Chapter 2: Reasons for and against delegated legislation
What is delegated legislation?
15.Parliament is the sovereign law-making body and primary legislation — called bills during their passage through Parliament and Acts of Parliament once they have received Royal Assent — is law made by Parliament. Sometimes Parliament may decide to delegate legislative powers to ministers (or others).12 This is done by including in an Act (sometimes referred to as “the parent Act”) provision which confers legislative powers on ministers. The law made by ministers is variously called delegated legislation, secondary legislation,13 and subordinate legislation, and it is usually, but not always, made by statutory instrument. In this report, we largely refer to it as delegated legislation.
Henry VIII powers
16.We shall be referring throughout this report to a type of delegated power called a Henry VIII power. Henry VIII powers have long attracted particularly strong criticism. This is because they are powers conferred by primary legislation which enable a minister, by delegated legislation, to amend, repeal or otherwise alter the effect of an Act of Parliament. The objection to Henry VIII powers rests in principle on the fact that primary legislation, in contrast to delegated legislation, is subject to relatively substantial parliamentary scrutiny, involving first reading (formal), second reading (general debate about the bill), committee stage (line by line scrutiny and consideration of amendments suggested by members of the House, including the government), report stage (further amendable stage) and third reading in the first House, followed by the same stages in the second House and then “ping pong” between the Houses until final agreement on the text of the bill is achieved. As we set out below (see paragraphs 27 to 35), delegated legislation is unamendable and, if debated at all, is debated once in either or both Houses.
Skeleton legislation
17.We shall also be referring frequently to skeleton— or framework— legislation. This is described in detail in Chapter 4 (see paragraphs 59 to 74). It includes, in brief, bills or parts of bills which so substantially consist of delegated powers that the policy change which the bill or clauses are intended to implement is, in effect, left to delegated legislation.
Affirmative and negative procedure – draft and made
18.When Parliament confers a power to make delegated legislation, the parent Act will specify the level of parliamentary scrutiny, if any, to which the delegated legislation will be subject. Sometimes there will be no subsequent scrutiny or the requirement is simply that the instrument should be laid before Parliament. On other occasions, Parliament has decided that the statutory instrument should be subject to a parliamentary procedure. There are two main sorts of procedure: the negative and the affirmative.
- If an instrument is subject to the negative procedure, it is usually first made by the minister (and is therefore law) and then laid before Parliament. It will remain law so long as neither House successfully objects to it (that is, “prays against it” in accordance with the Statutory Instruments Act 1946).
- If it is subject to the affirmative procedure, it is usually laid before Parliament as a draft (and so not law) and cannot be made by the minister (so become law) unless both Houses approve it.14 This is called the draft affirmative procedure. Sometimes affirmative instruments are made by the minister before they are laid — so they are not laid simply in draft form — and need the approval of Parliament either to come into force or to remain in force beyond a period specified in the parent Act (usually 28 or 40 days). This is called the made affirmative procedure and has been used in cases of urgency under both Brexit-related and pandemic-related legislation.
Under neither of the negative or the affirmative procedures is Parliament able to amend a statutory instrument.
Enhanced scrutiny procedures
19.Occasionally, some delegated legislation is subject to a more rigorous level of scrutiny by Parliament. Such procedures give Parliament the opportunity to propose amendments to an instrument. They involve a two-stage procedure and take the following forms:
- a proposal containing a draft order is laid and then, after a specified scrutiny period, the draft order itself may be laid (for example, instruments laid under section 17 of the Local Government Act 1999); or
- a draft order is laid and then, after a specified scrutiny period, a revised draft order may be laid (for example, instruments laid under the Legislative and Regulatory Reform Act 2006).
