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Democracy Denied? The urgent need to rebalance power between Parliament and the Executive Contents

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Chapter 4: Familiar and emerging grounds for continued “considerable disquiet”

Introduction

56.As part of our background work for this report, we — with the invaluable assistance of the House of Lords Library staff — have attempted to detect whether, and if so how, the framing of delegated powers has changed since the Committee began reporting on bills in 1993. We looked at reports published in sessions immediately after the Committee began work (1992 to 1997) and compared them with those published in later sessions (2015 to 2019), extending to the most recent sessions covering Brexit and the pandemic.

57.We have made two principal findings:

• First, the issues of skeleton legislation and Henry VIII powers that dominated discussion about the delegation of legislative power at the time of The New Despotism and the Donoughmore Committee remain live — indeed, under Brexit and the pandemic, have taken on a new urgency.
• Second, new issues have emerged, the most striking of which is delegations of power that enable ministers to make what are, in effect, disguised legislative instruments often without any subsequent oversight by Parliament, but also include the use of legislative sub-delegation of power (that is, delegated powers to make tertiary legislation).

58.We also draw attention to the recent increase in use of the “made” affirmative procedure.

Familiar concerns

Skeleton legislation

59.Skeleton — or framework — legislation may involve the entire bill or clauses within a bill. The first report of the Scrutiny of Delegated Powers Committee described a skeleton bill as one which contained so many significant delegated powers that the “real operation [of the Act] would be entirely by the regulations made under it”.67 A few years later, the Committee gave a more colourful description: they were bills which were “little more than a licence to legislate and so give flesh to the ‘skeleton’ embodied in the bill”.68

60.The use of skeleton legislation has long been a source of significant concern. The Donoughmore Committee described how critics of skeleton legislation had argued that the practice had “so far passed all reasonable limits, as to have assumed the character of a serious invasion of the sphere of Parliament by the Executive”.69 Skeleton bills were mentioned in debates at the time of the inception of the Committee and were highlighted in the Committee’s first report in 1993: “Several witnesses drew attention to the even more extreme use of delegated powers that were contained in so-called “skeleton bills” — drawing particular attention to the Child Support Act which had included over 100 regulation-making powers …”.70

61.As a result of what was perceived to be the increasing use of skeleton legislation, in a letter dated 25 September 2020, this Committee, the Constitution Committee and the SLSC wrote to the Government about “the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”.71 The Committees complained that “Parliament is being asked to pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it.”

62.In session 1998–99, the Committee had been able to report that, since its inception (so covering a period of about five years), it had “found it necessary to denounce a bill as skeletal on only four occasions”.72 Following that time, the numbers have mounted. In 2015, as a result of concerns about the Cities and Local Government Devolution Bill and the Childcare Bill, the Chair of the DPRRC, Baroness Fookes, and the Chair of the Constitution Committee, the Rt Hon. Lord Lang of Monkton, wrote to the Lord President, the Rt Hon. Chris Grayling MP, urging him “to remind ministers and civil servants across Government that … ‘skeleton bills’ be introduced only when absolutely necessary and with a full justification for the decision to adopt that structure”. The Constitution Committee, in its report on the delegation of powers published in 2018, also warned against the use of skeleton bills — “[s]keleton bills inhibit parliamentary scrutiny” — and concluded “we find it difficult to envisage any circumstances in which their use is acceptable”.73

63.Despite these strictures, the number of skeleton bills in recent years has grown markedly. These include, for example, several Brexit-related bills: the Haulage Permits and Trailer Registration Bill, the Healthcare (International Arrangements) Bill, the first and second Immigration and Social Security Co-ordination (EU Withdrawal) Bills and the Medicines and Medical Devices Bill. We said about the last of these that the Bill conferred “very wide powers to almost completely rewrite the existing regulatory regimes for human and veterinary medicines and medical devices”.74 The Constitution Committee also remarked on the skeletal nature of the Bill and on the extensive delegated powers, covering a range of significant policy matters with few constraints on how they could be exercised.75 The Civil Liability Bill provides an example of a non-Brexit skeleton bill, about which we said: “We are becoming very familiar with skeletal bills. By any standards, the Bill is skeletal”.76

64.In oral evidence to the Committee, on 12 May 2021, the Lord President agreed that the Childcare Bill in 2015 had been too skeletal but said that it was “a response to a general election and a promise to deliver on something”.77 In contrast, he defended the Cities and Local Government Devolution Bill on the ground that it would not have been possible to achieve its objective without significant powers. That Bill, he said, “is one of the examples where powers are appropriate”.78 He concluded: “Detailed legislation is very important and is the right way to go in most cases, but in some cases, powers are the only way to achieve the objective and are a reasonable way of doing it, particularly if there are proper safeguards as to how those powers are used”.79 Dame Elizabeth Gardiner, First Parliamentary Counsel, in oral evidence, took a similar view with regard to the Childcare Bill: “… if we thought that that was a quick way to get something easily through Parliament, we were soon disabused of that. The whole thing ground to a halt for months while the policy caught up with the legislation and was put into the Bill”.80 But the Cities and Local Government Devolution Bill, she said, was “quite a good illustration of when a framework bill is probably the only possible solution”.81

65.The Lord President suggested that skeleton bills were more likely “immediately after a general election, for the respectable reason that a Government has just got elected promising to do something and therefore they have an urgency to do it, to implement it”.82 This is, in our view, an example of a conflict between political expediency and principle. The appropriate threshold between primary and secondary legislation should not be dependent on the exigencies of timing but should be founded on the overarching principle that the principal aspects of policy should be on the face of a bill and only its detailed implementation left to delegated legislation. There is a long-standing maxim that ignorance of the law excuses no-one but if Parliament is ignorant of the law passed in its name, then how can the public be expected to know and obey it.

