122.Significant concerns about the delegation of legislative powers have persisted for decades. They have ebbed and flowed but not markedly diminished. In this chapter, we consider what might be done to bring about longer-term change. We make recommendations in three areas:
In the next chapter, we focus on two fundamentally important guidance documents, namely the Cabinet Office Guide to Making Legislation and the Committee’s guidance to departments. We set out our revised guidance, updating the current version published in 2014, and make recommendations about how the Cabinet Office should amend its Guide.
123.Maintaining the appropriate boundary between primary and delegated legislation is inextricably interlinked with protecting the integrity of Parliament; and the integrity of Parliament is based on the fundamental principles of parliamentary democracy, namely, parliamentary sovereignty, the rule of law and accountability of the executive to Parliament.
124.The Cabinet Office Guide to Making Legislation (“the Guide”) provides bill teams with instructions about what they should do when they wish to include a delegated power in a bill. It states that all delegated powers, and the level of parliamentary scrutiny associated with them, should be justified because Parliament and, in particular, the DPRRC will scrutinise them closely. The minister, the Guide states, should be alerted to any proposed delegated powers which “may prove controversial”.
125.There is a great deal of useful material in the Guide. It is however a functional document, and, in our view, it lacks any sense of the fundamental principles underlying why Parliament and the DPRRC scrutinise delegated powers so closely. The Lord President, in oral evidence, reinforced this impression that the Government consider the inclusion of delegated powers as a political and practical decision, rather than a matter of principle:
“As I have pointed out to Ministers, if they want to take a power, they very often have to have the argument twice and spend the political capital twice. They first have the argument about what they may use the power for when it is going though either House. Then, when they bring forward the statutory instrument, they have the argument all over again. Both politically and timewise, the argument for detailed Bills is strong.”
126.It appears that bill teams are, in effect, being encouraged to regard the inclusion of delegated powers, and the preparation of a delegated powers memorandum, as merely a political or practical matter. The absence in the Guide of any explicit statement of the underlying principles is, in our view, a fundamental flaw. We therefore recommend that the Guide should be amended to include a statement of principles which should underpin any decision by ministers about whether a bill should include delegated legislative powers. A proposed statement of principles is set out in Box 1 below.
1.Parliamentary democracy is founded on principles of parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament.
2.Sometimes it is appropriate for Parliament to delegate legislative powers to a minister or other body so that further legislative provision by delegated legislation can be made after Royal Assent.
3.Where any provision in a bill delegates legislative powers, departments must satisfy themselves that the delegation is framed in a way that takes into account to the fullest extent possible the principles of parliamentary democracy.
4.Departments may be asked to explain to Parliament how the principles of parliamentary democracy have been taken into account when seeking a delegation of legislative power. In the case of exceptional or controversial powers, this explanation should be set out in the delegated powers memorandum accompanying a bill.
5.Any explanation should be complete and not formulaic.
127.In correspondence about skeleton legislation (see paragraph 61 above), the Lord President said: “… Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development.” We found these words reassuring. We also welcome the comments made by the Lord President in oral evidence that the Parliamentary Business and Legislation (PBL) Committee of the Cabinet, which has oversight of the Government’s legislative programme and which the Lord President chairs, works closely with departments “from the outset” and that meetings with ministers promoting bills take place early in the process of bill development. The Lord President also described how Parliamentary Counsel have made clear to departments the need for early development of policy because, he said, “you need the policy set out so that you can be clear as to whether you need a power” — “a lack of policy development just leads, in the end, to a lack of clarity all the way thorough”. Sir Jonathan Jones made a sharper comment about the consequences of poor policy development: “Policy developed at speed and finalised at the last minute, with minimal consultation even inside government, let alone outside, will tend to be worse policy — less well thought-through, more inconsistent, more prone to unintended gaps and anomalies”.
128.The Lord President said that, on occasion, the PBL Committee would push back bills if they needed more detail on the face of the legislation. But he also said that sometimes bills would proceed with an expectation of planned amendments “to add flesh to the bill when it is making its progress through either House”, suggesting that sometimes there is a mismatch between the demands of the parliamentary legislative timetable and the process of policy and bill development.
