preparation

50.Government departments are responsible for carrying out the policies of Ministers, including those that require the preparation of a bill. In discharging this responsibility, they have to decide which policies should be included on the face of the bill and which can be left to delegated legislation.

51.The starting point is the policy development leading up to a bill. Ideally, at that early stage, departments will begin to consider the appropriate split between primary and delegated legislation. We set out in our Special Report a number of suggestions about how to ensure a consistently high standard of memoranda. One key proposal was that the Government should “encourage departments, as best practice, to prepare a draft memorandum in parallel with the policy development and early drafting stages of a bill rather than leaving it until later in the process”67 so as to enforce the “internal-discipline effect” of justifying a delegation of power. Not surprisingly, according to the Hansard Society Report, the act of preparing the memorandum can influence the final selection of scrutiny procedures and presumably also the selection of the delegations themselves. That Report relates: “One departmental lawyer admitted that on occasion they had changed their minds about the allocation of procedures to powers in the course of drafting the document”.68

52.The “internal-discipline effect” of preparing a delegated powers memorandum is likely to have an important impact on policy-makers and departmental lawyers, including the selection of delegations and associated procedures.

53.We therefore invite the Government to explain what progress has been made in implementing the recommendation in our Special Report that memoranda should be drafted in parallel with policy development and early drafting stages of legislation.

54.Government bills are drafted by Parliamentary Counsel on instruction by Government departments. Government departments are assisted by the Cabinet Office Manual. It includes the following advice about when it is appropriate for a bill to delegate legislative powers:

“These are some of the factors to consider when deciding whether the Bill should confer a power to make provision by secondary legislation:

On the other hand:

55.We regard this as good advice which usefully supplements both the general guidance provided by this Committee to departments and the developing “case law” of guidance embodied in the Committee’s reports on bills.

56.So the issue is not, in our view, the availability of guidance, and we do not subscribe to the view suggested by, for example, Dr Fox70 and Professor Russell,71 that the criteria need to be more explicitly defined. In our view, the key issue is the capacity and willingness of Ministers and officials to take the advice available, including their own. The recommendations we make later in this Report seek to address this point.

Developing a collective understanding amongst officials

57.In our Special Report, we highlighted the importance of disseminating the Committee’s comments to ensure that bill teams are aware of the Committee’s views. The Government’s response that action would be taken to improve dissemination included, for example, the following commitments:

58.It is with some disappointment therefore that we heard evidence of a continuing lack of understanding within departments about the approach of the DPRRC. Dr Fox, in describing the absence of “collective knowledge”, said:

“ … in many instances civil servants serving on a bill team may do it only once. They come in cold to a bill team, having never been involved before. They have to learn on the job. They get guidance, but not always the same guidance. They always get the Cabinet Office guidance, but they do not, for example, necessarily get the reports from the Committees that would improve their knowledge about what expectations were about precedent and so on.”73

Professor Russell made a similar point.74

59.In response to our inquiry into the quality of delegated powers memoranda, assurances were given to us by the Government about renewed efforts to increase the dissemination of the Committee’s reports within departmental legal teams. Our purpose had been to secure improvement in the quality of memoranda although an important consequential effect would have been a better understanding of the substantive issue of appropriate selection and definition of delegations and their associated procedures.

60.We invite the Government to indicate what actions they have taken to improve the dissemination of the Committee’s reports, whether they are satisfied with the outcome and what further efforts they intend to make.

