The Legislative Process: The Delegation of Powers
Chapter 1: Introduction
1.In 2004, this Committee published a report on Parliament and the Legislative Process.1 In that report we made significant recommendations about the way Parliament and the Government handle legislation. Some of those recommendations were followed by now well-established changes to the legislative process, such as the public evidence stage of Public Bill Committees in the Commons, and an expectation that every Act will have a post-legislative review memorandum produced by its relevant government department within 3–6 years of its commencement. Others, such as a presumption that all bills should be published in draft ahead of their introduction to Parliament, have not been followed.
2.In 2016, we launched a further inquiry into the legislative process in which we have taken a broader view of the law-making process. Whilst the term ‘legislative process’ is most commonly used to refer to the sequence of steps by which laws are formally passed by Parliament, we have considered as a whole the different stages and procedures by which laws are developed, drafted, scrutinised, agreed to and disseminated. Our inquiry is in four parts:
- Preparing legislation for Parliament;
- The passage of legislation through Parliament;
- The delegation of powers; and
- After Royal Assent.
3.In October 2017 we published our report on Preparing Legislation for Parliament. We made a number of recommendations, including that: legislation needed to be made more accessible and easier to understand; the Government should routinely publish the evidence base for policy proposals; draft bills should be published and subject to pre-legislative scrutiny more frequently; and consolidation was urgently needed in several areas of the law.2
4.In this report we consider the delegation of powers. It is commonplace for bills to grant powers to government ministers (and sometimes others) to make secondary legislation. The broad justification is that while primary legislation (a bill) sets out the proposed scheme of changes in the law, the precise details, including some aspects of implementation, can be dealt with later through the less onerous processes of secondary, or delegated, legislation. In this part of our inquiry, we examine what powers are delegated to ministers and why, the issues that arise with delegated powers and the scrutiny of delegated legislation.
5.During the evidence for this part of the inquiry, the Government announced its intention to introduce a significant bill to deliver Brexit that was likely to include substantial delegated powers. We focused on the pressing questions that raised and used some of the evidence we received in our report on The ‘Great Repeal Bill’ and delegated powers, published in March 2017.3 The ‘Great Repeal Bill’ became the European Union (Withdrawal) Bill (now Act), which was the subject of two of our subsequent reports.4 In this report we return to the remaining issues with delegated powers that were identified during our inquiry and which are not particular to Brexit.
6.As part of our remit, we scrutinise public bills before the House of Lords. We have reported repeatedly on the Government’s proposals for problematic delegated powers as part of this work, and in this report we develop and expand on these concerns.
7.As part of our inquiry into the legislative process, we have so far heard from 39 witnesses and received 62 pieces of written evidence. We are grateful to everyone who submitted written material or gave evidence to us in person.
1 Constitution Committee, Parliament and the Legislative Process (14th Report, Session 2003–04, HL Paper 173)
2 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27)
3 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123)
4 Constitution Committee, European Union (Withdrawal) Bill: interim report (3rd Report, Session 2017–19, HL Paper 19) and European Union (Withdrawal) Bill (9th Report, Session 2017–19, HL Paper 69)