The Legislative Process: The Delegation of Powers Contents

Chapter 2: Delegating power

The purpose of delegation

8.Bills may grant powers to ministers or other bodies to make delegated legislation. There are various circumstances in which it may be necessary or valuable to do so. 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recognised that the greater the number of details of an essentially subsidiary or procedural character which can be withdrawn from the floors of both Houses, the more time will be available for the discussion of major matters of public concern”.5 Delegated legislation allows the executive to “work out the application of the law in greater detail” within the principles laid down by primary legislation.6

9.In written evidence, the Rt Hon David Lidington MP, then Leader of the House of Commons, set out the various circumstances in which the Government might think it appropriate to use delegated legislation:

10.The Government may also use delegated powers as a tactic when conceding points during the passage of a bill. Rather than accepting an amendment to insert new policy proposals into a bill, the Government may promise to introduce similar provisions through secondary legislation.

11.The Bingham Centre for the Rule of Law noted that delegated powers may generally be exercised more than once, enabling the regulating authority to revise its regulations as circumstances change: “[t]his flexibility avoids the need for Parliament to revisit matters relating to the practical implementation of policies”. It warned, however, that “the power to regulate should not be used to make further policy choices beyond those made by the statute.”8

12.Our witnesses largely agreed on the need for delegated powers and the importance of delineating what should be in primary, rather than secondary, legislation. Baroness Fookes, then Chairman of the Delegated Powers and Regulatory Reform Committee, offered what she described as the “classic definition—that all policy objectives should be on the face of the bill, with details only left to delegated legislation.”9 The Rt Hon Baroness Smith of Basildon, Shadow Leader of the House of Lords, said that delegated legislation “makes sense for … minor, technical and mundane matters”, such as the uprating of fees and other figures, but that “ideally, we would say that no policy matters would be dealt with by [statutory instrument].”10 However, the Bar Council said that: “A dividing line simply between matters of policy and matters of implementation is a difficult one to draw in a general way, and a similar point will often apply in other areas (e.g., whether laws have a significant effect on fundamental rights and freedoms).”11

Delegating appropriately and consistently

13.We asked the Government about the principles governing when delegations of power were included in bills. Mr Lidington told us that there was not a written set of principles. He said:

“The principle that I and my PBL [Parliamentary Business and Legislation Cabinet Committee] colleagues impress upon ministers is that they should not seek, in a new piece of legislation, to have additional regulation-making powers unless those are essential and can be fully justified to Parliament.”12

The current Leader of the House of Commons, Rt Hon Andrea Leadsom MP, told us that the PBL Committee had “a high threshold for accepting delegated powers.”13 Elizabeth Gardiner, First Parliamentary Counsel, said that it was “very much a case of testing with the departments … ‘How are you going to justify taking this power to Parliament? How, as a Minister, are you going to explain that you need to do this in delegated legislation?’”14

14.Sir Stephen Laws, a former First Parliamentary Counsel, made a similar point:

“The overriding guiding principle is what Parliament wants. It is a matter of policy how much you put in delegated legislation and how much you put in the Act. If you think Parliament is going to be content for the detail to be dealt with in subordinate legislation, you are happy to do it. If you think Parliament is going to insist on its being in the Bill, you try to make sure it is in the Bill.”15

15.We accept the broad criteria outlined by David Lidington justifying the use of delegated powers (see para 9). If these criteria were rigorously applied, we would have fewer concerns with their use. We do not accept that there is a “high threshold” for the inclusion of delegated powers in bills and it is unacceptable that the delegation of power is seen by at least some in the Government as a matter of what powers they can get past Parliament. It is a responsibility for all, including Parliamentary Counsel, to uphold constitutional standards in relation to delegated powers.

16.It is a constitutional obligation of Parliament to decide whether a proposed delegation of power is acceptable. Given the trend in the number and nature of delegated powers sought by the Government, the importance of Parliament’s scrutiny of delegations is all the more important.

17.Lord Lisvane, a former Clerk of the House of Commons, told us that delegated powers were increasingly being used to make policy. He said “the threshold between secondary and primary legislation has moved upwards, and delegated legislation is used for matters of policy and principle, which 20 or 30 years ago would not have been thought appropriate.”16 He cited as examples the Childcare Act 2016 and the Housing and Planning Act 2016: in both cases policy could be defined by delegated powers.

