Chapter 2: Shared concerns of the SLSC and the DPRRC about primary legislation
Threshold between primary and secondary legislation
Need to re-set the balance between Parliament and the government
14.The threshold between primary and secondary legislation is central to the balance of power between Parliament and government. Parliament is the sovereign law-making body but, routinely, and for good reason, will delegate legislative powers so that the finer detail of legislation can be set out in secondary legislation. It is, therefore, usual practice for bills (which become Acts of Parliament) to include provision conferring power on ministers to make secondary legislation (usually in the form of statutory instruments).
15.In recent years, the balance of power between Parliament and government has shifted significantly towards the government, a trend that has been accentuated by Brexit and the pandemic. We acknowledge that even before these exceptional times, concerns had been raised, going back as far as the Committee on Ministers’ Powers (the Donoughmore Committee) which reported in 1932;10 later by Lord Rippon of Hexham during debates in the House of Lords in 1990, for example,11 and then in 1992 when the Select Committee on the Work of the House (chaired by the Earl Jellicoe) published a report which recommended the appointment of a Delegated Powers Scrutiny Committee because of “the considerable disquiet over the problem of wide and sometimes ill-defined order making powers”.12 But, as we said in our introduction, we believe, like the DPRRC and others, that a critical moment has been reached when it is imperative that efforts are made to re-set the relationship between Parliament and government—and not to how it was immediately before Brexit and the pandemic but afresh, to reflect the modern conditions of government.
Overlapping interests of the SLSC and the DPRRC
16.Scrutiny of the delegation of legislative power is the principal concern of the DPRRC. Its terms of reference charge it with advising the House on whether a delegation of legislative power is appropriate and, if it is, whether it is subject to an appropriate level of parliamentary scrutiny. The DPRRC has described its role as being “to police the boundary between primary and delegated legislation”—and, in so doing, “playing a critical role in protecting the integrity of Parliament in the face of any attempts by governments of whatever political persuasion to erode it”.13
17.The SLSC also has a significant interest in this boundary between primary and secondary legislation because it scrutinises the legislation which is the product of the exercise of delegated legislative powers. If legislative power rests to an inappropriate degree in the hands of the executive because of the delegation of far-reaching powers, the secondary legislation made under such powers may make significant policy changes rather than the sort of technical refinement of previously agreed policy for which secondary legislation is more appropriately used.
18.It cannot be emphasised strongly enough that the critical problem about relegating significant policy change to secondary legislation is that parliamentary scrutiny of secondary legislation is far less robust than that afforded to primary legislation–in three ways:
- first, secondary legislation cannot be amended and so the two Houses have only an “all or nothing” choice—to accept or reject the legislation in its entirety, even if members of either House may wish to object only to parts of an instrument;14
- second, and linked to the fact that secondary legislation cannot be amended, it is not subjected to line-by-line scrutiny over a number of days, and to “to and fro” (sometimes called “ping pong”) between the Houses in the way that bills are;15 and if it is debated (and most secondary legislation is not), it is debated only once in each House; and,
- third, rejection of secondary legislation by Parliament is a very rare occurrence. Since 1968, when the Lords rejected the draft Southern Rhodesia (United Nations Sanctions) Order 1968, the Government have been defeated in the House of Lords on only six motions relating to five statutory instruments–four motions to reject and two motions to defer.16Added to which, when–on the most recent of those rare occasions–the House did oppose a statutory instrument (which under the parent Act was laid before both Houses),17 there were significant constitutional consequences in the shape of the Strathclyde Review.
19.The Strathclyde Review was prompted principally by the outcome of votes in the House of Lords on the Tax Credits (Income Thresholds and Determination of Rates) (Amendment) Regulations 2015, a draft affirmative instrument, on 26 October 2015. The votes had the effect of deferring further consideration of the draft instrument until specified conditions had been satisfied. The following day, the Government announced a review to “examine how to protect the ability of elected Governments to secure their business in Parliament”. The review would “in particular … consider how to secure the decisive role of the elected House of Commons in relation to its primacy on financial matters and secondary legislation”.18
20.The review was conducted by the Rt Hon. Lord Strathclyde and reported in December 2015.19 It set out three options for change: (1) to remove the House of Lords from statutory instrument procedure altogether, (2) to retain the role of the House of Lords in such procedure but underpinned by an understanding (either set out in a resolution or in standing orders) that the power of the House to reject an instrument would be left unused, and (3) to create a new statutory procedure enabling the Commons to override any decision by the Lords to reject an instrument. Lord Strathclyde recommended the third option.
