Chapter 3: Problems with delegated powers
40.Delegations of power are a necessary part of the legislative process, but their use should be limited and carefully scrutinised. The suitability of any individual delegation is assessed by the Delegated Powers and Regulatory Reform Committee on its merits and the particular circumstances of the bill in question. As part of our scrutiny of public bills, the Constitution Committee will on occasion comment on delegated powers when they engage constitutional issues. In this chapter we draw on our legislative scrutiny reports, as well as those of the DPRRC, to highlight some recurring problems with delegated powers.
Broad or unclear powers
41.There has been a tendency for bills to be introduced with broad or vaguely worded delegated powers that leave considerable discretion to ministers. Such provisions make it harder for Parliament to scrutinise the policy aims of the bill and can raise concerns about legal certainty. In our second report of the 2015–16 session, we said that:
“we see the continuation of a trend that was evident during the last Parliament—a tendency towards the introduction of vaguely worded legislation that leaves much to the discretion of ministers. This is apparent in the broad discretion given to the Secretary of State to implement the Cities and Local Government Devolution Bill [HL], and in the vague language in the Psychoactive Substances Bill [HL] and the Charities (Protection and Social Investment) Bill [HL] which raises concerns about legal certainty and the precise scope of powers being afforded to the Secretary of State to make changes through secondary legislation.”54
42.The following two examples are indicative of the concerns that we and the DPRRC have reported on repeatedly. On the Immigration Bill 2015–16, the DPRRC commented on powers that were inappropriate because it was not “clear on the face of the Bill who is to exercise the sub-delegated power and what arrangements are to be made for its Parliamentary control.”55 We observed that the Bill would permit the Secretary of State to provide failed asylum-seekers with support only if—in addition to meeting an impending destitution criterion—they faced “a genuine obstacle to leaving the United Kingdom”. The definition of “genuine obstacle” was not given in the Bill, but was to be determined by regulations. We concluded that the House was being asked to legislate without a clear understanding of how the legislation might affect individuals in potentially desperate circumstances.56
43.In the current session, the DPRRC reported at length on the Data Protection Bill [HL]. It noted that the delegated powers memorandum justified many of the powers simply on the basis that “flexibility” was needed to deal with future changes of circumstances. The DPRRC concluded:
“We are troubled that the Government should think it appropriate, on the basis of such a thin justification, to seek to take wide-ranging powers allowing current or future Ministers to implement important policy changes without the need for further primary legislation.”57
44.Also in this session, we reported on the Space Industry Bill [HL]. We observed that the Bill conferred around 100 delegated powers and that some fundamental policy choices would be made using the powers. We said that a
“Bill which contains a large number of delegated powers in lieu of policy detail can be challenging for Parliament to scrutinise meaningfully, as it is more difficult to form an accurate impression of what the legislative package as a whole will look like. In such circumstances, scrutiny can be aided by the publication alongside the Bill of illustrative regulations giving a sense of how the Government envisages using the delegated powers contained in the Bill.”58
45.Parliamentary scrutiny is assisted when the Government publishes, alongside the bill, drafts of the statutory instruments that might be made using delegated powers. There is, however, no requirement for the statutory instruments laid after the primary legislation is enacted to follow those illustrative drafts. In the case of the Space Industry Bill, the Government had published ‘policy scoping notes’, an additional explanatory document, rather than draft regulations. We observed that: “The notes are relatively detailed, and, while not a full substitute for detail on the face of the Bill or for illustrative regulations, they go some way towards assisting scrutiny by giving a sense of how delegated powers are likely to be used.”59
46.In addition to broad general powers, we have also reported on bills where delegated powers have been proposed for matters of policy significance, such as the creation of new criminal offences or public bodies. For example, clause 34 of the Children and Social Work Bill in 2016–17 provided for criminal offences to be created in relation to other clauses which contained little detail and were themselves expected to be defined and implemented by delegated legislation. We concluded that it was
“difficult to ascertain how Parliament may properly scrutinise or debate the offences that may be created under this Clause during the passage of the Bill. From a constitutional point of view, the creation of criminal offences, whether or not punishable by imprisonment, should be subject to proper and full parliamentary scrutiny.”60
47.The Trade Bill in the current session allows for the creation of a new public body, the Trade Remedies Authority (TRA), by secondary legislation. The TRA will be a non-departmental body which will take over the anti-dumping functions and other operations relating to subsidies etc. currently performed at EU level, to protect UK businesses from unfair business practices. The Bill gives the Secretary of State broad discretion as to the creation and constitution of this body, the appointment of its members and its operations, including the power to issue guidance which the TRA must have regard to when carrying out its functions. We concluded that, while we recognised “the pressing timescales and uncertainties concerning Brexit, in constitutional terms, creating and empowering an important public body in such a manner [was] inappropriate.”61
48.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 inappropriate. There must be a compelling justification for delegated powers and it is for Parliament to decide if that justification is acceptable.
