Summary of conclusions and recommendations
1.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. (Paragraph 15)
2.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. (Paragraph 16)
3.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. (Paragraph 25)
4.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.(Paragraph 26)
5.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. (Paragraph 33)
6.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. (Paragraph 35)
7.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. (Paragraph 39)
8.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. (Paragraph 48)
9.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. (Paragraph 49)
10.In recent years the Government has sought to create criminal offences and establish public bodies through delegated powers. This is constitutionally unacceptable. (Paragraph 50)
11.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; it cannot rely on generalised assertions of the need for flexibility or future-proofing. (Paragraph 58)
12.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.” 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. (Paragraph 67)
13.Where UK ministers seek a power to amend devolved legislation, they must be subject to a statutory requirement to consult the relevant devolved administration. (Paragraph 70)
14.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. (Paragraph 81)
15.The proliferation of scrutiny procedures for statutory instruments, many with only minor differences, adds unnecessary complexity. We recommend that the Government use an existing model of the enhanced affirmative procedure in any future bill, when strengthened scrutiny is required, rather than creating a new variation. (Paragraph 89)
16.The sifting procedure for instruments made under the European Union (Withdrawal) Act 2018 is still in its infancy and it is too early to assess its efficacy as part of this inquiry. We will return to this subject again at the appropriate time. (Paragraph 99)
17.There is no provision for amending statutory instruments and we are not proposing one. However, this means that Parliament’s only options when presented with an inappropriate or defective statutory instrument are to accept it or reject it. This places a greater onus on the Government to respond to the concerns raised by parliamentarians, and to withdraw and re-lay statutory instruments where appropriate. (Paragraph 106)
18.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, and this report has shown, 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. (Paragraph 110)
19.The Government already has a mechanism to remedy faults in statutory instruments which are identified by parliamentary scrutiny. SIs subject to the affirmative procedure are made only when signed by a minister after parliamentary debates have taken place; until they are signed, they can be withdrawn, revised and re-laid. SIs subject to the negative procedure come into force on the date specified on the instrument, but the Government already has the power to lay a second SI to revoke and replace the first. (Paragraph 111)
20.However, for these 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 nor fatal. It does not prevent the Government subsequently tabling a revised SI having listened to and acted on parliamentarians’ concerns. (Paragraph 112)
21.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. (Paragraph 113)