A “skeleton legislation declaration”

66.Skeleton legislation signifies an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by ministers. As such, it will rarely be justifiable.

67.We recommend that:

• Should the Government introduce skeleton legislation, the delegated powers memorandum should make an explicit declaration that the bill is a skeleton bill or clauses within a bill are skeleton clauses.
• Such a declaration should be accompanied by a full justification for adopting that approach, including why no other approach was reasonable to adopt and how the scope of the skeleton provision is constrained.

68.The Lord President and First Parliamentary Counsel gave one example — the Cities and Local Government Devolution Bill — where, in their view, a skeleton bill was necessary. We invite the Government to provide further examples of bills which were, in their view, necessarily skeletal — on grounds other than political expediency — and the justification for adopting the approach taken on each occasion.

69.There may, of course, be occasion where the DPRRC may disagree with a department’s conclusion that a declaration is not required. In these circumstances, the Committee may wish to invite a minister to attend an oral evidence session to justify his or her department’s view. The Committee would then make a report to the House. In this event, it would, we believe, be helpful to the House — if time permitted — if the Committee were to make a report before second reading (rather than the usual practice of reporting before committee stage) so that the House can test the government’s justification during the debate on second reading. We envisage that such a report would focus on the skeletal nature of the legislation only, with the Committee’s more detailed analysis of delegated powers following in the usual way as a report before committee stage.

70.In paragraphs 157 to 160 below, we propose that consideration should be given to the DPRRC having a “scrutiny reserve”, exercisable in exceptional circumstances only. A difference of opinion about whether a bill contains skeleton provision and requires a skeleton legislation declaration would amount to such an exceptional circumstance. This would allow the Committee time to take evidence from the minister and prepare a report before second reading.

71.We are aware that the SLSC, in its parallel report, suggests that there may be a role for the Speakers in the two Houses in deciding whether a bill, or parts of a bill, should be declared skeletal.83 We look forward to the debate which will no doubt be promoted by this suggestion.

Consequence of a skeleton legislation declaration

72.We share the view of the SLSC that “skeleton bills or skeleton clauses, by their very nature, cannot be adequately scrutinised during their passage through Parliament” and that, therefore, there should be safeguards on the face of the bill “to ensure that the absence of adequate parliamentary scrutiny at the primary legislation stage is recompensed by a more challenging scrutiny procedure at the secondary legislation stage”.84

73.We have no final view on how this can be achieved. It raises complex issues (including agreement about what is meant by “skeleton”). One option may be that there should be a presumption, set out in the Cabinet Office Guide to Making Legislation, that where a bill contains skeleton provision, the bill should also make provision for an enhanced scrutiny procedure to apply to an instrument made under a skeleton power. A statutory option might to amend the Statutory Instruments Act 1946 to require an enhanced procedure if certain conditions about the skeletal nature of the bill are met, or the solution might rest with Parliament so that, for example, minimum intervals between stages of bills are lengthened for skeleton bills, or bills with skeleton clauses, so that the House, or a scrutiny committee, could subject the skeleton provision to examination in greater depth.

74.We support the SLSC’s recommendation that the Government, together with the two Houses of Parliament and their Procedure Committees, should consider, following consultation, how the democratic deficit inherent in skeleton legislation can be remedied.

Henry VIII powers

75.Henry VIII powers enable a minister, by delegated legislation, to amend, repeal or otherwise alter the effect of an Act of Parliament. They are contentious because they enable primary legislation to be amended by delegated legislation, the scrutiny procedures associated with which are far less robust than those applied to bills. For this reason, the DPRRC has stated that there should be a presumption that the affirmative resolution procedure should apply to statutory instruments made under a Henry VIII power and, where the government propose the negative procedure, a full explanation giving the reasons for choosing that procedure should be provided in the delegated powers memorandum.

76.Henry VIII powers, like skeleton legislation, have long been a source of concern. First Parliamentary Counsel, in oral evidence, said that the idea of Henry VIII powers “has been very controversial for a very long time”.85 The Donoughmore Committee said that a minister had to justify a Henry VIII power “up to the hilt” and it should not be used “unless demonstrably essential”.86 In the first report of the Scrutiny of Delegated Powers Committee, the Committee noted that Henry VIII clauses had become “increasingly common” — albeit acknowledging that they varied widely, with one extreme being section 2(2) of the European Communities Act 1972 — and concluded: “… the case for using Henry VIII clauses for updating lists, uprating for inflation and for making consequential and transitional provisions was recognised” but that the government should “justify the use of such clauses as being necessary: they should not be used simply for convenience”.87 Lord Simon of Glaisdale, in the debate on 31 Jan 1990 (see paragraph 39 above), referred to Henry VIII powers as “legislative anomalies … whereby the Minister can arrogate to himself the normal parliamentary functions of repealing and amending legislation.”88 The Lord President, in oral evidence, echoed the need for Henry VIII clauses to be “completely justified” and based on “a strong argument”.89

77.We have often repeated our view that there should be a presumption that the affirmative procedure should apply to instruments made under Henry VIII powers. For example:

• In a report on amendments to the Housing and Planning Bill, in session 2015–16, we said: “As a general rule, the deployment of Henry VIII powers should be exceptional, and reserved for specific, closely controlled and carefully justified purposes; they should not become a routine feature of Bills simply to facilitate presentational re-engineering.”90
• In session 2016–17, in a report on Parts 5 to 7 of the Digital Economy Bill, we were critical of a part of the Bill which included standard provision allowing regulations made under Chapter 1 of the Bill to contain “consequential, supplementary, transitional or transitory provision or savings” but which, contentiously, allowed regulations to contain provision to amend Chapter 1 itself and any other enactment passed before or in the same session as the Bill. We said: “We have emphasised in recent reports that 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. This one appears to have been taken just in case it may prove useful.” We recommended that the Henry VIII provision should be removed from the Bill unless the Government could provide a convincing justification.91 We made similar and other comments about Henry VIII powers in the same report. In response, the Government said: “The Committee views the Henry VIII power … to have been taken “just in case” and recommended that they should be removed. During the passage of the Bill the Government has considered the Bill further in the light of the Committee’s recommendation and concluded that these powers are no longer required.”92

78.In session 2017–19, the Committee made numerous comments about the use of Henry VIII powers, including powers in several Brexit-related bills, such as the European Union (Withdrawal) Bill which, we said, included “wider Henry VIII powers than we have ever seen”.93 Other examples are:

• A power to authorise additional sanctions under clause 39 of the Sanctions and Anti-Money Laundering Bill.94 The Government did not accept the Committee’s view that the powers conferred by clause 39 were inappropriate, but the Minister said that he took “the concerns expressed by the Committee and others very seriously” and, as a result, a Government amendment was tabled restricting the use of the power. The amendment stipulated that the clause 39 power to create new types of sanctions could only be used where the UK was subject to a UN obligation or other international obligation, and not where the UK was acting autonomously. It also made clear that the clause 39 power could not be used to alter the purposes of sanctions specified in clause 1 or clause 2.95
• A power to make provision in consequence of, or in connection with, Part 1 of the Immigration and Social Security Co-ordination (EU Withdrawal) Bill which would allow, amongst other things, amendment of primary legislation and retained direct EU legislation.96 In our report on the first version of the Bill, we said that we were “frankly disturbed” by the width of the power and made several recommendations for amendments.97 The recommendations were not accepted by the Government.98
• A Henry VIII power in clause 2 of the Healthcare (International Arrangements) Bill which enabled ministers, for specified purposes, to amend or repeal any Act ever passed. We said that the power was too broad and that the use of the affirmative resolution procedure did not remedy this.99 In response, the Minister conceded that
  “[i]t is recognised that more usually with consequential powers to make amendments to primary legislation, such as this, they are either limited to amendments to primary legislation that is not more recent/older than the primary legislation itself … or there is an accompanying schedule with consequential amendments that have already been identified”. But the Minister said that: “For this Bill, however, the Department has concerns that placing express limitations on the consequential power could prevent it from being used to effectively implement and give effect to detailed healthcare agreements in the future.”100 Later, however, in response to our report and to the views expressed in the House, the Government tabled a number of amendments including an amendment to sunset (that is, time limit) certain regulation-making powers contained in clause 2.101

79.In oral evidence, First Parliamentary Counsel said that the “starting point” in government was that Henry VIII powers should be subject to the affirmative procedure.102 Dame Elizabeth also said that she would “ensure that departments are aware of the principled concern about Henry VIII powers and about recent decisions, say, of the DPRRC on particular powers that have caused it concern”.103

80.Despite our concern in principle about Henry VIII powers, we recognise that there are times when it is appropriate to use them. Indeed, on occasion, we have recommended the creation of a new Henry VIII power. For example, in session 2019–21, we reported on the Domestic Abuse Bill. Clause 63 of the Bill introduced a prohibition on the cross-examination in person by a party to family proceedings where the person had been convicted104 of a “specified offence”, where the witness to be cross-examined was the victim105 of that offence. The definition of “specified offence” was to be left entirely to regulations. We recommended that a list should be set out on the face of the Bill which could be kept up to date by a power to amend the list by regulations. We further recommended that “since this would be a Henry VIII power”, the regulations should be made by the affirmative procedure.106 On that occasion, the Government did not accept the Committee’s recommendation.107

81.Dame Elizabeth also offered some examples where a Henry VIII power would be appropriate:

• “Let us say that you are setting up a very large new regime that is perhaps being refined constantly before it goes into Parliament and expected to be further refined when it is in Parliament. A decision might be taken that this thing is going to be implemented in 18 months’ time and that the work required to make the consequential amendments across the statute book would be better left until later, because we want to concentrate on getting the detail about the main policy propositions into the Bill. In those circumstances, parliamentary counsel might be advising that it would be better to take a power to make those consequential amendments.”
• “There is also a form-over-substance argument for Henry VIII powers. An example would be that you have a list of bodies in a provision, and you need to be able to change that list going forward. It is not a good use of parliamentary time to come back with a new Bill every time you want to change the name of the body, because it has been changed in the real world, or you want to add a new body. If you have made the case to Parliament that you should be able to change that legislation, the best way, in my view, of making the change to the list is to go in and amend the list, because then the reader who is looking at it on the Government’s website for the legislation sees the updated legislation all in one place.”
• “Similarly, if you have a level of fine or another financial limit that you want to uprate over time, it seems much more helpful for the reader to be able to read the actual amount that is now the law in the primary legislation. Rather than having to go off and look at regulations, it would be better for that amount to be in the Bill.”108

82.Dame Elizabeth concluded: “The danger … is that departments just see Henry VIII powers as bad and try to avoid them when, in fact, sometimes, those Henry VIII powers would produce the best-quality product for the end reader, which is what we are trying to achieve. It is a balance.” She helpfully offered to consider whether further guidance could be given to departments about examples where the use of Henry VIII powers is likely to be regarded as appropriate.