49.It is incumbent on the Government to provide Parliament with a full explanation of, and justification for, the delegated powers it seeks. Where broad powers are sought, the Government should publish draft secondary legislation in time to allow Parliament to assess its potential usage when each House is considering the primary legislation. Alternative publications, such as “policy scoping notes”, may assist the process of scrutiny, but greater clarity will be achieved only through drafts of the statutory instruments.
50.In recent years the Government has sought to create criminal offences and establish public bodies through delegated powers. This is constitutionally unacceptable.
‘Skeleton bills’
51.The extreme end of the spectrum of legislative uncertainty comes in the form of ‘skeleton bills’, where broad delegated powers are sought to fill in policy details at a later date. We heard a great deal of scepticism about skeleton bills “that lead to lots of regulation because [the policy] has not been worked out yet.”62
52.Lord Newby said that bills arrived in skeleton form:
“because the Government have committed themselves to doing something and do not know quite what to do. If you look at the Cities and Local Government Devolution Bill, for example, at Second Reading the degree of confusion as to how that Bill was going to work was pretty broad. It appeared to be that the Bill had come forward too soon.”63
53.Another example of a skeleton bill was the Childcare Bill in 2015–16. The DPRRC reported that:
“the Government’s stated approach to delegation is flawed. While the Bill may contain a legislative framework, it contains virtually nothing of substance beyond the vague ‘mission statement’ in clause 1(1). It is quite inaccurate to describe the nature of the provision authorised by clause 1(4) (particularly in view of the possible ingredients envisaged by subsection (5)) as ‘operational, administrative and technical detail’.”64
Baroness Smith of Basildon said that half the Bill was left to regulations: “There was no detail; there was no real policy direction there, which I thought was inappropriate.”65
54.A more recent is example is the Agriculture Bill from the current session. The DPRRC described the number of delegated powers in the bill as “ominous” and concluded that “it cannot even be said that the devil is in the detail, because the Bill contains so little detail”.66
55.The Bar Council said that skeleton bills “should be assessed on their merits, but with a sceptical approach”, and that they should be subject to “appropriate scrutiny and sunset provisions.”67 They added that skeleton bills were, “in most cases … simply shorthand for [the Government saying] ‘we have not thought through what we intend to do’.”68 The British Bankers’ Association commented that, under normal circumstances, the use of skeleton bills “should be tightly constrained so as to ensure appropriate parliamentary and stakeholder scrutiny.” It added that, in the financial services context, the use of skeleton bills could be appropriate “provided the body to whom the power is delegated is appropriate and the underlying detail is highly technical, or the timescales sufficiently pressing.”69
56.The Bingham Centre for the Rule of Law said that “Bills which are wholly or partly ‘skeleton’ in nature should not be adopted in the absence of an exceptional justification, and the burden of explanation should fall on the government.”70
57.We have previously stressed the importance of good policy development as the foundation of good legislation.71 If the Government is thorough in its policy development prior to drafting legislation, the need for skeleton bills would be reduced. The Law Society of Scotland made a similar point: “If the Parliamentary Counsel Guidance on making good law is adhered to, that law will be necessary, clear, coherent, effective and accessible. Skeleton Bills by their very nature do not fulfil these criteria.”72
58.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;73 it cannot rely on generalised assertions of the need for flexibility or future-proofing.