18.The Government’s approach to delegation was described as “arbitrary”17 and “inconsistent”18 by some of our witnesses. The Delegated Powers and Regulatory Reform Committee has said 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.”19

19.The Bar Council told us:

“laws which describe procedures and forms are often suitable for delegated legislation … but beyond that [our] perception is that too often the reason for seeking delegated powers is not concerned with their justification on any of those grounds, but more with trying to give the executive flexibility in situations in which legislation is being brought forward without sufficient clarity (or even internal agreement) about what the final policy aims and methodology will be.”20

20.Baroness Fookes said that “Governments go into Bills in too much of a rush, without adequate preparation. This is for two reasons, Governments like to have as much play as they can through the use of delegated legislation, and very often they have not worked out what they want in the regulations in the first place.”21 Dr Ruth Fox, Director of the Hansard Society, made a similar point when considering the role of Parliamentary Counsel in drafting legislation that provides delegated powers:

“If a Government are at mid-consultation on an aspect of policy, it is very difficult for the draftsmen to draft accordingly. As a consequence, in terms of delegated legislation that is where you sometimes get the inclusion of powers in quite broad scope, because the Government have not quite decided what they want to do. It is not policy-ready; it has not properly completed its consultation processes, and draftsmen have to take account of that in how they approach the work.”22

21.Delegations that provide significant flexibility to the Government raise the risk of policy not just being implemented but amended by secondary legislation. The Secondary Legislation Scrutiny Committee (SLSC), which scrutinises secondary legislation in the House of Lords, said that while the majority of instruments they scrutinised conformed to the expectation of “making mundane or technical changes”, some “make major and controversial changes to policy.” They referred to the example of the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, which were described by the Government as “a major plank” of its fiscal and economic strategy in the context of reducing the public sector deficit.23 The SLSC said:

“Other examples of instruments that have attracted a great deal of media attention, and even led to protests outside the House, include the increase in student fees to £9,000, allowing Mitochondrial IVF in humans, various instruments to permit fracking and a proposed amendment to the number of dogs permitted in hunting. When, in October 2015, the proposal to alter the number of dogs permitted for hunting was laid, many expressed the view that that change would undermine the whole purpose of the Hunting Act 2004.”24

22.A further example is the Education (Student Support) (Amendment) Regulations 2015,25 which replaced maintenance grants for poorer students with loans. The SLSC noted that it “gave rise to issues of public policy likely to be of interest to the House”.26 Lord Howarth of Newport described the measures as “reckless constitutionally … introducing major change affecting a large number of people, with major expenditure implications, by way of a statutory instrument.”27 In the House of Commons, Wes Streeting MP said it was “not a usual statutory instrument that involves some tinkering with thresholds or levels, or amends an existing policy framework in the way that statutory instruments normally do. This is a major change in Government policy.”28

23.Garden Court Chambers cited four statutory instruments as examples of delegated powers being used to legislate in an area of acute controversy:

“In a number of instances the powers were used in a manner not specifically envisioned at the time the parent legislation came into force. In others, the powers were used in a way which was unlawful. In our view these examples suggest that delegated powers are being used on a relatively frequent basis by the Government to legislate on matters which should properly be reserved to Parliament by means of primary legislation.”29

24.In our earlier report, Preparing Legislation for Parliament, we concluded that both Houses should improve the accessibility and clarity of legislation passing through Parliament.30 This objective would be assisted if legislation were brought to Parliament only when the policy aims were clear and there had been sufficient preparation.

25.Delegating power to make provision for minor and technical matters is a necessary part of the legislative process. It is essential that primary legislation is used to legislate for policy and other major objectives. Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details. There has been an upward trend in the seeking of delegated powers in recent years and this should cease.

26.It is constitutionally objectionable for the Government to seek delegated powers simply because substantive policy decisions have not yet been taken. It is our judgement that there has been a significant and unwelcome increase in this phenomenon.31

Scrutinising delegations of power

27.The Delegated Powers and Regulatory Reform Committee (DPRRC) examines delegations in all public bills. The Government provides a memorandum for each bill, identifying each of the delegations, its purpose and the justification for leaving the matter to delegated legislation, and explaining why the proposed level of parliamentary control is thought appropriate. The DPRRC’s recommendations are made in reports to the House of Lords before the start of the committee stage of the bill in the Lords. The DPRRC may issue further reports during the passage of a bill if there are amendments which add or significantly amend a delegated power.32

28.The Cabinet Office’s Guide to Making Legislation specifies the need for departments formally to submit a delegated powers memorandum to the DPRRC.33 It states, “DPRRC’s recommendations must be considered seriously to see whether it is possible to accept them … There is, therefore, benefit in departments anticipating the views of the DPRRC when drafting the bill to avoid the need for amendments. The DPRRC’s advisers are willing to be consulted informally before introduction.”34