83.Henry VIII powers are controversial, and for good reason. Every such power, and its scope, must always be fully justified. We will always deprecate the use of Henry VIII powers where they appear to have been included in a bill “just in case”.

84.That said, we acknowledge that, on occasion, it is appropriate to use them, albeit subject to the presumption that the affirmative procedure should apply to their exercise and that their scope should be constrained on the face of the bill.

85.We welcome the offer made by First Parliamentary Counsel:
(1) to ensure that departments are aware of the Committee’s concern about Henry VIII powers and; (2) to consider developing guidance about examples of Henry VIII powers which are likely to regarded as appropriate. We will, of course, continue to consider each use of a Henry VIII power on its merits.

Regulatory reform legislation

86.For completeness, mention should be made of a series of bills about which the Committee has, over the years, been particularly critical, beginning with the Deregulation and Contracting Out Bill. In a report published in May 1994, the Committee stated that the power conferred by Chapter 1 of Part 1 of the Bill was “unprecedented in time of peace”, involving a very wide Henry VIII power and leaving ministers “to take the essential policy decisions”.109 In session 1999–2000, the Committee commented on a successor bill, the draft Regulatory Reform Bill, which would, it said, “if enacted, be one of the most far-reaching delegations of legislative power ever” — it would “allow ministers to do almost anything by a new form of delegated legislation, rather than by primary legislation”.110 And in session 2005–06, the Committee reported on a further successor bill, the Legislative and Regulatory Reform Bill. While not finding the regulatory reform provisions inappropriate, the Committee described the Bill as proposing “the greatest delegation of power to ministers that this Committee has seen”.111 In session 2010–12, the Committee reported on another highly contentious bill, the Public Bodies Bill, which it described as granting to ministers “unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process.”112

87.In 2012, the Committee published a special report about the strengthened statutory procedures which are applied to, for example, Legislative Reform Orders (LROs) and Public Bodies Orders (PBOs). The Committee explained:

“… this Report is concerned with those [Henry VIII powers] that confer on Ministers particularly significant powers to amend primary legislation. Frequently, Henry VIII powers are simply incidental, consequential, updating or otherwise limited in character. But many of these powers go well beyond this. In such cases Parliament has decided it is necessary for each power to be subject to additional statutory scrutiny safeguards, so giving both Houses the opportunity for a greater level of control of the exercise of such powers.”113

In the case of both LROs and PBOs, the relevant committee in each House has power to upgrade the level of parliamentary scrutiny, and — for LROs — the relevant committee may veto the Order.

88.In recent years, the strengthened statutory procedures — of which 11 are set out in the Committee’s special report — have been seldom used and we make no recommendations about them in this report. Indeed, a recent example demonstrates the high degree of parliamentary control over LROs, the most common form of order subject to a strengthened scrutiny procedure. In 2018, the Committee considered the draft Legislative Reform (Horserace Betting Levy) Order 2018 and concluded: “… the draft Order does not meet the “appropriateness” test [in the Legislative and Regulatory Reform Act 2006] and that the proposed policy changes are of a character that Parliament would expect them to be contained in a bill and afforded the greater level of parliamentary scrutiny and debate to which primary legislation is subject”.114 The Committee went on: “Should the Minister decide to proceed with the draft Order, we anticipate that we would exercise our power under section 18 of the 2006 Act to find that no further proceedings be taken in relation to the draft Order.” The Government did not proceed with the LRO.

Disturbing new trends

Disguised law

89.Issues relating to skeleton legislation and Henry VIII powers are not new. An issue that has developed more recently, however, has been an increase in the number of occasions on which ministers have been given power to supplement primary legislation by what is, in effect, disguised legislation — instruments which are legislative in effect but often not subject to parliamentary oversight.

90.Our principal concerns relate to the following:

• Mandatory guidance.
• Requirements “to have regard to” guidance (including guidance in relation to the determination of the amount of a financial penalty).
• Other forms of disguised legislation. These include powers to make a “determination”, to make “directions”, to determine “arrangements”, and to issue a “code of practice”, a “protocol” or a “public notice”.

Guidance

91.It is not unusual for a bill to contain a power to issue guidance. Guidance takes three principal forms: pure guidance (guidance which simply assists but does not direct), guidance which the law requires those to whom it is directed “to have regard to”, and mandatory guidance (guidance which must be complied with).

Mandatory guidance

92.In session 2017–19, the Committee reported on two Bills – the Ivory Bill and the Mental Health Units (Use of Force) Bill – which dealt with entirely different subjects but included the same “striking procedural similarity”, namely a delegated power enabling the Secretary of State to issue guidance which was, in effect, mandatory.115 Unlike guidance which those to whom it is addressed are required “to have regard to”, there was no element of choice. The Secretary of State’s power was to issue guidance which specified legislative requirements or was otherwise determinative of matters which affected a person’s legal rights and obligations. The guidance was, the Committee said, not guidance at all “but to all intents and purposes a form of legislation” and referred to the practice of “camouflaging legislation as guidance”.116 The Leader of the House of Lords, the Rt. Hon Baroness Evans of Bowes Park, replied:117

“As you will be aware, it is 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. The purpose of guidance is to aid policy implementation by supplementing legal rules. This remains the Government’s policy and there is no intention to alter this approach.”