21.The SLSC, the DPRRC and the Constitution Committee each responded to the Strathclyde Review, all in highly critical terms and all reflecting on the significance of the relationship between primary and secondary legislation.20 The concerns of the three Committees led to a collaborative approach between the SLSC and DPRRC that was not unlike our current approach: “Of interest to both this Committee and, more directly, to the DPRRC is Lord Strathclyde’s concluding comment in the Executive Summary about the need “to take steps to ensure that Bills contain an appropriate level of detail and that too much is not left for implementation by statutory instrument”.21 As a result, the (then) Chair of the DPRRC, Baroness Fookes, attended our evidence sessions and we were grateful for her contribution to our work at that time.
22.Despite the Strathclyde Report having little support in the House and despite the Government deciding, at the time, not to adopt Lord Strathclyde’s recommended option, the legacy of the Review continues to be felt. In their response to the Review and to the Committees’ reports, the Government issued a warning to the House of Lords: “Whilst recognising the valuable role of the House of Lords in scrutinising SIs, the Government remains concerned that there is no mechanism for the elected chamber to overturn a decision by the unelected chamber on SIs.22 We do not believe that it is something that can remain unchanged if the House of Lords seeks to vote against SIs approved by the House of Commons when there is no mechanism for the will of the elected House to prevail. We must, therefore, keep the situation under review and remain prepared to act if the primacy of the Commons is further threatened.”23 The weight of that warning remains.
23.In our report on the Strathclyde Review, we concluded that: “The boundary between primary and secondary legislation is the foundation of any consideration of the scrutiny by Parliament of secondary legislation”.24 We remain of that view. The more that is left to secondary legislation, the greater the democratic deficit because of the absence of robust procedures enabling effective parliamentary scrutiny of secondary legislation.
Re-setting the balance and the principles of parliamentary democracy
24.In our request to the three Permanent Secretaries for written evidence for this report, we put to them that a number of recent statutory instruments had contained significant policy changes, and we asked them whether they agreed that it was time to consider re-setting the boundary between primary and secondary legislation.25 They replied: “The Government recognises the importance of reflecting well developed policy in appropriate legislative detail. Delegated legislation is an essential part of our legislative framework and all legislation, including delegated legislation, should be clear, precise and proportionate and must also be subject to appropriate scrutiny”. They acknowledged that these “exceptional times … do not necessarily provide a model example of how Parliament would like to see legislation brought forward” and said that: “The Government is committed to ensuring the appropriateness of any delegated powers included in a bill is fully tested as part of the bill preparation process by policy leads and departmental lawyers acting with advice from Parliamentary Counsel.”26 We are concerned, however, that the underlying challenge to the balance between Parliament and government is not primarily attributable to the impact of “exceptional times” such as Brexit and the pandemic, as the Permanent Secretaries appeared to assert, but is instead the result of a general strategic shift by government.
25.The Permanent Secretaries were pressed further in oral evidence. They were asked whether part of their role was to advise ministers whether policy should be implemented by primary rather than secondary legislation. Ms Finkelstein said that, if a power to make secondary legislation existed, it would always be considered because “… there is competition for parliamentary time, so there is no question that, when thinking about making changes, there will always be a question as to whether they are suitable for secondary legislation because of the challenge of space for significant primary legislation”.27
26.Dame Elizabeth was also asked about the basis for deciding, when drafting a bill, what should be on the face of the bill and what should be left to regulations. She said: “Our starting position is that we want the Bill to tell its story in such a way that Parliament can scrutinise the policy framework and the policy at a sufficient level of detail that they understand what the Bill is about”.28 She went on: “… your hope [is] that the main points of principle of the policy are set out in the Bill to enable Parliament to give it sufficient scrutiny”–but, she said, “… we do not always achieve that, for a variety of reasons”.29 These included, for example, that “… the detailed policy cannot be worked out at the point at which you bring forward the primary legislation, but there may be practical or political drivers to bringing forward the legislation at a particular time”, or “… the legislative programme is so tight and there is great demand for legislation each year”.30 We acknowledge that Dame Elizabeth correctly describes a political reality but it is one which has contributed to the crisis in the legislative process that we have identified. If detailed policy has not been resolved at the introduction of primary legislation, then that legislation must always be premature.
