Summary
Delegated powers are a necessary part of the legislative process. When used appropriately, they allow Parliament to focus on the important policy frameworks and decisions in primary legislation, and to leave the detail of implementation to secondary legislation. They provide the Government with the flexibility to deliver its policy, and adjust its operation as circumstances change, through a less onerous scrutiny process. However, decisions as to what powers to delegate, and the level of parliamentary scrutiny to which they should be subject, have proved increasingly contentious.
The Government has a list of functions for which delegated powers may be appropriate, including: providing for the technical implementation of a policy; filling in detail that may need to be updated frequently or is otherwise subject to change; and accommodating cases where the detailed policy has to work differently in different circumstances. Such purposes constitute reasonable uses of delegated powers. However, it has become increasingly apparent that the determining factor as to whether to include a delegated power in a bill is whether Parliament will accept the delegation, rather than any point of principle. We find this disturbing and it emphasises the importance of robust parliamentary scrutiny of delegated powers to ensure that unjustifiably broad powers are not granted to ministers and that constitutional standards are upheld.
The Delegated Powers and Regulatory Reform Committee (DPRRC) provides an expert assessment of the appropriateness of proposed delegations of power. Its scrutiny has a beneficial effect on legislation presented to Parliament, both in securing government agreement to amend proposed powers of delegation in a bill and, less obviously, in concentrating the minds of ministers and their bill teams during the earlier process of drafting the legislation. We recommend that the Government accepts recommendations of the DPRRC more frequently and ensures that the lessons from their reports are applied to future bills.
As part of our scrutiny of bills, and from the work of the DPRRC, we have identified a number of recurring problems with delegated powers. We have observed an increasing and constitutionally objectionable trend for the Government to seek wide delegated powers, that would permit the determination as well as the implementation of policy. In recent years the Government has sought to create criminal offences and establish public bodies through delegated powers. This is constitutionally unacceptable.
Henry VIII powers—which permit changes to primary legislation to be made through secondary legislation—are a departure from constitutional principle. Primary legislation, subject to lengthy and detailed parliamentary scrutiny, should not be amended by the lighter-touch processes of secondary legislation other than in exceptional circumstances.
Similarly, we find it difficult to envisage any circumstances in which skeleton bills—which contain wide delegated powers in the absence of substantive policy—are acceptable, given the deleterious impact they have on the parliamentary scrutiny that can be brought to bear.
We are also troubled by the use of guidance by the Government as a substitute for legislation. Guidance is not legislation and should not include matters that should properly be in legislation.
Delegated powers should be sought only when their use can be clearly anticipated and defined. Broad or vague powers, or those sought for the convenience of flexibility for the Government, are unacceptable. The Government must provide a full and compelling justification for all delegated powers and it is for Parliament to decide whether that justification is acceptable. Where broad powers are sought, the Government should publish draft secondary legislation to allow Parliament to assess their potential usage.
There is a large number of different scrutiny processes to which secondary legislation may be subject, many with only small differences between them. This complexity is unhelpful for the understanding and scrutiny of statutory instruments. As a minimum, we recommend that future primary legislation should not create new enhanced affirmative scrutiny procedures and should instead use one of the existing variants.
If the Government uses delegated powers to propose secondary legislation which makes technical provision within the boundaries of the policy and has previously been agreed in primary legislation, Parliament is unlikely to wish to block statutory instruments. However, we are concerned that these boundaries are not always respected and that ministers may seek to use statutory instruments 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. This is constitutionally unacceptable.
For secondary legislation processes to work, the Government must take account of the scrutiny of statutory instruments and respond promptly to remedy any deficiencies. Where it does not do so, in exceptional circumstances Parliament may use its existing powers to block such instruments. The Government should recognise that parliamentary defeat on a statutory instrument need not be considered momentous or fatal. It does not prevent the Government subsequently tabling a revised SI having listened to and acted on parliamentarians’ concerns.
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.