93.With regard to the Ivory Bill, the Government accepted that in almost all instances it was more appropriate for the legal requirements to be set out in delegated legislation rather than in guidance. With regard to the Mental Health Units (Use of Force) Bill, while the Government remained of the view that guidance was appropriate, they made a commitment to lay the guidance before Parliament.

94.We share the view of the Leader of the House “that guidance should not be used to circumvent the usual way of regulating a matter”. Mandatory guidance is such a circumvention. The very concept is a contradiction in terms and a power to make mandatory guidance will never be appropriate. Requirements which have legislative effect should always be expressed in legislative language, either in primary or secondary legislation, and subject to parliamentary oversight.

Requirements “to have regard to” guidance

95.Powers to issue guidance which is mandatory are relatively unusual. They are more commonly expressed as including a requirement on the person to whom the guidance is addressed “to have regard to” such guidance. Where the power includes a requirement “to have regard to” the guidance, it has been the Committee’s practice to recommend that the guidance should be subject to some form of parliamentary scrutiny. This is because, although there is an element of choice, a requirement “to have regard to” guidance carries with it an expectation that the guidance will be followed unless there are cogent reasons for not doing so.118 A typical example is the Committee’s report on the Financial Guidance and Claims Bill, in session 2017–19, where it concluded:

“Clause 5 allows the Secretary of State to issue guidance to the single financial guidance body. The body “must have regard to” the guidance. The guidance is not subject to any parliamentary scrutiny. There is a clear distinction between guidance that the recipient is free to disregard and guidance to which the recipient must have regard or must follow. People required by statute to have regard to guidance will normally be expected to follow the guidance unless they have cogent reasons for not doing so. Accordingly, we take the view that guidance issued under clause 5 should be subject to Parliamentary scrutiny, with the negative procedure providing an appropriate level of scrutiny.”119

A recent example is provided by the Armed Forces Bill, in the current session, where the Committee recommended, amongst other things, that a power to decide a key definition (of “relevant family members”) should be exercised through a regulation-making power (rather than just set out in published guidance) which should be subject to the affirmative procedure.120 The Committee noted that, on this occasion, the department had sought to justify the absence of a parliamentary procedure on the ground that the bill contained a statutory duty to consult — but concluded: “We do not find this explanation convincing. Consultation and parliamentary scrutiny are aimed at different things, and we do not consider that consultation can be viewed as a substitute for parliamentary scrutiny.”121 Also in the current session, the Committee reported on the Police, Crime, Sentencing and Courts Bill, drawing attention to a number of clauses which made provision for “must have regard to” guidance which would not be subject to any parliamentary scrutiny (and in some cases without even a requirement to be published). The Committee again said that it was unconvinced by the argument about consultation — “the fact that guidance would be produced after consultation with interested parties cannot be a reason for denying Parliament any scrutiny role” — and recommended that the guidance should be subject to parliamentary oversight.122

Guidance in relation to the determination of a financial penalty

96.The Committee raised the issue of guidance (called “guidelines” on this occasion) in relation to the determination of the amount of a financial penalty in its report on Parts 1 to 4 of the Digital Economy Bill in session 2016–17.123 The Committee cited an earlier report on the Energy Bill where it had recommended that the guidance should be subject to parliamentary scrutiny because it “would be highly influential in determining the amount of a substantial financial penalty”. The Committee went on to recommend, with regard to the Digital Economy Bill, that the guidelines should be laid before Parliament, with the affirmative procedure applying to an order bringing the initial guidelines into force and the negative to an order for the commencement of revised guidelines.124 The Committee raised a similar point in relation to the Tenant Fees Bill, in session 2017–19, with regard to a power to issue guidance to enforcement authorities. Following pre-legislative scrutiny, during which the Committee had raised the same issue in its submission to the House of Commons Housing, Communities and Local Government Committee, the Government responded by making a commitment to share the draft guidance with Parliament. The Committee remained dissatisfied and concluded that the commitment was “not sufficient to remove the need for the guidance to be made subject to parliamentary scrutiny.”125

97.When drafting a delegated powers memorandum for a bill which includes a power to issue guidance, departments must clearly explain and justify the character of the guidance. Where guidance is, in effect, legislative in character, it should be laid before Parliament and subject to parliamentary scrutiny.

Blurring of the distinction between delegated legislation and guidance

98.There is a further issue in relation to the use of guidance which has been raised by the SLSC in its parallel report and also by the Joint Committee on Statutory Instruments (JCSI) in its report, published in July 2021, entitled Rule of Law Themes from COVID-19 Regulations. It concerns the distinction between delegated legislation and guidance and, in particular, that:

• on occasion, the Government have appeared to impose stricter requirements through guidance accompanying regulations than imposed by the regulations themselves — the JCSI, for example, observed: “there appears to have been an unwillingness to distinguish between the wishes of Government expressed informally or in guidance and the requirements of the law”;126 and
• guidance has been used “to amplify legislation” — by which is meant that important elements of a policy change, such as key definitions, have been left to guidance rather than contained in regulations.

99.This issue has also been raised by the House of Lords Constitution Committee in its report, published in June 2021, entitled COVID-19 and the use and scrutiny of emergency powers,127 and by the House of Commons Justice Committee in its report, published in September 2021, entitled Covid-19 and the criminal law, in which the Committee warned of the “potentially damaging long-term consequences, including for the rule of law”.128 Sir Jonathan Jones concurred with the Justice Committee in his remarks to the Statute Law Society.129

100.We share the concern of the SLSC, the JCSI and others about inconsistencies between legislation and guidance, and the use of guidance to fill gaps in legislation. We support the SLSC in its recommendation that it is crucial that departments ensure a clear and appropriate distinction between legislation and guidance.