27.In their written evidence, the Permanent Secretaries described what was being done to ensure that bills contain only appropriate delegations of power. They referred to training and resources, including the Cabinet Office Guide to Making Legislation (“the Guide”) which, they said, “contains extensive guidance for teams in relation to delegated powers”.31 In oral evidence, both Dame Elizabeth32 and the Lord President33 also asserted that departments were called to account by the Parliamentary Business and Legislation (PBL) Committee of the Cabinet Office for the inclusion of delegated powers in bills.
28.While we welcome these encouraging words, we share the concern expressed by the DPRRC in its parallel report that the answers given in evidence appear to encourage bill teams to see the inclusion of delegated powers as a political or practical matter, without reference to more fundamental issues relating to the principles of parliamentary democracy.
29.We wonder how strong a protection the provisions of a Guide will prove in the face of ministers wishing to show prompt departmental performance. We nonetheless endorse the DPRRC’s recommendation that the Cabinet Office Guide to Making Legislation be amended to include a statement of principles which should govern any decision by ministers about whether a bill should include delegated legislative powers. The statement should require ministers, when seeking a delegation of legislative power, to take into account to the fullest extent possible the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament. We note that the current Guide, in paragraph 16.1, refers to some factors that departments are told to consider when seeking delegated powers, but they do not, we believe, go to the fundamental issue raised by the DPRRC.
Skeleton legislation
30.The balance between what provision is on the face of a bill and what is left for secondary legislation varies from bill to bill. At one extreme, a bill will contain no delegations and every aspect of the policy will be set out on its face. At the other extreme, a bill is simply a skeleton or framework bill–a bill which contains so many significant delegated powers that the “real operation [of the Act] would be entirely by the regulations made under it”34 Without delegation of power to enable ministers to make regulations about the detailed implementation of an Act, parliamentary time would become congested, and the legislative process would move too slowly. But too little on the face of a bill means that Parliament would, in effect, be signing a legislative blank cheque. There is a balance to be struck whereby the principles of the legislation are set out on the face of the primary legislation with matters of detailed implementation left to regulations.
31.In September 2020, such was their concern about the use of skeleton legislation, that the SLSC, the DPRRC and the Constitution Committee wrote to the Government (see paragraph 9 above) about “the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”. The Committees said 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”. The letter set out in detail examples of skeleton legislation, both recent Brexit-related bills and bills in earlier sessions. The former included: 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. The Civil Liability Bill, in session 2017–19, provided an example of a non-Brexit skeleton bill.
32.In their written evidence, the Permanent Secretaries acknowledged that Brexit and the pandemic had led to some legislation having to be “delivered swiftly” and as a result some bills had had “to provide for significant secondary powers”.35 In oral evidence, Dame Elizabeth sought to offer the following reassurance:
“The Parliamentary Business and Legislation Committee takes the powers very seriously, and Ministers understand that. When they come before the committee, they know they will have to discuss the powers they are taking and how they might land in Parliament, and that is a significant part of the role which the Parliamentary Business and Legislation Committee plays in relation to the clearance of Bills.”
33.We do not quarrel with Dame Elizabeth’s assertion, but we nonetheless believe that the outcomes have been less than desirable.
34.The PBL Committee is a Cabinet Committee, with terms of reference “to consider matters relating to the Government’s parliamentary business and delivery of its legislative programme”. It is chaired by the Lord President. In evidence to the DPRRC, on 12 May 2021, a session also attended by members of the SLSC, the Lord President emphasised that the PBL Committee invariably asks for delegated powers to be justified and he added that, in his view, it is “in the interests of the Government to be as specific as possible”.36 In response to the letter sent by the three Committees in September 2020, the Lord President took a similar line and agreed to consider issuing a communication to Secretaries of State “encouraging them to minimise the use of delegated powers where possible”.37
35.As the DPRRC states in its parallel report, 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 law to be decided by ministers “on the hoof”. We endorse the DPRRC’s view that skeleton legislation should only be used in the most exceptional circumstances and that, where it is used, a department should always provide a full justification, including an explanation of the nature of those exceptional circumstances, why no other approach was reasonable to adopt and how the scope of the skeleton provision is to be constrained. We note that the Guide to Making Legislation, in paragraph 16.11, tells departments that skeleton (called in the Guide “enabling”) bills or skeleton clauses in a bill need to be fully justified, if possible, with relevant precedents. This does not, however, cover sufficiently the range of issues which should be addressed in a full justification.
