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Fifteenth Report Contents

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Foreword

1.This report sets out the Committee’s recommendations in relation to a private members’ Bill. It has long been, and remains, the Committee’s approach to apply the same exacting standards of scrutiny to all bills, whether a government bill or a private member’s bill. We acknowledge however that those members of the House who sponsor private members’ bills, unlike ministers, do not have the support of departmental officials and Parliamentary Counsel in the preparation of their bills. Our comments on private members’ bills are framed in the light of that understanding.

Health and Care Bill

2.On the day we published Democracy Denied? The urgent need to rebalance power between Parliament and the Executive,1 this Bill was brought from the House of Commons.

General comments on the Bill

3.The Bill currently runs to 244 pages and contains 155 substantive provisions (139 clauses, 16 Schedules). It contains 156 delegated powers. The Bill therefore averages more than one delegated power per provision. The Department for Health and Social Care (DHSC) has provided a delegated powers memorandum (“the Memorandum”) that runs to 178 pages.

4.At paragraph 102 of Democracy Denied?, we said that 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. The Health and Care Bill is a clear and disturbing illustration of how much disguised legislation a Bill can contain and offends against the democratic principles of parliamentary scrutiny.

5.The Bill allows legislative provision to be made by:

• Affirmative regulations (21)
• Negative regulations (42)
• Orders in Council
• Other Orders
• Schemes
• Rules
• Licence conditions
• Directions (46)
• Guidance (17)
• Publishing a document.2

6.Of these 156 delegated powers, more than half (79) are subject to no parliamentary procedure. And of the 10 species of delegated power identified above, only the first three are subject to any parliamentary procedure. A Bill where fewer than 13% of the delegated powers require the affirmative resolution procedure and more than 50% are subject to no parliamentary procedure at all (including more than 60 provisions relating to guidance and directions) is a Bill in a category of its own. It is the more noteworthy given that the Bill ultimately affects so many people.

7.The Government repeatedly argue that, given the technical and operational nature of the guidance — perhaps needing frequent revision and operating within the complex NHS structure — it would not be appropriate to attach any parliamentary procedure. But it remains striking how many delegated powers escape parliamentary scrutiny in this Bill.

8.In our view:

• The Bill includes a significant amount of disguised legislation in the form of orders, schemes, rules, guidance, directions and other documents, which are legislative in effect without being subject to parliamentary oversight.
• Until this disguised legislation is actually made, it is difficult to assess the overall significance of the Bill. To that extent, the Bill is skeletal or framework legislation, despite being clothed in over 200 pages of legislative flesh.
• There could have been no timelier reminder of the need for our report, Democracy Denied?, than this Bill, containing - as it does - so much disguised legislation, including more than 60 delegated powers that allow guidance and directions to be issued without any parliamentary procedure at all.

Comments on particular clauses

Clause 15 — people for whom integrated care boards (“ICBs”) have responsibility

9.Clause 15 inserts a new section 14Z31 into the National Health Service Act 2006, allowing rules to make provision for determining the people for whom ICBs are responsible and allowing affirmative regulations to create exceptions in relation to people of a prescribed description.

10.However, clause 15 also contains a limited Henry VIII power allowing the Secretary of State to substitute new section 14Z31 with an alternative version of section 14Z31, and to do so by negative regulations. The Memorandum does not mention this clause in its list of Henry VIII powers.

11.We normally require convincing reasons why Henry VIII powers should be exercised in negative regulations. Here, the Government justify the negative procedure on the ground that the change is a matter of “details” and “administrative and technical in nature” (Memorandum, paragraph 143). Another reason might be that the Minister has a more limited discretion than normal. Instead of being able to replace text A with text B that can be freely devised in regulations, the choice is between alternatives that are both set out in the Bill.

12.Nevertheless, we rarely see legislation setting out alternative versions of text and allowing the Minister to substitute one for the other by negative regulations. This could set an unwelcome precedent, particularly if used regularly or in more controversial circumstances. If a criminal statute stated that the maximum penalty for an offence was a fine of £1,000 - but the Minister could substitute this by five years’ imprisonment simply by making a one-page statutory instrument using the negative procedure - there would be an outcry.

13.If Ministers wish to repeal section 14Z31 by regulations and substitute alternative text, they should use the affirmative resolution procedure rather than the negative.

Clause 20 — power to impose liability by “publishing a document”

14.Clause 20 inserts new section 14Z48 into the National Health Service Act 2006, conferring a delegated power on NHS England to publish a document specifying circumstances in which an ICB is legally liable to make payments to a provider for services provided under arrangements commissioned by another ICB.