129.We welcome the Lord President’s assertion that bills should be supported by well-developed policies and also the steps that he has taken to ensure that the PBL Committee reinforces this message in departments. We have no doubt however that, on occasion, the processes of policy development and bill drafting, and the parliamentary legislative timetable are misaligned. As a result, powers are included in bills which are, in effect, “a tool to cover imperfect policy development”. This is unacceptable, and we look to the Government to undertake the systemic reforms necessary to prevent its happening.
130.Pre-legislative scrutiny may take the form of formal parliamentary pre-legislative scrutiny by a select committee or publication in draft allowing for informal scrutiny by parliamentarians and the public.
131.Chapter 22 of the Guide states:
“22.1 The default position should be that bills will be published in draft prior to formal introduction. There should be a good reason not to publish the bill in draft. The Government is committed to publishing more of its bills in draft before they are formally introduced to Parliament, and to submitting them to a parliamentary committee for parliamentary pre-legislative scrutiny where possible. …
22.3 The Chair of PBL Committee will ask Ministers to consider whether bills for which they are bidding for legislative time are suitable for publication in draft, as well as inviting bids for bills specifically intended for publication in draft in the first instance.
22.4 There are a number of reasons why publication in draft for pre-legislative scrutiny is desirable. It allows thorough consultation on the bill while it is still in a more easily amendable form, and makes it easier to ensure that both potential parliamentary objections and stakeholder views are elicited. This can assist the passage of the bill when it is introduced to parliament at a later stage and increases scrutiny of government legislation.”
132.In a report published in 2004, the Constitution Committee recommended that it should be the norm for bills to be published in draft. The recommendation was later endorsed by the House of Lords Leader’s Group on Working Practices in 2011. In 2017, the Constitution Committee raised the issue again and stated: “At present, pre-legislative scrutiny is seen as an optional extra to the legislative process: it may or may not take place and it does so in relative isolation to the other stages of scrutiny which legislation undergoes. Pre-legislative scrutiny should be considered an integral part of the wider legislative process.”
133.The DPRRC has welcomed the opportunity to contribute to pre-legislative scrutiny of draft bills and shares the view of the Constitution Committee that such scrutiny “enhances the quality of scrutiny during the legislative process itself”. The DPRRC has submitted its views on draft bills to both joint pre-legislative scrutiny committees and to Commons-only inquiries. In 2017, for example, the Committee, in its report on the Space Industry Bill (following pre-legislative scrutiny by the House of Commons Science and Technology Committee), welcomed “the fact that the Government have incorporated so many of our recommendations in the new Space Industry Bill”. Recently, the Committee made a submission to the House of Commons Business, Energy and Industrial Strategy (BEIS) Committee inquiry into the draft Downstream Oil Resilience Bill. The report of the BEIS Committee on the draft Bill included several references to the DPRRC’s submission and expressed an expectation that the Government would respond not only to the conclusions and recommendations of the BEIS Committee but also to the points raised in the DPRRC’s submission.
134.The Committee has also commented on what may be regarded as “quasi-pre-legislative scrutiny” — circumstances where a Bill has been considered by the Committee in one session and then the Bill, having failed to complete its passage in time, is re-introduced in the next session in a different form. A recent positive example of this was the Agriculture Bill. When first introduced in session 2017–19, we said that we were “dismayed at the Government’s approach to delegated powers” in the Bill. On its re-introduction in session 2019–21, we said: “This new version of the Agriculture Bill has benefited substantially from the Committee’s scrutiny of the original Bill. In reporting on the original Bill, the Committee has undertaken what may be regarded as the equivalent of pre-legislative scrutiny and, as we have said at several points in this report, we welcome the Government’s positive response to a number of the Committee’s earlier recommendations.”
135.We endorse the Constitution Committee’s view that pre-legislative scrutiny of bills should be regarded as an integral part of the wider legislative process. The Guide states that publication of a bill in draft is the “default position” and that draft bills should be submitted to parliamentary pre-legislative scrutiny where possible. We recommend that the Government should refresh their commitment to publishing more bills in draft.