36.The DPRRC proposes a new procedure for identifying skeleton bills or skeleton clauses in a bill. The principal burden, under the proposal, would initially rest with the department in that the procedure expects the department to disclose skeleton provision by way of a declaration in the delegated powers memorandum accompanying the bill (a “skeleton legislation declaration”). If no such declaration were made but the DPRRC considered that one should have been, then the Committee may invite the minister to justify his or her department’s view (possibly in oral evidence), following which the Committee would make a short report to the House, ideally before second reading. The DPRRC proposes that it should be given a “scrutiny reserve” in these circumstances so that the bill could not proceed to second reading before it has made that short report.
37.For bills starting in the House of Commons, unless a similar mechanism were to be established in that House, the challenge of the DPRRC, in the event of a department failing to make a skeleton legislation declaration, would ordinarily only bite once a bill had reached the House of Lords. An alternative mechanism might be to draw on the authority of the Speakers of the two Houses by giving them a role in adjudicating whether a bill is, or clauses in a bill are, skeleton legislation. We believe that the intervention of the Speakers would strengthen the role of Parliament, and there is the precedent that the Speaker of the House of Commons has power to certify whether a bill is a money bill under the Parliament Act 1911. We acknowledge, however, that a precise definition of “skeleton bill” or “skeleton clauses” would be more difficult to prescribe compared to the clarity of the meaning of money bill set out in section 1(2) of the 1911 Act. More generally, this proposal raises complex issues which would require a great deal of further exploration by both Houses and the Government.
Secondary legislation and skeleton bills and clauses
38.Despite the burden of being called to account to justify their use, we accept that there may be circumstances where a government, perhaps for the reasons described by Dame Elizabeth (see paragraph 26 above), will nevertheless decide to press ahead with a skeleton bill or skeleton clauses in a bill.
39.In such circumstances, whether the department makes a declaration that the bill is (or contains clauses which are) skeletal, or a finding to that effect is made by the DPRRC or under a procedure involving the Speakers, the consequences might be that:
- the minister would be challenged about the use of skeleton legislation during the second reading debate and required to provide a fuller justification for its use. It would then be a matter for the House to decide whether the bill should receive a second reading;
- the minister would be persuaded to delay progress of the bill to enable further provision to be put on its face (as happened during the passage of the Childcare Bill in 2015, following adverse reports from the DPRRC and the Constitution Committee about its skeletal nature);38
- the department would be pressed into providing illustrative draft statutory instruments, before second reading, to show how the powers were intended to be used.
40.The consequences of a declaration—or a finding—that a bill is a skeleton bill (or contains skeleton clauses) need, however, to go well beyond second reading. Skeleton bills or skeleton clauses, by their very nature, cannot be adequately scrutinised during their passage through Parliament. Accordingly, if skeleton legislation is to be enacted, there should, at the very least, be statutory safeguards in place to ensure that the lack of parliamentary scrutiny at the primary legislation stage is recompensed by a more challenging scrutiny procedure at the secondary legislation stage.
41.Options for safeguards might include:
- A requirement on the face of the bill that the exercise of any powers under it that are conferred by skeleton provision should be subject to an enhanced scrutiny procedure (a super-affirmative procedure) that enables Parliament, or committees of the two Houses, to comment on a draft of any instrument before it is laid in its final form and to propose amendments to the draft.39
- Alternatively, as the DPRRC suggests in its parallel report, a generic requirement to apply an enhanced scrutiny procedure to the exercise of powers conferred under skeleton provision might be included in a revised Statutory Instruments Act 1946 (including provision for Parliament to propose amendments to draft statutory instruments made under such powers).
- A requirement, in addition, that the exercise of any powers made under skeleton provision should be subject to consultation, with a further requirement for ministers to report to Parliament on the outcome of such consultation, including how the findings of the consultation were taken into account in preparing the secondary legislation.
Further inquiry on re-setting the balance of power between Parliament and the government
42.We are aware that we are making suggestions that some may consider to be radical, both in terms of there being a determination as to whether a bill is a skeleton bill (or contains skeleton clauses) and the consequences that should follow any such determination. It is not within the scope of this report to offer a fully developed scheme for the implementation of these suggestions–not least because these are matters of equal concern to the House of Commons, and the Government, and require thorough discussion within Parliament and Whitehall, and the involvement of interested organisations and the wider public.
43.We recommend that the Government, together with the two Houses of Parliament and their Procedure Committees, should consider (a) adopting procedures for determining whether legislation is skeleton legislation, and (b) what the consequences of any such determination should be, in terms of scrutiny of such legislation and any statutory instruments made under powers contained in it.