29.The Guide concludes, “Careful handling will be required if the Government chooses not to accept the recommendations of the DPRRC”,35 a view echoed by Lord Newby, Leader of the Liberal Democrats in the House of Lords:

“certainly when I was a Minister—if we were up against a DPRRC recommendation that we were going to resist, we tended to feel on pretty shaky grounds in terms of persuading the House. Indeed, one of the commonest government amendments made as a result of pressure in the House [of Lords], on the legislation with which I was involved, was to move from negative to affirmative procedure on SIs, because that is what the DPRRC had recommended.”36

30.The then DPRRC Chairman, Baroness Fookes, told us that the committee estimated that 66% of its recommendations were accepted by the Government.37 She added “but we have no powers over how our recommendations are dealt with. To that extent, we are powerless. We rely of course on the House itself looking at this and taking it up with Ministers.”38

31.Other witnesses commented supportively on the DPRRC’s scrutiny work.39 The Bar Council said: “Without its reports, the Bar Council would fear that the Government would seek considerably larger numbers of, and considerably broader, delegated powers. The most important element of the DPRRC’s scrutiny is in questioning whether power should be delegated at all and seeking a justification for it.”40 The SLSC concluded that it was “particularly regrettable that the Government have on a number of occasions failed to respond positively to the advice of the Delegated Powers and Regulatory Reform Committee” on the appropriateness of delegated powers.41

32.The House of Commons has no equivalent to the DPRRC and witnesses said that MPs were missing out by not having detailed reports on the propriety of delegated powers in bills.42 The Bar Council suggested that the DPRRC might produce its reports earlier for bills which are introduced in the House of Commons, to assist the public bill committee’s consideration.”43 Lord Newby made the same suggestion, but noted that “it may be very difficult logistically”,44 as a large number of bills may be introduced in each House at the same time, especially early in a session. The then Leader of the House of Commons, David Lidington, said that the DPRRC already had “a very powerful impact upon debates and divisions” in the House of Commons.45 The former MP Professor Paul Burstow agreed that “Very often in Commons Bill Committees, one is waiting to see the Lords Committee’s review of delegated legislation because it will be relevant to what the Bill would mean for delegated legislation.”46

33.The Delegated Powers and Regulatory Reform Committee 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. Ministers should follow its recommendations unless there are clear and compelling reasons not to do so. These reasons should be fully explained by the Government in writing before committee stage.

34.On three occasions this session the DPRRC has broken with its usual practice and reported on Brexit-related bills while they were in the Commons.47 The Committee said of its early scrutiny of the European Union (Withdrawal) Bill that:

“[t]his Bill is of exceptional constitutional significance. Central to the Bill is the balance of power between Parliament and Government, including the propriety of giving Ministers such unprecedented powers to override Acts of Parliament subject, in the great majority of cases, to no scrutiny whatsoever on the floor of either House. Accordingly we have written this report in sufficient time for Members of the House of Commons to consider it at committee stage in their House.”48

35.To the extent that the Delegated Powers and Regulatory Reform Committee is able to report on bills at an earlier stage, this is welcome and could aid scrutiny, especially of significant Brexit-related legislation. However, we recognise that the DPRRC is unlikely to wish to report as a matter of routine on bills while they are in the Commons.

36.The Bingham Centre for the Rule of Law suggested that Parliament could establish a set of principles “to underpin its assessment of the validity of clauses that delegate legislative authority”, and could adopt a code for this purpose: “A code of constitutional standards written for the legislative process would be particularly helpful to all concerned in the preparation and scrutiny of Bills with regard to the question of the extent to which a proposed delegation of legislative powers in a Bill might create constitutional problems at a later date.”49

37.Dr Ruth Fox agreed that there should be a set of principles to identify when power should and should not be delegated. However, she said:

“we tried to move in that direction and struggled with the people we were engaging with, both in government and Parliament, to get any kind of consensus on what those principles would be. Therefore, I do not underestimate the difficulty of it. It is easy to argue, on the one hand, about detail and administrative convenience versus policy principle, but, on the other hand, you can see where Bills, which require a huge amount of technical detail, arguably could and perhaps should be delegated, and where for readability purposes it would be best to put them through the delegated process. For political reasons, they may well be things that Members want to debate and discuss and, therefore, perhaps ought to be on the face of the Bill. We have struggled with this question.”50

38.The DPRRC has concluded that “it was not possible to set out a list of criteria which would give precision to the test of appropriateness.”51 Baroness Fookes told us that, while the DPRRC had never made “an absolute ruling as to what is or is not admissible [as a delegated power] … we have developed various criteria along the way.”52 This included issues such as Henry VIII powers and skeleton bills, to which we turn in the next chapter.