15.The Memorandum (paragraph 206) justifies the lack of any parliamentary procedure associated with the publication of the document on the ground that the power is concerned with operational and administrative matters.

16.Such a power is very unusual. If used in a context other than one involving public sector health bodies, it might give grave cause for concern and set an extraordinary precedent. Statutory liabilities should be imposed transparently, subject to clear legal conditions and parliamentary scrutiny. The power to impose a legal liability by merely publishing a document, without any parliamentary scrutiny, is a striking example of disguised legislation. We regard it as an inappropriate delegation of power, which should be removed from the Bill.

Clause 70 — procurement regulations

17.Clause 70 contains a power enabling the Secretary of State to make regulations imposing requirements on relevant authorities in relation to the procurement of health care services, and related goods or services.

18.We draw the House’s attention to the Government’s justifications for taking this power:

(a)The Memorandum (paragraph 481) states that, although initial consultation has been carried out by NHS England on the content of the regime, full analysis has not been completed and there has not been time to produce a more developed proposal.

We do not accept that the inclusion of regulation-making powers should be a cover for inadequately developed policy.

(b)The Memorandum (paragraphs 481 and 485) says that a Cabinet Office procurement Bill will most likely follow the Health and Care Bill, which may require some amendments to the procurement regulation-making power in the Health and Care Bill.

In other words, clause 70 may in part be a temporary measure. Ministers would not ordinarily propose clauses in one Bill possibly requiring imminent amendment in a subsequent Bill without expecting to face questions. The House may wish to seek further and better particulars from the Minister concerning the possible effect of any Cabinet Office procurement Bill on the Health and Care Bill, and — given that the justification in (b) appears to negate that in (a) — to press the Minister on why it was necessary to include provision, based on inadequately developed policy, in the Health and Care Bill when the Government intend to introduce a procurement Bill.

Clause 144 and Schedule 17 — advertising of less healthy food and drink

19.Schedule 17 to the Bill introduces a new section 321A into the Communications Act 2003, the Government’s aim being to restrict advertising (on television, on-demand programme services and the internet) for “less healthy” food or drink products. This will include a watershed between 5.30 a.m. and 9 p.m. during which adverts for less healthy food and drinks cannot be shown.

20.The merits of restrictions on food and drink advertising are not within our remit; but the method of implementing the policy is. Food manufacturers, suppliers and advertisers will clearly be affected by this policy. However, the determination whether food or drink is “less healthy” is not set out on the face of the Bill but is delegated both to regulations and to guidance.3

21.It is one thing to say that “less healthy” means what regulations say it means. The main point of legislation, whether Acts or regulations, is to change the law. It is another thing to say that the meaning of a legislative provision is to be determined by both regulations and relevant guidance. In this Bill, the relevant guidance dates from 2011. But Ministers can alter this reference to the 2011 guidance, albeit by regulations made by affirmative instrument.

22.If the meaning of primary legislation is to be altered, the natural and obvious route is for it to be altered by further primary legislation. We accept that there will be cases where Ministers can properly be given the power to alter primary legislation by means of secondary legislation. However, the normal expectation is that such Henry VIII powers should be exercised by regulations made pursuant to the affirmative resolution procedure.

23.Legislation, which of its nature affects the legal rights and liabilities of people, should not be capable of being altered by guidance. The purpose of guidance is, as the name indicates, to guide. It should not be used as a disguised attempt to change the law. This is what the Government are doing here. The meaning of “less healthy”, which will affect those advertising food and drink, is to be partly a matter for regulations and partly a matter for guidance.

24.Our report, Democracy Denied?, criticised the concept of mandatory guidance as a contradiction in terms and said that the power to make mandatory guidance will never be appropriate. Requirements that have legislative effect should always be expressed in legislative language, either in primary or secondary legislation, and subject to parliamentary oversight. Here, guidance will have a mandatory effect because it will determine the legal meaning of what is meant by “less healthy” food or drink products.

25.It is true that, if the Government wish to alter the definition of relevant guidance found in the proposed new section 321A(4)(d) of the Communications Act 2003, they must be do so by affirmative resolution regulations. But legislation should not be alterable by guidance in the first place. The law should be changed by further law, not by guidance disguised as law.

26.We consider that the power to define a food or drink product that is “less healthy” should be exercised solely through the making of regulations and not also through the making of guidance. The definition of “less healthy” will have a significant impact on the food and drink industry. For this reason, we also consider that the regulations defining what is meant by “less healthy” should be subject to the affirmative resolution procedure.