136.The function of the Committee is to assist Parliament in achieving an appropriate balance of power between the Parliament and the executive by advising on an appropriate balance between primary and delegated legislation. The Committee has been working in support of this aim since its establishment in the early 1990s. The justification for the sessional re-appointment of the Committee remains undiminished.
137.Arguably, this is disappointing — because the success of the Committee in schooling successive governments towards adopting the appropriate balance between primary and delegated legislation should, we may hope, be reflected in a decrease, over time, in the number of substantive reports published by the Committee and the number of recommendations for change contained in them. But that would, in our view, be a simplistic analysis and would not take into account the broader political context and the practical realities of the legislative process. That said, we have already made recommendations about how change may be brought about by changes within government. We now turn to what more the DPRRC can do.
138.The Committee exercises influence in broadly two ways: (1) the pre-emptive impact — that is, the internal-discipline effect on departments, knowing that the Committee will be scrutinising their bills and, where appropriate, reporting on them; and (2) the response of the House and of the government to the Committee’s recommendations.
139.During the debate, on 3 June 1992, moved by Earl Jellicoe (see paragraph 42 above), Earl Russell said “ … perhaps it is not too much to hope that the existence of such a committee might, on some occasions, make Ministers refrain from using such a clause when they otherwise might have done so”. In its first report, in 1993, the Scrutiny of Delegated Powers Committee echoed that sentiment: “We accept that our primary aim is to inform debate with a view to saving time on the floor of the House. But we also believe that the existence of a new process for the scrutiny of delegated powers will serve to prevent inappropriate powers from appearing in bills.” The Lord President, in oral evidence, also referred to this pre-emptive impact, suggesting that the PBL Committee, when considering proposed bills, keeps in mind what it believes the Committee is looking for: the Committee’s recommendations, he said, “are taken into account before the bill is published” because the PBL Committee “knows the angle” the Committee is “going to be coming from. … What the DPRRC is going to say is built into the process of bill-making”. The Committee, he said, had a “very profound influence … on the structure of the bill in the first place”.
140.This pre-emptive impact is reinforced by the requirement on departments to provide a delegated powers memorandum for each government bill introduced into Parliament. The principal purpose of a memorandum is for the government to explain and justify the delegated powers in a bill. In our 2014 report on the quality of delegated powers memoranda, we referred to the requirement to provide a memorandum as having a salutary effect on a department’s selection of powers and choice of scrutiny procedure and we quoted Richard Heaton, at that time First Parliamentary Counsel and Permanent Secretary at the Cabinet Office. He said that the establishment of the Committee had created a culture in departments where “people think quite carefully … about delegated powers” which contrasted with the period before the Committee existed when “more likely than not when you were thinking about how to wrap up the last clauses of the bill you would ask counsel to put something that broadly speaking allowed you to do what you liked because it was convenient”. Mr Heaton also said that the fact that the memorandum went before the PBL Committee similarly had “a good internal-discipline effect”.
141.The Guide also makes this point: “DPRRC’s recommendations must be considered seriously to see whether it is possible to accept them … There is, therefore, benefit in departments anticipating the views of the DPRRC when drafting the bill to avoid the need for amendments.”
142.We have no doubt that scrutiny by the DPRRC has a pre-emptive effect, and we have noted the evidence of the Lord President that that effect has been “profound”. It cannot however be measured, and earlier chapters of this report have caused us to have some reservations about the Lord President’s assessment of the extent of the Committee’s impact.
143.Firmer evidence of the impact of the Committee is provided by how often its recommendations are accepted.