Role of the Parliamentary Business and Legislation Committee

61.Before a bill prepared by a Government department can see the light of day, it has to get over the hurdle of examination by the Parliamentary Business and Legislation Committee (PBL Committee). The PBL Committee is a Cabinet Committee which “manages the Government’s current legislative programme on behalf of Cabinet and advises Cabinet on strategic management of the forthcoming programme”.75 It is currently chaired by the Leader of the House of Commons. The PBL Committee has to approve, amongst other things, the final text of a bill and will have been provided with a delegated powers memorandum justifying any delegations of powers. Cabinet guidance instructs bill teams to pay “particular attention” to Henry VIII powers.76

62.Although the PBL Committee has an important policy role, Earl Howe, in evidence to the SLSC, described it also as being one of the “checks and balances against inappropriately framed bills” which “formally assesses the appropriateness of a bill’s order-making powers and its substantive provisions prior to introduction”.77 He felt that it did “an effective job” although he appreciated that the SLSC “might come to the conclusion that it could do better”.78

63.Mr Grayling, when asked about the effectiveness of the PBL Committee, indicated that he realised that improvements needed to be made in terms of ensuring that bills contained an appropriate amount of detail:

“It is for us on the PBL Committee to be more rigorous about this. … We are trying to tighten up the legislative process in a number of ways to make sure that what comes before Parliament is as ready as possible, that we have thought through issues that may arise in the Houses and that we have looked at legislation much earlier than has previously been the case.”79

64.Lord Wallace of Tankerness, who sat on the PBL Committee during the coalition Government, provided a description of PBL Committee meetings which confirmed Mr Grayling’s view that change is needed:

“There were times … when you were not exactly comfortable that everything had been thought through, but there was an imperative to get the bill published by a certain date, and you would think, “it’s ok. We’ll fill in some of the details a bit later”. Probably more often than not, it worked, but it leads to situations where it does not work, and both Houses of Parliament are left looking at pieces of legislation that are in some sense incomplete; either they should be in a primary bill or … the draft regulations should be made available.”80

65.We welcome the indication by the Leader of the House of Commons of his commitment, as Chairman of the PBL Committee, to “tighten up the legislative process”. We invite the Government to explain:

Provision of draft instruments during the passage of bills

66.Complaints are often raised in the House about the unavailability of draft regulations during the passage of a bill through Parliament. For example:

67.The Strathclyde Review acknowledged this issue with the comment that: “publishing draft regulations during the parliamentary stages of Bills might also speed the passage of primary legislation”.83

68.We recognise that it is not necessary for Parliament to see all draft delegated legislation associated with a bill while that bill is going through the two Houses. However, where draft delegated legislation is of considerable substance without which Parliament cannot give proper consideration to the bill itself, we urge the PBL Committee to require departments to provide such drafts to the Houses early in a bill’s passage through Parliament.

69.We believe that the availability of such drafts should be regarded as part of the test of readiness to which Mr Grayling referred when he said that the PBL Committee should ensure that legislation is “as ready as possible” to go before Parliament.

10 The exercise of delegated legislative power usually takes the form of statutory instruments. There are other forms, however, and these include, for example, codes and “guidance”.

11 For example, commencement orders.

12 Save for those instruments which are specified in the parent Act as requiring Commons approval only.

13 3rd Report, Special Report: Strengthened Statutory Procedures for the Scrutiny of Delegated Powers, Session 2012–13 (HL Paper 19).

14 Except in very rare instances: for example, section 1(2) of the Census Act 1920 and section 27(3) of the Civil Contingencies Act 2004.

15 Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament (24th edition), p 667.

16 1st Report, Session 1992–93 (HL Paper 57), para 1.

17 Written evidence to the SLSC.

18 Evidence to the SLSC, Q 12.

19 HL Deb, 13 January 2016, cols 370–71.

20 Scrutiny of Delegated Powers Committee, 1st Report, Session 1992–93 (HL Paper 57), para 23.

21 Evidence to the SLSC, Q 81.

22 Strathclyde Review, p 9.

23 The 18 bills include Government programme bills and “handout” private members’ bills, but exclude any that contain no delegated powers, or any that do but are not drawn to the attention of the House.

24 In the sense either that the Government have yet to respond to them, or that the House has yet to consider in committee the bill to which the recommendation relates.

25 Also the Government have yet to respond to 21 recommendations on the Housing and Planning Bill, made in the 20th and 21st Reports of this Committee (HL Papers 90 and 98).