20.In 2012, the DPRRC published a report entitled Strengthened Statutory Procedures for the Scrutiny of Delegated Powers which contains a list of the enhanced scrutiny procedures available at that time.15
21.Since then, two new procedures have been introduced under the European Union (Withdrawal) Act 2018 (“the withdrawal Act”). The first concerns the “sifting” procedure of so-called proposed negative instruments. Whereas a parent Act almost always specifies the level of parliamentary scrutiny to be applied to the exercise of a power, the withdrawal Act (like the European Communities Act 1972) contains regulation-making powers where the level of parliamentary scrutiny is not specified, and the choice is left to ministers. During the passage of the withdrawal Bill through Parliament, both the House of Commons Procedure Committee and the DPRRC said that the level of scrutiny should be a matter for Parliament — not for ministers — and both recommended that a scrutiny committee should be established to consider relevant instruments where the minister proposes that it should be subject to the negative procedure only. In the House of Commons, the Bill was amended to introduce a sifting mechanism in the Commons. Subsequent amendments made similar provision for the House of Lords. The sifting function is undertaken by the SLSC in the Lords and by the European Statutory Instruments Committee (ESIC) in the Commons.16 Although a committee recommendation to upgrade an instrument from the negative to the affirmative procedure is advisory only, it has invariably been the case that when either or both Committees have made such a recommendation, the Government have accepted it. The European Union (Future Relationship) Act 2020 also includes provision for a proposed negative instruments procedure.
22.The second new procedure under the withdrawal Act concerns draft instruments published under Schedule 8 to the Act. Under this provision, instruments that amend or revoke delegated legislation made under section 2(2) of the European Communities Act 1972 and made under a power conferred before the beginning of session 2017–19, must be (1) subject to an enhanced scrutiny procedure and (2), when laid formally, subject to the affirmative procedure. The enhanced scrutiny procedure requires a proposed instrument to be published for at least 28 days before it is laid before Parliament to allow for comment, whether by a committee of either House or any other organisation or individual. When the instrument is laid formally, the minister must make a “scrutiny statement” setting out, amongst other things, the Government’s response to any recommendations made by a parliamentary committee. In addition, the minister is required to provide two further statements: one setting out the “good reasons for the amendment or revocation” and the other explaining relevant law and the effect of the amendment or revocation on retained EU law.17 Scrutiny of published drafts is undertaken by the SLSC in the Lords and ESIC in the Commons.
Why delegated legislation is necessary
23.While the delegation of powers can be controversial, the need for delegated legislation has long been widely accepted. Erskine May, the authoritative text on parliamentary procedure, refers to the advantages arising from its “speed, flexibility and adaptability”,18 and the first report of the Delegated Powers Scrutiny Committee, published in March 1993, began:
“Parliament recognises the need to delegate some legislative powers. The ever-increasing mass of detail in statutory instruments could not be scrutinised by Parliament if it formed part of primary legislation. The need to change detailed provisions from time to time would place impossible burdens on Parliament if the changes always required the introduction of new legislation. The argument is not whether delegation is ever justified but what criteria can be used in determining whether particular proposals for delegation are acceptable.”19
24.This has been a long-held view. In 1932, the report of the Committee on Ministers’ Powers (“the Donoughmore Committee”) said: “We do not agree with those critics who think that the practice is wholly bad. We see in it definite advantages, provided that the statutory powers are exercised, and the statutory functions performed in the right way”.20 In a debate on 31 January 1990 on the quality of legislation, the Lord Advocate, Lord Fraser of Carmyllie, made a similar point: “… any debate on the propriety or otherwise of a particular power to make subordinate legislation must start from the premise … that there is nothing inherently wrong with delegated legislation. Without it, governments simply could not deliver the degree of provision which is now demanded of them.”21 Sir Jonathan Jones, in his recent remarks to the Statute Law Society, said: “As a matter of principle, the use of … delegated legislation is clearly possible and legitimate within our constitution. It’s a well-established and indeed indispensable feature of our system of legislation”.22
Why delegated legislation is contentious
25.In the following chapters we consider further the controversy surrounding the delegation of powers. Put simply, the issue is that, in conferring powers on minsters, Parliament is delegating its law-making powers so that legislative power shifts from the democratically appointed legislature to the executive. The resulting democratic deficit can be offset to some extent by the parent legislation including:
- provision which explicitly limits the scope of the legislative powers conferred on ministers clearly on the face of the bill, and
- a requirement that the exercise of a power should be subject to parliamentary oversight.