144.Several years ago, an assumption prevailed that most, if not all, the Committee’s recommendations would be accepted by the government. In 2016, during its inquiry into the Strathclyde Review, the Rt Hon. Earl Howe, then Deputy Leader of the House of Lords, said in evidence to the SLSC: “Governments, as we know, have traditionally implemented the recommendations contained in DPRRC’s reports.” The Strathclyde Review, itself, made a similar point: “The Committee’s recommendations are usually accepted by the Government.” With this in mind, the DPRRC — at that time — undertook an analysis of the Government response rate during session 2015–16. It found that the acceptance rate did not appear to be as high as was being suggested. In evidence to the Constitution Committee, quoted in its 2018 report, the then Chair of the DPRRC, Baroness Fookes, estimated that about 66% of the Committee’s recommendations were accepted. Analysis of session 2019–21, indicated an acceptance rate of about 30%. For session 2021–22, we have received responses from the Government on 10 of our 22 recommendations, of which six have been accepted (60%).
145.This shift away from an assumption that the Committee’s recommendations will usually be accepted by the government is reflected in a revision to the Guide between July 2015 and July 2017. In 2015, it stated that “it is usual for the Government to accept most, if not all, of the DPRRC’s recommendations”. In the current, 2017 edition, those words do not appear. It states: “The Government can expect to be challenged on its response to any of the DPRRC’s recommendations”, and “DPRRC’s recommendations must be considered seriously to see whether it is possible to accept them”.
146.This change in the Guide is disappointing. It appears to suggest a cultural shift in the Government’s approach to the Committee’s recommendations. We urge the Government to amend the Guide so that it introduces an expectation that the Government will accept most, if not all, of the DPRRC’s recommendations and, where any recommendation is not accepted, a full justification should be provided for not doing so in the Government’s response.
147.In our 2014 report on the quality of delegated powers memoranda, the Committee made recommendations intended to remedy what was perceived to be an inconsistency in the quality of memoranda. Amongst other things, revised guidance to departments was published as an appendix to the report which built on previous guidance. A further revision of the guidance is now set out in the next chapter of this report.
148.Reference is made to the Committee’s guidance in the Cabinet Office Guide and departments are told that they should consider it carefully. We recommend that the Committee’s new guidance should be set out in full in the Cabinet Office Guide.
149.Also in our 2014 report, we said that we would comment on memoranda in our reports on bills. We have done this, both to commend and to criticise. Recent commendations include memoranda accompanying two very substantial bills: the Financial Services Bill and the Environment Bill. In our report on the Medicines and Medical Devices Bill, however, we said:
“The Department of Health and Social Care has provided a Delegated Powers Memorandum (“the Memorandum”) which runs to some 66 pages. It has also published six illustrative statutory instruments. We are grateful for the detail provided but we have concerns about the approach taken in the Memorandum. This Bill gives Ministers very broad powers indeed but, instead of acknowledging this and seeking to provide a full justification for it, the Memorandum—
… In future, where a Bill confers broad powers, we will expect a more transparent approach in which the department acknowledges the breadth of the powers and seeks to fully justify it.”
150.We will continue our practice of commenting on the quality of delegated powers memoranda, in part to assist departments in preparing memoranda for future bills.
151.It is the practice of the Committee to publish its reports after second reading and before the committee stage. This gives members of the House and the government time to consider whether to table amendments at committee stage in response to Committee recommendations. And, for reasons connected with the length of minimum intervals between stages of a bill, the practice makes practical sense. That said, as the Committee’s first report in 1993 noted, on occasion it would be “very useful” if the Committee were to report before second reading. Sometimes the Committee has done this, the most recent example being, in the current session, the Environment Bill, where the Committee was able to publish a report on the day of second reading in the Lords. (We have also proposed, in paragraph 69 above, that — exceptionally — the Committee might publish a short report before second reading where the Committee has taken the view that a bill was a skeleton bill.)
152.The Committee went one step further in relation to several Brexit-related bills and reported on them while they were still in the Commons. This included the European Union (Withdrawal) Bill on which we reported in September 2017, while in the House of Commons, and then again in January 2018 following its introduction in the House of Lords. We explained our reasons for taking the exceptional approach in the earlier report:
“Normally we report on a Bill in sufficient time to allow Members of the House of Lords to consider it before the Bill’s committee stage in the House of Lords. This Bill is of exceptional constitutional significance. Central to the Bill is the balance of power between Parliament and Government, including the propriety of giving Ministers such unprecedented powers to override Acts of Parliament subject, in the great majority of cases, to no scrutiny whatsoever on the floor of either House. Accordingly, we have written this report in sufficient time for Members of the House of Commons to consider it at committee stage in their House. In due course, we will also report on the Bill in the form in which it comes to this House.”