26 HL Deb, 1 July 2015, col 2074.

28 Cabinet Office, Guide to Making Legislation (July 2015), para 16.16.

29 1st Report, Session 1992–93 (HL Paper 57), para 15.

30 HL Deb, 13 January 2016, col 286.

31 Ibid., cols 305-06.

32 Ibid., col 307.

33 Ibid., cols 349-50.

34 Ibid., col 362.

35 Ibid., col 364.

36 5th Report, Session 1994–95 (HL Paper 50), para 9.

37 7th Report, Session 1994–95 (HL Paper 63), para 11.

38 3rd Report, Session 1998–99 (HL Paper 12), paras 5–6.

39 21st Report, Session 2003–04 (HL Paper 121), para 11.

40 7th Report, Session 2005–06 (HL Paper 73), para 3.

41 12th Report, Session 2007–08 (HL Paper 148), para 22.

42 5th Report, Session 2007–08 (HL Paper 58), para 3.

43 6th Report, Session 2007–08 (HL Paper 76), para 10.

44 20th Report, Session 2013–14 (HL Paper 126), paras 13, 14 and 16.

45 Ibid.

46 10th Report, Session 2015–16 (HL Paper 45), para 4.

47 1st Report, Session 2015–16 (HL Paper 8), para 2.

48 2nd Report, Session 2015–16 (HL Paper 12), para 8.

50 7th Report, Special Report: Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), p 47, para 36.

51 HL Deb, 13 January 2016, col 321.

52 2nd Report, Session 1993–94 (HL Paper 17), para 8.

53 9th Report, Session 2005–06 (HL Paper 86), paras 34–44.

54 1st Report, Session 2008–09 (HL Paper 12), para 6.

55 13th Report, Session 2013–14 (HL Paper 56), para 21.

57 11th Report, Session 2014–15 (HL Paper 50), paras 20–22.

58 HL Deb, 13 January 2016, cols 356-57.

59 Evidence to the SLSC, Q 73.

60 Evidence to the Committee’s inquiry into the quality of delegated powers memoranda. 7th Report, Special Report: Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), para 5.

61 Ibid., p 47, paras 43–45.

62 Evidence to the SLSC, Q 19.

63 The Joint Committee on Statutory Instruments has a “scrutiny reserve” in that no approval motion for an affirmative instrument can be moved in the House of Lords until that committee has reported on the instrument (House of Lords Public Business Standing Orders 72(1) (a)). The European Union Committee has a “scrutiny reserve” in that “… no Minister of the Crown shall give agreement in the Council or the European Council in relation to any document subject to the scrutiny of the European Union Committee in accordance with it terms of reference, while the document remain subject to scrutiny.” (See the Companion to the Standing Orders and Guide to Proceedings of the House of Lords (2015), p 270).

64 7th Report, Special Report: Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), p 47, para 45.

65 Evidence to the SLSC, Q 79.

66 The Standing Orders of the House of Lords relating to Public Business SO74(2)(f).

67 7th Report, Special Report: Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), p 47, para 41.

68 Hansard Society Report, p 61.

69 Cabinet Office, Guide to Making Legislation (July 2015), p 121, para 16.1.

70 Evidence to the SLSC, Q 15.

71 Evidence to the SLSC, Q 38.

72 Appendix B.

73 Evidence to the SLSC, Q 15.

74 Evidence to the SLSC, Q 37.

75 Cabinet Office, Guide to Making Legislation (July 2015), para 2.1.

76 Cabinet Office, Guide to Making Legislation (July 2015), para 3.18.

77 Evidence to the SLSC, Q 82.

78 Evidence to the SLSC, Q 84.

79 Evidence to the SLSC, Q 7.

80 Evidence to the SLSC, Q 73.

81 HL Deb, 16 June 2015, col 1085.

82 HL Deb, 3 March 2016, col 958.

83 Strathclyde Review, p 22.

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