Chapter 6: Culture change within departments — changing the guidance

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. 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.

Additional principles

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.

Skeleton legislation

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,

• where it is a Henry VIII power, the memorandum should explain why the form of wording setting out the power has been adopted. The presumption in respect of Henry VIII powers, that they should be subject to the affirmative procedure, applies. Therefore, where they are not, the memorandum should explain why not. Where the power extends to the amendment of future Acts, the memorandum should explain clearly why it is thought such a power is necessary;
• where it is a non-Henry VIII power to include provision in a commencement order (and which will not therefore be subject to any parliamentary procedure), the Committee will expect such a power to be covered by the delegated powers memorandum and explained in the usual way.

Criminal offences

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.

PART 2: content of the delegated powers memorandum

Skeleton legislation declaration

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.

Powers to be covered by a memorandum

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.

Content of the explanatory paragraphs

18.After the italicised heading (described in paragraph 38 below), the explanatory paragraphs should:

• fully explain the purpose of the power; and
• describe why the matter that is the subject of the power has been left to delegated legislation rather than included in the bill; and
• fully explain the choice of parliamentary scrutiny procedure provided for each power; and, if there is no scrutiny, the justification for its absence.

Explaining the power

19.When explaining the power, take particular care to ensure that:

• the memorandum fully explains why the delegation is necessary and why the matter cannot be included in the bill. For example, if the reason is “we need flexibility”, explain the circumstances which create the need for flexibility; if it is asserted “it is a reserve power”, explain why a reserve power is needed and what events are likely to trigger its use in the future; or, if the reason is “we need to respond urgently”, explain the reason for, and degree of, urgency;

• the memorandum justifies the full extent of the power. The memorandum should set out how it is proposed that the power will be exercised. Where the scope of the power is wider than is necessary to achieve the purposes for which it is being taken, the memorandum should explain why it is not feasible or appropriate to limit the power to those purposes. The Committee will judge the power by reference to what could be done under it by the current or any future government and not only what the current government say they intend to use the power for. Avoid relying on reasons that amount, in effect, to “just in case”, or that justify the width of the power on the ground that a consultation has yet to take place or that the policy has not been finalised;
• where a power is delegated to a person or body other than a minister, the memorandum explains why the power has been conferred on that person or body; and
• the memorandum fully justifies any unusual or novel delegations of power, powers to define, or amend definitions of, key expressions used in the bill, or powers to interfere with vested rights or legal (for example, ordinary contractual) relationships.

Explaining the procedure

20.When explaining the procedure, take particular care to ensure that:

• the memorandum fully explains any de-hybridising provision — that is, provision which enables an order which would otherwise be hybrid because it would affect private interests to proceed as if it were not. Unless addressed in the memorandum, the Committee will invite the House to satisfy itself that private interests otherwise protected by the hybrid instruments procedure will be adequately protected under provision in the bill;
• unless a power is self-evidently concerned only with Money or Supply provision, the choice of a Commons-only procedure is fully explained. The Committee will wish to be satisfied that the subject matter of the power is such that the Lords would not expect to scrutinise the exercise of the power;
• in circumstances where it is proposed that there should be a removal, or relaxation, of parliamentary control, from the exercise of a power that presently requires it, the memorandum fully justifies the change;
• where the negative procedure is chosen on the grounds of urgency and that there is insufficient time for an affirmative, the memorandum explains why the “made affirmative” procedure is not applied; and
• where the chosen procedure is first-time affirmative, the memorandum fully explains why the negative procedure is thought to afford adequate scrutiny on subsequent exercises of the power, and on what that prediction is based, bearing in mind that the power will remain exercisable by future governments.

  21.The procedure chosen for each power should be explained in the memorandum in its own context and on its own merits. Avoid simple formulaic explanations such as “the provision is procedural”, “the regulations will be technical”, “the order will make administrative provision”.

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:

• it predates the Committee (that is, pre-1993); and
• it is in an Act arising out of a private Member’s bill; and
• the power cited was inserted by an amendment at a late stage in a bill’s passage. (This applies particularly in those cases where lack of time prevented the Committee from considering and reporting on the amendments.)

The Guide should include:

• The statement of principles of parliamentary democracy, with a requirement that it should underpin to the fullest extent possible decisions about proposed delegations of legislative power. (Chapter 5, Box 1);
• The DPRRC’s guidance to departments, set out in full. (Chapter 5, paragraph 148; Chapter 6, Box 3; Appendix 3); and
• The Committee’s conclusions in relation to the use of skeleton legislation (Chapter 4, paragraphs 66 and 67) and Henry VIII powers. (Chapter 4, paras 83 and 84)

• The Committee’s conclusions in relation to the delegation of power to issue guidance and other instruments with legislative effect, namely that:
  • “mandatory guidance” is a contradiction in terms and can never be justified; and
  • guidance which is legislative in character should be laid before Parliament and subject to parliamentary scrutiny.
  • disguised legislative instruments should not be used in the absence of convincing reasons to the contrary, and if used they – and the level of scrutiny applied to them – must be fully justified. (Chapter 4, paras 94, 103, 105 and 106)
• The Committee’s conclusion that a clear and appropriate distinction should be drawn between legislation and guidance. (Chapter 4, para 100)
• The Committee’s conclusions in relation to legislative sub-delegation of power, namely that:
  • where such a power is included in a bill, it should be limited and specific, and fully justified;
  • the exercise of the power and any sub-delegated power should be subject to parliamentary scrutiny; and
  • where the level of parliamentary scrutiny to be applied to the exercise of the sub-delegated power differs from the level of scrutiny applied to the secondary legislation containing the sub-delegated power, there should be a compelling justification for the divergence. (Chapter 4, para 112)
• A statement deprecating the use of delegated powers as a substitute for imperfect policy development. (Chapter 5, para 129)
• A refreshed commitment that publication of a bill in draft should be the “default position” and that draft bills should be submitted to parliamentary pre-legislative scrutiny where possible. (Chapter 5, para 135)
• A reinstatement of a presumption that departments will accept most, if not all, of the DPRRC’s recommendations and, where any recommendation is not accepted, a requirement to provide a full justification. (Chapter 5, para 146)
• A refreshed commitment to undertaking that the government response to a DPRRC report will be available before committee stage of a bill or, if not possible, the minister should explain to the DPRRC why not and when the response will be provided. (Chapter 5, para 156).