39.We agree with the Delegated Powers and Regulatory Reform Committee that it would be hard to design a prescriptive list to cater for the variety of circumstances in which delegation is sought. That said, the Government must adhere to the broad principles which are outlined in the DPRRC’s guidance.53

5 Erskine May, 24th edition (London: LexisNexis, 2011), p 667

6 Ibid.

7 Written evidence from the Cabinet Office (LEG0040)

8 Written evidence from the Bingham Centre for the Rule of Law (LEG0052)

9 Q 124 (Baroness Fookes)

10 143 (Baroness Smith of Basildon)

11 Written evidence from the Bar Council of England and Wales (LEG0042)

12 Q 97 (David Lidington MP)

13 Q 204 (Andrea Leadsom MP)

14 Q 97 (Elizabeth Gardiner)

15 Q 71 (Sir Stephen Laws)

16 Q 168 (Lord Lisvane)

17 Written evidence from the Chartered Institute of Taxation (LEG0044)

18 Written evidence from the Secondary Legislation Scrutiny Committee (LEG0050)

19 Delegated Powers and Regulatory Reform Committee, Special Report: Response to the Strathclyde Review (25th Report, Session 2015–16, HL Paper 119)

20 Written evidence from the Bar Council of England and Wales (LEG0042)

21 125 (Baroness Fookes)

22 Q 4 (Dr Ruth Fox)

23 Written evidence from the Secondary Legislation Scrutiny Committee (LEG0050)

24 Ibid.

25 Education (Student Support) (Amendment) Regulations 2015 (SI 2015/1951)

27 HL Deb 25 January 2016 vol 768 cols 1109–1110

28 Education (Student Support) (Amendment) Regulations 2015, Third Delegated Legislation Committee, 14 January 2016, col 12

29 Written evidence from Garden Court Chambers (LEG0049)

30 Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27), para 150

31 See, for example, Constitution Committee, Space Industry Bill [HL] (2nd Report, Session 2017–19, HL Paper 18); Constitution Committee, Haulage Permits and Trailer Registration Bill [HL] (11th Report, Session 2017–19, HL Paper 90); Delegated Powers and Regulatory Reform Committee, Childcare Bill, Regulation of Political Opinion Polling Bill, Airports Act 1986 (Amendment) Bill, Cities and Government Devolution Bill: Government response, Draft Legislative Reform (Duchy of Lancaster) Order 2015 (2nd Report, Session 2015–16, HL Paper 12)

32 For example, the DPRRC issued two reports on the Sanctions and Anti-Money Laundering Bill [HL] during its passage, one on the Bill (7th Report, Session 2017–19) and the second on Commons amendments to it (26th Report, Session 2017–19). The DPRRC also published three reports that included the Government’s responses to their work on that Bill (10th, 11th and 28th Reports, Session 2017–19).

33 Cabinet Office, Guide to Making Legislation (July 2017), para 3.15: [accessed 19 November 2018]

34 Ibid.

35 Ibid.

36 148 (Lord Newby)

37 Q 125 (Baroness Fookes)

38 Ibid.

39 See, for example, Q 156 (Meg Russell) and 148 (Baroness Smith of Basildon)

40 Written evidence from the Bar Council of England and Wales (LEG0042)

41 Written evidence from the Secondary Legislation Scrutiny Committee (LEG0050)

42 Q 147 (Lord Newby)

43 Written evidence from the Bar Council of England and Wales (LEG0042)

44 Q 147 (Lord Newby)

45 Q 97 (David Lidington MP)

46 Q 87 (Paul Burstow)

47 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill (3rd Report, Session 2017–19, HL Paper 22); Taxation (Cross Border Trade) Bill; Laser Misuse (Vehicles) Bill [HL]; Sanctions and Anti-Money Laundering Bill [HL]: Government Response (11th Report, Session 2017–19, HL Paper 65); Agriculture Bill (34th Report, Session 2017–19, HL Paper 194)

48 Delegated Powers and Regulatory Reform Committee, European Union (Withdrawal) Bill (3rd Report, Session 2017–19, HL Paper 22)

49 Written evidence from the Bingham Centre for the Rule of Law (LEG0052)

50 Q 9 (Dr Ruth Fox)

51 Delegated Powers and Regulatory Reform Committee, Special Report: Quality of Delegated Powers Memoranda (7th Report, Session 2014–15, HL Paper 39), Annex 4

52 Q 123 (Baroness Fookes)

53 Delegated Powers and Regulatory Reform Committee, Guidance for Departments on the role and requirements of the Committee, July 2004

© Parliamentary copyright 2018