153.In its 2018 report, the Constitution Committee welcomed this departure from usual practice. It acknowledged however that the Committee was “unlikely to wish to report as a matter of routine on bills while they are in the Commons”.
154.It will remain our usual practice to report on bills after second reading and before committee stage in the House of Lords. Exceptionally, however, where appropriate and where timing permits, the Committee may report on a bill while it is in the House of Commons or before second reading in the House of Lords.
155.The Guide indicates that a minister should respond to the Committee’s recommendations and that he or she should do so before committee stage in the House of Lords. The Constitution Committee, in its 2018 report, said: “Ministers should follow [DPRRC] 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”. Given that timing may be tight, the Guide urges departments to consider their response to the DPRRC “promptly”. We agree that timing is often tight and that, as a result, not infrequently, a response is received late.
156.We recommend that the Government should refresh their commitment in the Cabinet Office Guide that a written response to Committee reports should be provided before committee stage. Where a written response cannot be provided in time, a written explanation should be given to the Committee before committee stage which should include an indication of when a response will be provided.
157.In our 2014 report, we referred to a suggestion that one way to ensure the quality of delegated powers memoranda would be for the Committee to delay consideration of a bill until any formal pre-report questions requesting clarification, elucidation and expansion of a memorandum had been answered, either by written answer or by an oral evidence session with the minister. We pointed out that, without a “scrutiny reserve”, requiring bill proceedings to await publication of the Committee’s findings, there would be little opportunity, if any, for the Committee to make pre-report requests. At that time, we did not recommend the introduction of a scrutiny reserve.
158.Soon after, however, in its response to the Strathclyde Review, the Committee stated:
“In 2014, we noted that the proposal to call in Ministers had practical difficulties to do with timing: namely that the Committee endeavours to report between second reading and committee stage and that, given the recommended minimum interval of 14 days between those two stages, there would be no time to hold an evidence session. We noted that the Committee has no “scrutiny reserve”, by which we mean that there is no requirement under Standing Orders of the House for the Government to delay scheduling committee stage until the Committee has reported. Therefore, the Government would not have to wait for the Committee to report before proceeding with the bill. We concluded against proposing a “scrutiny reserve” on the grounds that we would wait to see if our recommendations in the Report had taken effect. We also said however that “should the expected improvements not result … , then it is, of course, open to the Committee to re-visit these, or any other, proposals for procedural change.” During this session (up to 15 March), we have so far commented adversely on 17 delegated powers memoranda.
We now take the view, for reasons to do with both the extent of delegations in bills as well as the quality of delegated powers memoranda, that there are grounds for re-visiting these proposals for procedural change. In suggesting the introduction of the “scrutiny reserve”, we would not expect the progress of bills to be routinely delayed while the Committee completed its work. We would continue to observe our practice of respecting the agreed scheduling of business and ensure that we reported in accordance with it. The very existence of the “scrutiny reserve” would, however, act as a salutary reminder to Government departments of the importance of proper preparation of bills and memoranda.”
159.We remain of the view that the existence of a “scrutiny reserve” would act as a powerful reminder to departments of the need to consider the delegations of power in a bill, and their justification, with care.
160.We invite the Procedure Committee and the House to consider amending Standing Orders to allow the DPRRC a “scrutiny reserve” so that, in cases where a bill includes most exceptionally wide delegations for which there has been no satisfactory justification or the Committee takes the view that the bill contained skeleton provision (see paragraph 70 above), time will be available for the Committee to request a minister to provide further justification. Under the “scrutiny reserve” the committee stage could not proceed until the Committee had reported to the House.
161.As we explained at the beginning of this report (see paragraph 8), the Committee will resume the practice of publishing an end of session report. We are aware that the SLSC publishes an end of session report about the work of that Committee, highlighting concerns about issues relating to delegated legislation, illustrated by reference to specific instruments and the performance of specific departments. It provides an opportunity for the SLSC to consider, and draw attention to, overarching issues arising from its week in, week out scrutiny of statutory and other instruments. We commend the SLSC for this valuable work.