Other disguised legislative instruments

101.Examples of other disguised legislative instruments include the following:

• In a report on Parts 1 to 5 of the Housing and Planning Bill, in session 2015–16, the Committee drew attention to clause 67 which enabled the Secretary of State, by “determination”, to impose a levy on local housing authorities which own social housing stock in respect of the estimated market value of their interest in any “high value” housing which is likely to be become vacant in a given financial year. The exercise of the power would not be subject to parliamentary scrutiny. The Committee concluded: “… it is inappropriate to delegate to the Secretary of State a power to determine the amount of the payment to be made by local housing authorities without any form of Parliamentary scrutiny, particularly in view of the paucity of detail on the face of the Bill to guide how the power is to be exercised”. The Committee recommended: “… a determination under clause 67(1) should be made by statutory instrument laid before Parliament, and that: it should attract the negative procedure where it applies to a particular local authority, and the affirmative procedure where it applies to all local housing authorities or to all such authorities of a particular description.”130
• In a report on the Education and Adoption Bill, in session 2015–16, the Committee drew attention to a new section to be introduced into the Adoption and Children Act 2002 which would confer power on the Secretary of State to give “directions” to one or more local authorities in England requiring them to make arrangements for certain adoption related functions to be carried out on their behalf by one or more of those authorities, or by one or more other adoption agencies.131 The exercise of the power would not be subject to parliamentary scrutiny. The Committee did not accept the view of the Government that the power was purely administrative in character and recommended that it should be subject to parliamentary scrutiny under the negative procedure.
• In a report on the Children and Social Work Bill, in session 2016–17, the Committee drew attention to the power of the Secretary of State to determine “arrangements” in accordance with which a new statutory Child Safeguarding Practice Review Panel would be required to carry out its functions. The Committee considered that that power was a delegation of legislative power because the arrangements would “play a significant role in shaping what the Panel is required to do and how it is required to do it”.132 The Committee therefore recommended that the “arrangements” should be contained in a statutory instrument and subject to the affirmative procedure. (The Secretary of State was further able to influence how the Panel carried out its functions by requiring the Panel “to have regard to” guidance. We recommended that the guidance should also be subject to parliamentary scrutiny, with the negative procedure applying.)133
• In a report on Parts 5–7 of the Digital Economy Bill, in session 2016–17, the Committee drew attention to the power of “the relevant Minister” (the Secretary of State or the Minister for the Cabinet Office) to issue a “code of practice” about the disclosure of information and the use of information disclosed under certain provisions in the Bill. The delegated powers memorandum said that the code may “possibly” be legislative in nature. The Committee took the view that there was “no doubt” that it was legislative “because persons to whom the code applies must have regard to it”.134 The Committee recommended that the first code should be laid in draft before Parliament and subject to the affirmative procedure, with the draft negative procedure applying to any revisions of the code. The Committee made similar recommendations in relation to other codes of practice issued under the Bill, and also made a general statement: “we consider that Parliament should always be afforded the opportunity to scrutinise “quasi-legislation” in the form of statutory codes or guidance of this nature unless very good reasons exist why it is unnecessary or inappropriate to do so, which must be fully set out in the delegated powers memorandum”.135
• Brexit-related bills have provided perhaps the starkest examples of the delegation of legislative powers under the guise of another device. Because of its significance and the fact that — as a supply bill — it would not be amended in the House of Lords, the Committee reported, in session 2017–19, on the Taxation (Cross-Border Trade) Bill while it was still in the House of Commons.136 The Committee described it as involving “a massive transfer of power from the House of Commons to Ministers of the Crown”.137 The Committee also drew attention to what it called “the radical concept of making law by “public notice””. It said:

“The Bill relies heavily on the concept of making law by “public notice”. Paragraph 39 of the Treasury’s Delegated Powers Memorandum says that such notices will only make provision that is purely technical or administrative in nature. Nonetheless, clause 32(9) of the Bill allows anything that can be done under public notice to be done by regulations, implicitly acknowledging the importance of things done by public notice. For Ministers and others to make law by “public notice”, without any recourse to Parliament, is highly unusual and such provisions should attract strict surveillance by Parliament. The Statute of Proclamations 1539 gave proclamations the force of statute law. Although it was repealed in 1547 after the death of Henry VIII, it now enjoys a limited revival under the veil of Ministers and HMRC making law by “public notice.”138

The Committee concluded that “the creation of a generally applicable system for making determinations which are capable of affecting an individual’s legal position should ordinarily be dealt with by legislation, subject to scrutiny by Parliament, rather than by public notice without any such scrutiny”.139 The Government’s reply to the Committee’s observations did not assuage our concerns.140