Henry VIII powers
59.‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation.74 As secondary legislation is subject to a lesser degree of scrutiny than primary legislation, Henry VIII clauses are a significant form of delegated power.
60.Elizabeth Gardiner, First Parliamentary Counsel, said that there was “a range of situations where it might be entirely sensible to take a Henry VIII power where it is not sensible to come back and expect Parliament to spend time on the sorts of amendments that you might want to make.” She gave as an example a consequential amendment power at the back of a bill where some tidying up might be required, such as amending references across the statute book to a body whose name has been changed: “So these are not substantive new policies but powers that are just needed to tidy up.”75
61.The Bar Council agreed that:
“There will be cases in which it is convenient and appropriate to grant a number of tightly-circumscribed Henry VIII powers, focused on the aspects of a legal regime that may need to be amended in future … in some situations, the granting of Henry VIII powers might increase the chance of creating ‘good law’ … particularly where the Henry VIII power is limited to a power to make consequential or incidental provision.”76
They suggested that “Granting a small number of Henry VIII powers will in most cases be preferable to granting a single broad power.”77
62.However, the Bingham Centre stated that “Henry VIII clauses should be recognised as constitutionally anomalous”; they were acceptable “only where there is an exceptional justification and no other realistic way of ensuring effective governance.”78
63.The DPRRC has said “Henry VIII powers should not be inserted in Bills as a matter of routine, and any that are included should be fully explained and justified.”79 Baroness Fookes, then Chairman, said the Committee regarded Henry VIII clauses “with great suspicion”. Although she recognised that there were occasions when such a power could be useful, in all cases “really good reasons should always be put forward.”80
64.Too frequently, good reasons have not been proffered. On the Digital Economy Bill in 2016–17, the DPRRC raised concerns about three Henry VIII clauses for which the Government had not provided a “convincing justification”.81 In respect of one of the clauses, it said “This one appears to be have been taken just in case it may prove useful.” The Committee concluded that other Henry VIII clauses in the Bill would be acceptable only if they were narrowed in scope or defined with greater specificity as to their intended application.82
65.In the Data Protection Bill [HL] in the current session, the DPRRC identified “several widely-drafted and highly significant Henry VIII provisions” that were justified by the Government “simply on the basis that ‘flexibility’ is needed to deal with future changes of circumstances.”83 The DPRRC recommended the removal of five of the delegated powers, and amendments to narrow the scope of others or change the scrutiny procedures to which they would be subject.84
66.We have raised concern about the prevalence of Henry VIII clauses in bills. We drew attention to the number and breadth of the delegated powers in the Data Protection Bill and concluded:
“This is an increasingly common feature of legislation which, as we have repeatedly stated, causes considerable concern. The Government’s desire to future-proof legislation, both in light of Brexit and the rapidly changing nature of digital technologies, must be balanced against the need for Parliament to scrutinise and, where necessary, constrain executive power.”85
67.Henry VIII clauses are “a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided.”86 Such justification should set out the specific purpose that the Henry VIII power is designed to serve and how the power will be used. Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility.87
Delegation and devolution
68.We have raised concerns about the inclusion in bills of delegated powers that may amend the legislation passed by the devolved legislatures. For example, the Digital Economy Bill in 2016–17 included a Henry VIII power that permitted primary and secondary legislation passed by the devolved legislatures to be amended by secondary legislation passed by the UK Parliament without the consent or involvement of the relevant devolved legislatures or governments.
69.The same issue has arisen on a number of bills in the current session, including the Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill,88 the Space Industry Bill [HL],89 and the Sanctions and Anti-Money Laundering Bill [HL].90 On the former bill, the Government’s response was that such powers “reflect well-established reciprocal arrangements” and that “in practice” the Government will liaise with the devolved executive “as necessary” when the power will be used to amend devolved legislation.91
70.Where UK ministers seek a power to amend devolved legislation, they must be subject to a statutory requirement to consult the relevant devolved administration.