162.We will resume the Committee’s previous practice of publishing an end of session report to the House, raising concerns about issues relating to the delegation of powers and making specific comments about the quality of delegated powers memoranda and government responses. In preparing the report, we may also invite oral evidence from the Leaders of the two Houses.
163.We see these end of session reports, along with reports from other committees such as the SLSC, JCSI and the Constitution Committee, as an important resource which will inform, or prompt, regular debates in the House about the quality of legislation and the explanatory materials submitted in support of it, and about the wider issues raised in this report.
161 Cabinet Office, Guide to making legislation (July 2017), p 138: [accessed 5 November 2021].
163 For further explanation, see para 21 of the revised Committee guidance to departments set out in Chapter 6 of this report.
166 Sir Jonathan Jones KCB QC (Hon), Speech on The Rule of Law and Subordinate Legislation for the Statute Law Society (edited) (29 September 2021): [accessed 5 November 2021], p 5.
167 Letter from the Leader of the House of Commons to the Chair of SLSC, 19 October 2020: .
168 Cabinet Office, Guide to making legislation (July 2017), p 163: [accessed 5 November 2021].
169 Constitution Committee, Parliament and the Legislative Process: The Government’s Response, , Session 2004–05 (HL Paper 114).
170 House of Lords Leader’s Group on Working Practices, , Session 2010–12 (HL Paper 136), para 84.
171 Constitution Committee, , Session 2017–19 (HL Paper 27), para 87.
172 Ibid., para 69.
173 , Session 2017–19 (HL Paper 10), para 28.
174 House of Commons Business, Energy and Industrial Strategy Committee, Pre-legislative scrutiny: draft Downstream Oil Resilience Bill, , Session 2021–22 (HC 820), para 4.
175 , Session 2017–19 (HL Paper 194), para 4.
176 , Session 2019–21 (HL Paper 69), para 21.
177 HL Debs, 3 June 1992, .
178 Para 32.
180 Now Sir Richard Heaton.
181 , Special Report, Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), p 6, para 5.
182 Cabinet Office, Guide to Making Legislation (July 2017), para 16.17: [accessed 5 November 2021].
183 , Special Report, Response to the Strathclyde Review, Session 2015–16 (HL Paper 119), p 12, para 24.
184 Ibid., para 26.
185 , Session 2017–19 (HL Paper 225), p 12, para 30.
186 Cabinet Office, Guide to Making Legislation (July 2015), para 16.16.
187 Cabinet Office, Guide to Making Legislation (July 2017), paras 16.16 and 16.17.
188 Ibid., p 138.
189 , Session 2019–21 (HL Paper 215).
190 , Session 2021–22 (HL Paper 16), para 6.
191 , Session 2019–21 (HL Paper 109).
192 Scrutiny of Delegated Powers Committee, 1st Report, Session 1992–93 (HL Paper 57), para 20.
193 , Session 2017–19 (HL Paper 22).
194 , Session 2017–19 (HL Paper 73).
195 , Session 2017–19 (HL Paper 22), p 4, para 6.
196 , Session 2017–19, HL Paper 225, p 13, para 35.
197 Cabinet Office, Guide to Making Legislation (June 2017), p 142, para 16.16.
198 , Session 2017–19, HL Paper 225, p 13, para 33.
199 Cabinet Office, Guide to Making Legislation (June 2017), p 142, para 16.16.
200 The Joint Committee on Statutory Instruments has a “scrutiny reserve”: no approval motion for an affirmative instrument can be moved in the House of Lords until that Committee has reported on the instrument (House of Lords Public Business Standing Orders 72(1) (a)).
201 , Special Report, Quality of Delegated Powers Memoranda, Session 2014–15 (HL Paper 39), p 16, paras 43–44.
202 , Special Report, Response to the Strathclyde Review, Session 2015–16 (HL Paper 119), p 20, paras 45–46.