Conclusion

27.This is not the first time the DHSC has introduced a Bill about which we have been extremely critical. In recent sessions, the Department has introduced two Bills which contravened many of the principles set out in our report Democracy Denied? and in our revised guidance to departments. The two Bills were the Healthcare (International Arrangements) Bill (later changed to the Healthcare (European Economic Area and Switzerland Arrangements) Bill) and the Medicines and Medical Devices Bill.

28.We reported on the Healthcare (International Arrangements) Bill in our 47th Report of session 2017-19. We said that it contained “unprecedented powers for ministers to make law by statutory instrument”.4 We drew attention to the inappropriate use of the negative procedure,5 and the way in which the powers being sought were “in far wider terms than [were] necessary to give effect to the Department’s limited aims”.6 We were critical of the inclusion of a Henry VIII power which enabled a minister to amend or repeal any Act of Parliament ever passed, including future Acts,7 and we referred to clause 2 of the Bill as including delegated powers which “could hardly have been wider”.8

29.In our 19th Report of session 2019-21, we said of clauses 1, 8 and 12 of the Medicines and Medical Devices Bill, that the Government had “failed to provide sufficient justification for this part of the Bill adopting a “skeleton bill” approach, with ministers given very wide powers to almost completely re-write the existing regulatory regimes for human and veterinary medicines and medical devices”.9 We were critical of the Bill allowing the ingredients of criminal offences to be set by delegated legislation,10 and we expressed our dissatisfaction about departments arguing for powers otherwise subject to the affirmative procedure to be subject to the negative procedure because of a need to act quickly, without acknowledging the existence of the made affirmative procedure.11 We criticised provision which allowed regulations to make the disapplication of legislation subject to conditions set out in a “protocol” which we described as another example of “camouflaging legislation”,12 and we expressed concern about the use of consultation being presented as a substitute for parliamentary scrutiny.13.

30.In session 2017-19, a private member’s Bill, the Mental Health Units (Use of Force) Bill, was introduced. It had the support of the DHSC which provided a delegated powers memorandum. We were critical of provision in the Bill which allowed for guidance which was, in effect, mandatory to be issued subject to no parliamentary oversight.14 The Department argued, amongst other things, that the Secretary of State had to consult on the guidance before publishing it. In our report we said that consultation was “an elementary requirement when testing the merits of new policy” and was “an addition to, not a substitute for, parliamentary oversight”.

31.We acknowledge that the DHSC has been under a great deal of pressure as a result of the pandemic. It is disappointing nonetheless that the DHSC has again introduced into Parliament a Bill which, in terms of the delegation of powers, falls so short of the standards which the Committee — and Parliament — are entitled to expect. We have recently published revised guidance to departments and this Bill offends against many of its requirements. The revised guidance sets out the standards against which this Committee will judge bills in future. We therefore urge all ministers and departmental bill teams to pay it close attention, and reiterate the recommendation contained in our recent report Democracy Denied? that it should be set out in full in the Cabinet Office’s Guide to Making Legislation.15

Cigarette Stick Health Warnings Bill [HL]

32.This Bill requires tobacco manufacturers to print health warnings on individual cigarette sticks and cigarette rolling papers.

33.Clause 2 reads:

“(1) A producer of a tobacco product for smoking (other than an importer) must select the warning used for the purposes of this Act—

(a) from the set of warnings which is specified in the Schedule for the production year during which the pack is produced; and

(b) so that each of the warnings appears on a specified proportion of the total number of packs under each brand name produced by that producer within that production year.

(2) The Secretary of State may by regulations made by statutory instrument specify the proportion mentioned in subsection (1)(b).”

34.Breach of clause 2 is a criminal offence carrying a sentence of up to two years’ imprisonment.

35.We draw the attention of the House to the fact that each of the warnings must appear on a “specified” proportion of the total number of packs produced under each brand name. Clause 2(2) says that the Secretary of State “may” by regulations specify the proportion mentioned in clause 2(1)(b). If the Secretary of State does not make such regulations, clause 2(1)(b) will be deprived of meaning. It would be clearer if clause 2(2) were not worded to suggest that it confers power that may or may not be exercised. To ensure that clause 2(1)(b) works as intended, the Secretary of State should be obliged to make regulations, rather than merely be permitted to do so. This result could be achieved by the substitution of “must” for “may” in clause 2(2).

House of Lords (Hereditary Peers) (Abolition of By-Elections) Bill [HL]

36.This Bill contains no delegated powers.

Police, Crime, Sentencing and Courts Bill: Government Responses

37.We considered this Bill in our 6th and 13th Reports of this Session.16 The Government have now responded by way of by way of two letters from Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State at the Ministry of Justice, and Baroness Williams of Trafford, Minister of State at the Home Office. The responses are printed at Appendix 1.

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