Delegated legislation and guidance
71.Some witnesses raised concerns about the balance between the use of secondary legislation and ‘policy guidance’ from government departments.
72.The Bar Council said that policy guidance, “without any clear or express statutory basis, has in some areas of law created a complex body of provisions that governed the way individuals and businesses can behave” but which was not subject to parliamentary scrutiny:
“A clear example is the Guidance issued by the Home Office in connection with the sponsorship of foreign students or employees in the points based immigration system … this Guidance is a very clear example of regulation outside any framework of parliamentary control.”92
73.Judge Michael Clements, President of the First-tier Tribunal, Immigration and Asylum Chamber, told us:
“Home Office guidance does not form part of statute or statutory instruments. However, the Home Office produces masses of guidance that [judges] need to be aware of, or certainly the person making an application needs to be aware of. Not all of it is widely distributed. Sometimes you have to root around to find out what the policy guidance from the Home Office is … certain parts of the guidance have started to form policy, such as the Immigration Rules for families.”93
74.A contrasting view was given by the British Bankers’ Association, which said that areas traditionally dealt with in secondary legislation had not been “downgraded” to guidance or codes: “In the financial services industry, the reverse is indeed sometimes the case with guidance and recommendations subsequently turned into legislation.”94
75.The Secondary Legislation Scrutiny Committee said that “where terms contained in secondary legislation have a significant impact on the way in which that legislation is implemented, then their meaning should be set out in the legislation itself rather than in guidance.” It referred to the Supreme Court’s ruling in the case of Mr Alvi which had led the Home Office to lay an instrument the following day to incorporate into the Immigration Rules with immediate effect 290 pages of material previously published as guidance. This was done so that the points-based immigration system could continue to function as the Government intended.95
76.In our scrutiny of the Counter-Terrorism and Border Security Bill, we expressed concern that guidance (in the form of a code of practice) would significantly determine new powers to stop, search, question and detain people on the grounds of “hostile activity”.96 We were not convinced that such an important matter should be left to supplementary materials, especially as the Bill imposed an obligation on officers to abide by the code of practice. The Government assured the Joint Committee on Human Rights that this code of practice would be published in draft in advance of committee stage in the House of Lords.97 However, this meant that a crucial supporting document was not available to the House of Commons for the entirety of its consideration of the Bill; a situation which we concluded was unacceptable.98
77.The Chartered Institute of Taxation told us that it was “sometimes necessary to rely on guidance rather than further complicate legislation.” However, they had seen “numerous examples of changed HMRC policy not being reflected in their published guidance even many years after the shift.”99 They concluded that “It would be a practical impossibility for guidance to be removed entirely and replaced with primary or secondary legislation”; what mattered most was ensuring guidance was up to date and available.100
78.David Lidington MP, then Leader of the House, said that it was:
“Government policy that guidance should not be used to circumvent the usual way of regulating a matter. If the policy is to create rules that must be followed, the Government accepts that this should be achieved using regulations subject to parliamentary scrutiny and not guidance.”
He added that there was nothing to prevent Parliament from scrutinising guidance and that, in exceptional circumstances, it could be appropriate for guidance to be laid before Parliament or subject to the negative procedure.101
79.The DPRRC observed that on the Ivory Bill and the Mental Health Units (Use of Force) Bill in the current session the Secretary of State was given power to issue guidance which specified legislative requirements or was otherwise determinative of matters which affected a person’s legal rights or obligations. The DPRRC concluded:
“The guidance is therefore not properly guidance at all but to all intents and purposes a form of legislation. Since it is not guidance it should not in our view be given that label. This is not simply a matter of form; but it ensures that the relevant provisions are treated consistently with other legislation. We would be grateful for the Government’s views on this practice of camouflaging legislation as guidance and seek an assurance that it will not be continued in the future.”102
80.In response, the Government agreed to amend the Ivory Bill to include in secondary legislation matters that had been intended for guidance and committed to laying before Parliament its proposed guidance under the Mental Health Units (Use of Force) Bill. The Government also confirmed that:
“guidance should not be used to circumvent the usual way of regulating a matter. If the policy is to create rules that must be followed, the Government accepts that this should be achieved using regulations subject to parliamentary scrutiny and not guidance. The purpose of guidance is to aid policy implementation by supplementing legal rules.”103
81.Bills and statutory instruments should be sufficiently clear to ensure that guidance need not be relied on to interpret legislation. Guidance is not legislation and should not be treated as such. If there are policy lacunae in the legislation itself, it is unacceptable that guidance, which for the most part avoids parliamentary scrutiny, should serve to fill them.