• The Committee also reported on the European Union (Withdrawal) Bill while it was in the House of Commons. The Committee described it as giving Ministers “a range of powers, unique in peace-time, to override Acts of Parliament by statutory instrument, without in most cases the need for any prior debate in either House of Parliament”.141 One of the less prominent powers, contained in Schedule 5 to the Bill, concerned the statutory duty of the Queen’s Printer, the scope of which a minister was empowered to amend not by statutory instrument but simply by “direction”. The Committee said: “… to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent” and went on to refer to the Statute of Proclamations 1539 in words similar to those used in respect of the power to make law by public notice (see the Taxation (Cross-Border Trade) Bill above).
• In the following session, session 2019–21, the Committee reported on the Medicines and Medical Devices Bill, drawing attention to clauses in the Bill which provided that any disapplication of regulatory provisions may be subject to conditions set out in regulations, or to conditions not set out in legislation but in a “protocol” published by ministers. Citing examples including the Taxation (Cross-Border Trade) Bill and the European Union (Withdrawal) Bill, the Committee said: “On a number of occasions, we have drawn the attention of the House to provision in Bills which enables Minsters to make what are, in effect, legally enforceable rules under the radar of the parliamentary scrutiny that is afforded to primary and secondary legislation.”142 The Committee concluded that: “Allowing regulations to make the disapplication of legislation subject to conditions set out in a “protocol” is yet another example of “camouflaging legislation””.143
• In the current session, session 2021–22, the Committee reported on the Police, Crime, Sentencing and Courts Bill, drawing attention to a provision which appeared to enable specified authorities in a local government area to prepare a “strategy” which could have legislative effect but which the Secretary of State could decide, under powers conferred by the Bill, need not be published. The Committee concluded that this was insufficiently transparent and that powers under the Bill should require the Secretary of State to publish any actions contained in the strategy which had legislative effect.144

102.The number of occasions on which the Government have sought to acquire legislative powers under the guise of various devices not subject to parliamentary scrutiny is perhaps the most striking and disturbing of recent developments that have had the effect of shifting the balance of legislative power from Parliament to the executive. This finding is especially significant given that it has emerged so prominently at a time when Brexit and the pandemic have given so many other examples of a shift in power.

103.We have already referred to the statement by the Leader of the House that guidance should not be used to circumvent the usual way of regulating a matter. The same is also true of these other devices. Provision in bills giving ministers powers to make determinations, directions, arrangements or to issue codes of practice, public notices etc. — where they are in effect camouflaged legislation — is an unacceptable ploy and, as matter of principle, should not be sought by the Government in the bills they put before Parliament.

104.Furthermore, the multiplicity of disguised legislative instruments is confusing to Parliament and to the public, and does not, in our view, promote the good law principles of law that is clear and accessible.

105.In the absence of convincing reasons to the contrary, therefore, we recommend that they should not be used. Where the Government take the view that they have convincing reasons, then the use of these devices — and the level of scrutiny applied to them — should be clearly identified in the delegated powers memorandum and fully justified.

106.Where a department is uncertain as to whether use of one of these devices amounts to delegation of a legislative power, they should err on the side of caution and provide a clear explanation in the delegated powers memorandum about why the view has been taken that the power is administrative rather than legislative in character.

Legislative sub-delegation of power

107.An Act of Parliament may confer a legislative power which may, in turn, include provision for further delegation of legislative power. This is called legislative sub-delegation of power and means, in effect, that a minister may make a statutory instrument which includes a delegated power conferring on themselves or another person power to make what may be described as “tertiary legislation”. Legislative sub-delegation of power may be highly controversial in that, depending on the scope of the power set out in the primary legislation, it may enable an unelected body to amend and or even repeal an Act of Parliament.

108.The Committee has been critical about the scope and level of scrutiny applied to the exercise of a sub-delegation of power on several occasions. These include, for example, in session 2015–16: the Northern Ireland (Welfare Reform) Bill,145 the Immigration Bill,146 and the Housing and Planning Bill.147 In its report on the last of these, the Committee said:148

“Under subsection (3), the regulations may provide for the rent to be different for people with different incomes or for social housing in different areas (so that, for example, a high-income tenant in a council flat in Westminster may not have to pay the full market rent, while a tenant with the same income living in an identical flat in Liverpool may have to do so).

It appears that the regulations are not to contain any detail about how a local housing authority is to determine the rent. Instead, this is to be sub-delegated to guidance issued by the Secretary of State, to which the regulations may require local housing authorities to “have regard” and for which there will be no Parliamentary procedure (see subsection (4)).”

The Committee recommended that the power to sub-delegate should be removed from the Bill and replaced by a requirement to include such provision in regulations. The Government did not accept the recommendation.149

109.In its report on amendments to the Policing and Crime Bill, in session 2016–17, the Committee commented “with some surprise” that the period during which certain provision would remain in force could be specified “in or under” regulations, meaning that the period could be specified “either in the regulations themselves or in some other form provided for by the regulations”. The Committee concluded: “We would expect to be given a compelling justification for any such power of sub-delegation, why it is needed and how it is intended to be exercised.”150

110.More recently, the Committee criticised the sub-delegation of power in the European Union (Withdrawal) Bill where there was no requirement for the tertiary legislation to be subject to any parliamentary procedure nor even any requirement for it to be made by statutory instrument.151 This was despite the fact that the powers to make tertiary legislation was extremely wide-ranging: “It could, for example, be used to create new bodies with wide powers to legislate in one of the many areas currently governed by EU law, including aviation, banking, investment services, chemicals and medicines. The regulations might also contain only skeleton provisions in relation to a particular activity, leaving the detailed regime to be set out in tertiary legislation made not by Parliament, or even by Ministers, but by one of the new bodies so created.”152 The Committee recommended that tertiary legislation should be subject to the same parliamentary control and time limits applicable to secondary legislation.153 The Committee made a similar point in relation to the Taxation (Cross-border Trade) Bill.154

111.Tertiary legislation has as much legal force as any other form of law. Conferring a delegated power on ministers to sub-delegate power is potentially a more egregious erosion of democratic accountability than a simple delegation to a minster to make secondary legislation. Where the government seek a legislative sub-delegation of power in a bill, the power should be limited and specific, and its exercise, and the exercise of sub-delegated powers, should be subject to parliamentary scrutiny. Consideration should also be given to including a statutory duty to consult those affected by the exercise of a sub-delegated power. The delegated powers memorandum should provide a compelling justification for the power, why it is needed, how it is intended to be exercised and how it is to be constrained. The memorandum should also explain the choice of parliamentary scrutiny to be applied to the exercise of the sub-delegated power and, where it differs from the level of scrutiny applied to the secondary legislation containing the sub-delegated power, provide a compelling justification for the divergence.