26.But these supposed safeguards are imperfect. A government which commands a majority in the House of Commons can resist attempts to restrict the scope of a power. Sir Jonathan Jones commented: “Under our constitution, with the doctrine of parliamentary sovereignty at its heart, it is open to Parliament to confer whatever powers it wants on ministers, subject to whatever conditions, limitations and procedures Parliament wishes to impose”; but, he went on, “… of course a government with a big majority can generally get Parliament to confer the powers it wants”.23 As for parliamentary oversight of delegated legislation, whilst scrutiny by parliamentary committees and the Houses is effective in highlighting concerns, the procedures lack teeth — a point which was clearly demonstrated in 2015 when, following objection in the House of Lords to the draft Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, the Government appointed the Strathclyde Review, the report of which drew trenchant criticism from, amongst others, this Committee, the Constitution Committee and the SLSC. Given its significance, we consider the Strathclyde Review in detail in the next chapter.
Parliamentary oversight of delegated legislation – its limitations
27.Where a statutory instrument is subject to a parliamentary proceeding then, in principle, Parliament has the potential to intervene and even to reject an instrument. In practice, however, that potential is circumscribed by (1) the fact that neither the affirmative nor negative procedure allows Parliament to amend a statutory instrument and (2) the parliamentary practice relating to objecting to delegated legislation. While issues about whether delegated legislation should be amendable or the parliamentary practice should be recast are beyond the scope of this report, understanding this context is, we believe, crucial to understanding why there is widespread concern about the delegation of legislative powers.
Delegated legislation cannot be amended
28.Delegated legislation is made by the executive and is unamendable by Parliament.24 Instruments laid before both Houses are laid at the same time in each House and dealt with by each House independently. There is no “dialogue” between the Houses because, in contrast to primary legislation, there is no need to seek agreement on the text because, in turn, neither House can change the text of the instrument. If one House declines to approve an affirmative instrument or successfully objects to a negative instrument, the instrument is lost.
“All or nothing”
29.Without a power to amend, the options available to the two Houses are, in effect, “all or nothing”: either the instrument becomes (or remains) law, or it is voted down in its entirety. But the choice is not evenly weighted. The number of occasions on which statutory instruments have been rejected is very small indeed. Since 1968, when the Lords rejected the draft Southern Rhodesia (United Nations Sanctions) Order 1968, the House of Lords has defeated the Government on six motions relating to five statutory instruments — four involving motions to reject and two by motions to defer.25
30.A report by the Joint Committee on Conventions of the UK Parliament (under the chairmanship of the Rt Hon. Lord Cunningham of Felling), published in 2006, stated: “By 1994 it was beginning to be asserted as a convention not merely that the Lords did not defeat [statutory instruments], but that they did not even divide against them.”26 The Joint Committee noted that, in response to this development, in October 1994, Lord Simon of Glaisdale had initiated a debate on the proposition: “That this House affirms its unfettered freedom to vote on any subordinate legislation submitted for its consideration.” The motion was carried without a vote.27 The Joint Committee concluded that:
“… the House of Lords should not regularly reject statutory instruments [SI], but that in exceptional circumstances it may be appropriate for it to do so. … It is not incompatible with the role of a revising chamber to reject an SI, since (a) the Lords (rightly or wrongly) cannot exercise its revising role by amending the SI or in any other way, (b) the Government can bring the SI forward again immediately, with or without substantive amendment …, and (c) the power to reject SIs gives purpose and leverage to scrutiny by the Joint Committee on SIs, and by the new Lords Committee on the Merits of SIs”.28
31.Parliament’s “all or nothing” choice is therefore firmly rooted in favour of “all”.