54 Constitution Committee, Cities and Local Government Devolution, Psychoactive Substances and Charities (Protection and Social Investment) Bills (2nd Report, Session 2015–16, HL Paper 9), para 2
55 Delegated Powers and Regulatory Report Committee, Cities and Local Government Devolution Bill [HL]: Commons amendments (17th Report, Session 2015–16, HL Paper 73)
56 Constitution Committee, Immigration Bill (7th Report, Session 2015–16, HL Paper 75)
57 Delegated Powers and Regulatory Reform Committee, Data Protection Bill [HL] (6th Report, Session 2017–19, HL Paper 29)
58 Constitution Committee, Space Industry Bill [HL] (2nd Report, Session 2017–19, HL Paper 18)
59 Ibid.
60 Constitution Committee, Children and Social Work Bill (2nd Report, Session 2016–17, HL Paper 10), para 8
61 Constitution Committee, Trade Bill (13th Report, Session 2017–19, HL Paper 193)
64 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), paras 1–13
66 Delegated Powers and Regulatory Reform Committee, Agriculture Bill (34th Report, Session 2017–19, HL Paper 194)
68 Ibid.
71 See Constitution Committee, The Legislative Process: Preparing Legislation for Parliament (4th Report, Session 2017–19, HL Paper 27)
73 Delegated Powers and Regulatory Reform Committee, Guidance for Departments on the role and requirements of the Committee, July 2004
74 The expression is a reference to King Henry VIII’s preference for legislating directly by proclamation rather than through Parliament.
77 Ibid.
79 Delegated Powers and Regulatory Reform Committee, Higher Education and Research Bill (10th Report, Session 2016–17, HL Paper 86), para 39
81 Delegated Powers and Regulatory Reform Committee Digital Economy Bill: Parts 5–7 (13th Report, Session 2016–17, HL Paper 95), para 39
82 Ibid.
83 Delegated Powers and Regulatory Reform Committee, Data Protection Bill (6th Report, Session 2017–19, HL Paper 29)
84 Ibid.
85 Constitution Committee, Data Protection Bill [HL] (6th Report, Session 2017–19, HL Paper 31)
86 Constitution Committee, Public Bodies Bill [HL] (6th Report, Session 2010–12, HL Paper 51)
88 Letter from the Chairman to Lord Bourne of Aberystwyth on the Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill, 12 October 2017 and Letter from the Chairman to Lord Bourne of Aberystwyth on the Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill, 29 November 2017
89 Constitution Committee, Space Industry Bill [HL] (2nd Report, Session 2017–19, HL Paper 18)
90 Constitution Committee, Sanctions and Anti-Money Laundering Bill [HL] (8th Report, Session 2017–19, HL Paper 39)
91 Letter from Lord Bourne of Aberystwyth to the Chairman on the Telecommunications Infrastructure (Relief from Non-Domestic Rates) Bill, 6 November 2017
96 Constitution Committee, Counter-Terrorism and Border Security Bill (14th Report, Session 2017–19, HL Paper 207)
97 The draft code of practice was not published until 1 November 2018, after two days of committee stage debate had already taken place in the House of Lords.
98 Constitution Committee, Counter-Terrorism and Border Security Bill (14th Report, Session 2017–19, HL Paper 207)
100 Ibid.
102 Delegated Powers and Regulatory Reform Committee, Thirty First Report (31st Report, Session 2017–19, HL Paper 177)
103 Delegated Powers and Regulatory Reform Committee, Thirty Fifth Report (35th Report, Session 2017–19, HL Paper 202)