112.Where, in turn, an instrument — made under powers delegated by primary legislation — delegates a power to either ministers themselves or another body to make tertiary legislation, the explanatory memorandum accompanying the instrument should state this and explain its scope and why it is needed. (This is a matter to which the SLSC refers in its parallel report.)

Made affirmatives

113.From time to time, departments argue in favour of the negative procedure on the grounds that powers need to be exercised urgently. The negative procedure (see paragraph 18 above) enables a minister to make and then lay an instrument. There is a convention — called the 21-day rule — that a negative instrument should not come into effect until at least 21 days after laying (including the day of laying). Instruments may however come into effect before the end of the 21-day period155 and, indeed, may come into effect before they are laid.156 The negative procedure therefore enables a minister to make law which can have immediate effect.

114.Sometimes the Committee has questioned why the “made affirmative” procedure should not apply instead. Under this procedure, ministers may make a statutory instrument which has immediate effect, but the instrument cannot remain in force unless approved by both Houses of Parliament. On occasion, the Committee has taken the view that the significance of an instrument is such that it warrants the more robust affirmative procedure but, recognising that the power to make it may need to be exercised as a matter of urgency, the made affirmative procedure would be appropriate. In a report, in session 2016–17, on the Pension Schemes Bill, the Committee said:

“We are … surprised that the memorandum does not acknowledge the existence of the made affirmative procedure, as a possible alternative to the negative procedure. Like the negative procedure, the made affirmative procedure allows for speed in that it can involve an instrument being made by the minister, and brought into force, before it is approved by Parliament, such approval being necessary, within a specified period of time, if the instrument is to remain in force”.157

In a report on the Northern Ireland (Executive Formation and Exercise of Functions) Bill, in session 2017–19, the Committee made a similar point, although on that occasion the delegated powers memorandum addressed the issue of the made affirmative procedure.158

115.In evidence to the SLSC, First Parliamentary Counsel explained that frequent use of the made affirmative procedure is a recent occurrence:159

“The made affirmative procedure is interesting. It is the procedure that has been used for a lot of the Covid regulations but, in fact, it is a very unusual procedure historically. The only legislation prior to this that I was aware of having this procedure was either civil contingencies legislation or a lot of indirect tax legislation where there is a concern about forestalling. … They are really the only places where we have encountered that procedure in the past. It was not the standard procedure that was used in run-of-the-mill primary legislation.”

116.The made affirmative procedure has also been a feature of Brexit legislation, with provision under the European Union (Withdrawal) Act 2018 and the European Union (Future Relationship) Act 2020 for ministers to use the made affirmative procedure “by reason of urgency”.

117.When drafting a delegated powers memorandum, departments should ensure that where the negative procedure is chosen on the ground that there is insufficient time for an affirmative, the memorandum explains why the “made affirmative” procedure is not applied”. The threshold between the negative and the affirmative procedure depends on the substance of the instrument and should not be determined by political expediency.

118.We recognise, however, that we should add a cautionary note about the made affirmative procedure. If it is appropriate that the made affirmative, rather than the negative, procedure should apply, that is an indication that the substance of the instrument is such that the more robust procedure is needed. The made affirmative procedure, in contrast to the draft procedure, however, enables a minister to bring into effect a substantial piece of legislation without the approval of Parliament and the new law may remain in effect for a significant period depending on the length of the statutory approval period set out in the parent Act. (Under the two Brexit Acts mentioned in paragraph 103, it is 28 days). Given that made affirmative instruments tend only to be used in emergencies, it may be that the need for the new law is short term and the Government could decide against scheduling an approval motion but, instead, allow the instrument to lapse — possibly following it with a further made affirmative instrument. In this case, substantial law is made and brought into effect without any debate or approval by Parliament. With a negative instrument, it would be open to any member of the House to object to it — by way of a prayer to annul — and seek an early debate.

119.We therefore recommend that, where an instrument is subject to the made affirmative procedure, the Government should undertake to schedule a debate on the instrument sooner rather than later.

120.We acknowledge that this will have implications for the ability of the SLSC and the JCSI to report on an instrument in time for the debate. We therefore further recommend that, where a debate is scheduled soon after a made affirmative has been laid, the formal approval motion should be deferred and taken later, either formally or as a second debate if either the SLSC or the JCSI raise matters of concern.160

Conclusion

121.As the examples in this chapter demonstrate, the long-standing issues of skeleton legislation and the use of Henry VIII powers remain matters of significant concern. Meanwhile new and complex issues have emerged. These developments cannot be explained simply as an aberration prompted by the recent “exceptional times”. We have made some proposals which are intended to address aspects of the issues identified. In the following chapter, however, we consider how more radical change can be brought about so that the relationship between Parliament and the executive can be re-set and a balance restored.

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