32.Suggestions for an intermediate option have been proposed from time to time. For example, the report of the Royal Commission on the Reform of the House of Lords (chaired by the Rt Hon. Lord Wakeham) (“the Wakeham Commission”), published in 2000, recommended a statutory approach whereby “where the second chamber votes against a draft instrument, the draft should nevertheless be deemed to be approved if the House of Commons subsequently gives (or, as the case may be, reaffirms) its approval within three months”; and “where the second chamber votes to annul an instrument, the annulment would not take effect for three months and could be overridden by a resolution of the House of Commons”.29 The Report of the Leader’s Group on Working Practices (chaired by Lord Goodlad), published in 2011, noted that “… both the volume … and importance of delegated legislation continues to grow” and endorsed “the spirit” of the Wakeham Commission proposal. The Group proposed that a new convention should be adopted by resolution to the effect that, in defeating an affirmative instrument, “the House’s intention would be to invite the Government to ‘think again’”. Then, if, after having considered the issues raised by the Lords, the Commons were to approve the instrument, the House would undertake not to vote it down a second time.30
33.Sadly, neither of these reports resulted in the adoption of an intermediate option.
Regret motions
34.Objection to an instrument can be expressed by way of a “regret motion”. Recent examples include: a motion, debated on 20 July, in the name of Baroness Thornton on the Medical Devices (Coronavirus Test Device Approvals) (Amendment) Regulations 2021 (narrowly defeated by 229 votes to 230) and another in the name of Baroness Wheeler in relation to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (passed by 221 votes to 211). But whilst regret motions prompt effective and focused debates, a government defeat does not affect the outcome in that an instrument will come into (or remain in) effect in any event.
Conclusion
35.Issues relating to whether delegated legislation should be amendable and whether parliamentary procedures could be changed to provide Parliament with a greater range of options than a simple “all or nothing” are beyond the scope of this report. That said, understanding what Parliament is currently able to do is integral to understanding why delegation of legislative powers by Parliament to the executive is constitutionally important. The limits on Parliament’s ability to intervene in delegated legislation places an even greater significance on ensuring the appropriateness of the delegation in the first place. Where laws are passed with little or no scrutiny, Parliament must do more to ensure that they do not amount to an abuse of power.
12 See footnote 6 above.
13 In paras 107–112 below, we also refer to a form of delegated legislation called tertiary legislation.
14 Some instruments are Commons-only, so require the approval of that House alone.
15 3rd Report, Session 2012–13 (HL Paper 19).
16 For additional information, see SLSC, 37th Report, Session 2017–19 (HL Paper 174).
17 For additional information, see SLSC, 3rd Report, Session 2021–22 (HL Paper 10).
18 25th ed, para 31.1.
19 Delegated Powers Scrutiny Committee, 1st Report, Session 1992–93 (HL Paper 57), para 1.
20 Donoughmore Report, p 4, para 5.
21 HL Debs, 14 Feb 1990, col 1430.
22 See footnote 4 above.
23 Ibid.
24 There are a very small number of exceptions to this: s 1(2) of the Census Act 1920 and s 27(3) of the Civil Contingencies Act 2004.
25 See SLSC, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation, 32nd Report, Session 2015–16 (HL Paper 128), paras 56 and 57.
26 Joint Committee on Conventions, Conventions of the UK Parliament, Report of Session 2005–06(HL Paper 265-I), p 55, para 195.
27 HL Deb, 20 0ctober 1994, cols 356–83.
28 Joint Committee on Conventions, Conventions of the UK Parliament, Report of Session 2005–06(HL Paper 265-I), p 62, para 228. The Merits of Statutory Instruments Committee is now called the Secondary Legislation Scrutiny Committee.
29 Wakeham Report, p 77, para 7.35.
30 Goodlad Report, pp 39–40, paras 152–3.