164.In the previous chapter (paragraphs 147 and 148), we refer to updating the Committee’s guidance to departments. The introduction and Parts 1 and 2 of the revised guidance are set out in Box 2 below, and Part 3, which contains practical information, is set out in Appendix 4 to this report. The complete guidance will be put on the Committee’s webpages.
1.The Delegated Powers and Regulatory Reform Committee (DPRRC) has two purposes: (1) to examine delegated legislative powers in bills and their associated parliamentary scrutiny procedures, and (2) to scrutinise certain instruments subject to strengthened scrutiny procedures. This guidance concerns the first of these and, in particular, the preparation of the delegated powers memorandum (“the memorandum”). The relevant part of the Committee’s terms of reference is set out below.
Terms of reference
“… to report whether the provisions of any bill inappropriately delegate legislative power, or whether they subject the exercise of legislative power to an inappropriate degree of parliamentary scrutiny …”.
2.This guidance replaces the Committee’s guidance published in 2014 and has been informed by the Committee’s report, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive, published in November 2021 (“the Report”) (12th Report, Session 2021–22, HL Paper 106). It is in three parts:
3.The decision to seek a delegation of legislative power should be founded on the fundamental principles of parliamentary democracy set out below.
Statement of principles of parliamentary democracy
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.
4.When the Committee was first set up, it concluded that it was not possible to set out a list of criteria which would give precision to the test of appropriateness. Instead, it was decided that the merits of the proposed use of a delegated power had to be considered on a case-by-case basis. Whilst the Committee continues to consider each delegation on its merits, experience has enabled the Committee to develop some principles which provide the starting point for its consideration of delegated powers.
Threshold between primary and secondary legislation
5.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.
Henry VIII powers
6.Every Henry VIII power — that is, a delegated power which enables a minister, by delegated legislation, to amend, repeal or otherwise alter the effect of an Act of Parliament — including where the power is expressed in terms of “modification”, should be clearly identified in the memorandum.
7.The Committee recognises that the appropriate level of parliamentary scrutiny for such powers will not be the affirmative procedure in all cases. The Committee, however, applies a presumption that the affirmative procedure will apply and so where a Henry VIII power is subject to a scrutiny procedure other than affirmative, a full explanation giving the reasons for choosing that procedure should be provided in the memorandum.
8.A bill is, in effect, a skeleton bill or a bill contains skeleton clauses where the provision on the face of the bill is so insubstantial that the real operation of the Act, or sections of an Act, would be entirely by the regulations or orders made under it.
9.Skeleton legislation should only be used in the most exceptional circumstances. Where the government decide that such exceptional circumstances apply, the delegated powers memorandum should make an
explicit declaration (“a skeleton legislation 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.
Disguised legislative instruments
10.Bills sometimes confer powers to make different types of legislative instruments — referred to in the Report as “disguised legislative instruments” — such as “must have regard to” guidance, directions, and codes of practice. The multiplicity of disguised legislative instruments is confusing to Parliament and to the public and does not promote the good law principles of law that is clear and accessible. In the absence of convincing reasons to the contrary, these devices 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. Mandatory guidance is a contradiction in terms and can never be justified.
Power to make incidental, consequential or similar provision
11.Regarding any power to make incidental, consequential or similar provision,
12.Where a bill creates a criminal offence with provision for the penalty to be set by delegated legislation, the Committee would expect, save in exceptional circumstances, the maximum penalty on conviction to be included on the face of the bill. Therefore, where this is not the case, the memorandum should explain why not, and at the very least the Committee would expect the instrument to be subject to affirmative procedure. Similarly, where the ingredients of a criminal offence are to be set by delegated legislation, the Committee would expect a compelling justification.
Legislative sub-delegation of power
13.Where a bill contains a legislative sub-delegation of power, the power should be limited and specific, and its exercise subject to parliamentary scrutiny. 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.
Ministerial discretion on choice of parliamentary procedure
14.The Committee deprecates provisions that give ministers a choice between parliamentary scrutiny procedures.
15.If the bill is, in effect, a skeleton bill or contains skeleton clauses, a skeleton legislation declaration should be made at the start of the memorandum, with 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.
16.The memorandum should identify every provision for delegated legislation in the bill.
17.Powers to issue guidance, give directions, issue codes of practice, etc. can also be delegated legislative powers (see paragraph 9 above). To the extent that they are, the memorandum should cover them as well. Where either there is doubt about whether a power is legislative or the view is taken that a power is not legislative, the memorandum should explain fully why there is doubt or why that view is taken.
18.After the italicised heading (described in paragraph 38 below), the explanatory paragraphs should:
Explaining the power
19.When explaining the power, take particular care to ensure that:
Explaining the procedure
20.When explaining the procedure, take particular care to ensure that:
Use of precedent
22.Where there is a precedent for a delegation or the choice of parliamentary procedure, the memorandum should indicate this, identify the precedent, and explain its relevance to the bill. The Committee will take any precedent into account in its examination of a bill although will not necessarily find a provision appropriate based on precedent alone. If the power is a re-enactment with modifications of an existing power, the memorandum should say so and explain the differences.
23.A precedent will hold less weight if:
165.The Guide is an influential document. It tells bill teams in detail how legislation is made, including its navigation through Parliament. For this reason, we have indicated at various points in this report areas where we believe the Guide should be amended or strengthened. The Guide is drafted by officials in the PBL secretariat and issued in the name of the Cabinet Secretary. The Lord President when asked about the Guide said that, as chair of the PBL Committee, he would be as helpful as he could with any suggestions made by the Committee for its revision. In the light of that positive response, we are optimistic that the changes suggested in this report will be reflected in a revised Guide. To assist those drafting the revisions, we set out in Box 3 below a summary of the Committee’s proposed revisions based on the conclusions in this report.
The Guide should include:
166.The Guide is currently a practical document to assist bill teams. With the addition of the new material, we believe that it has a broader purpose: to remind departments, both ministers and officials and also the PBL Committee, of the constitutional principles underlying the relationship between Parliament and the executive. Adoption and promulgation of a revised Guide will therefore be a powerful mechanism, we believe, for re-setting that relationship. We look forward to its introduction.
205 See Chapt 2, para 29 above.