44.The proposals set out in this chapter are intended to provide safeguards in circumstances where a government introduces skeleton legislation. We have endorsed the view of the DPRRC that the Guide should state that skeleton legislation should be used only in the most exceptional circumstances, and evidence from the Government indicates that they agree—the Lord President told the DPRRC in oral evidence that “detailed legislation is very important and is the right way to go in most cases” and Dame Elizabeth told us that her starting point is that a bill should “tell its story in such a way that Parliament can scrutinise the policy framework and the policy at a sufficient level of detail that they understand what the Bill is about”. Given this, it seems reasonable to anticipate—and it is our hope—that skeleton legislation will be relatively rare and, as a result, the proposed enhanced scrutiny procedure would only rarely be required. The inevitable conclusion therefore is that when it is used, it will be as a direct result of the government of the day having decided, in all the circumstances, to press ahead with a skeleton bill or a bill containing skeleton clauses.
Legislative sub-delegation of power
45.In its parallel report, the DPRRC draws attention to legislative sub-delegation of power. This is where an Act of Parliament confers a legislative power on ministers which, in turn, includes provision for a further delegation of legislative power. This means that the minister may make a statutory instrument which includes a delegated power conferring on themselves or another person or body power to make further regulations—or “tertiary legislation”.
46.The DPRRC makes several recommendations about legislative sub-delegation of power, focusing on the inclusion in bills of powers to sub-delegate. However, sub-delegation is also relevant to the scrutiny of secondary legislation because it is in secondary legislation that delegated powers to make tertiary legislation are to be found. We therefore endorse the recommendation of the DPRRC that where a statutory instrument contains a delegation of power, the accompanying explanatory memorandum should state clearly, under a separate heading, that this is the case, with a full explanation of why the power is needed and its scope.
10 Committee on Ministers’ Powers, Report, Cmd 4060 (April 1932).
12 Committee on the Work of the House, Report (Session 1991–92, HL Paper 35), para 133. During the debate on the Jellicoe Report, Lord Rippon was acknowledged as the originator of the proposal for a delegated powers scrutiny committee. HL Deb, 3 June 1992, col 901.
13 DPRRC, Special Report: Submission to the House of Commons Procedure Committee inquiry on the delegated powers in the “Great Repeal Bill” (23rd Report, Session 2016–17, HL Paper 143), para 10.
14 Except in the very small number of cases where the parent Act specifically provides for such amendment, for example, the Census Act 1920 s. 1(2) and the Civil Contingencies Act 2004 s. 27(3).
15 Bills pass through each of the Houses of Parliament in turn. If the second House amends a bill, then it has to return to the first House. The first House may agree to the amendments and the bill can then receive Royal Assent and become an Act of Parliament. If the first House does not agree to the amendments, then the bill goes between the Houses (“to and fro”)—until they agree a single text. In contrast, secondary legislation is laid before both Houses at the same time and considered by each House entirely separately. In the unlikely event that an instrument is rejected by either House, the instruments falls, irrespective of whether the other House has agreed to it.
16 SLSC, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation (32nd Report, Session 2015–16, HL Paper 128), paras 56 and 57.
17 The parent Act was not a money bill.
18 HL Deb, 28 October 2015, cols 1175–76.
19 Cabinet Office, Strathclyde Review: Secondary legislation and the primacy of the House of Commons, Cm 9177 (December 2015): https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/486790/53088_Cm_9177_Web_Accessible.pdf.
20 SLSC, Response to the Strathclyde Review: Effective parliamentary scrutiny of secondary legislation, (32nd Report, Session 2015–16, HL Paper 128); DPRRC, Special Report: Response to the Strathclyde Review, (25th Report, Session 2015–16, HL Paper 119); Constitution Committee, Delegated Legislation and Parliament: A response to the Strathclyde Review (9th Report, Session 2015–16, HL Paper 116).
21 SLSC, 32nd Report (Session 2015–16, HL Paper 128), para 26.
22 This passage implies that a rejection of an instrument by the Lords is irreversible by the Commons. Although this is strictly the case, it is open to the government to lay an almost identical instrument and seek approval for this second instrument. In the case of the Southern Rhodesia (United Nations Sanctions) Order 1968, following the decision of the Lords not to approve the original instrument, the Lords approved an almost identical instrument some weeks later.
23 House of Commons, Government Response to the Strathclyde Review: Secondary legislation and the primacy of the House of Commons and the related Select Committee Reports, Cm 9363 (December 2016), foreword: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/573768/government_response_to_the_strathclyde_review_december_2016_print_version.pdf.
24 SLSC, 32nd Report (Session 2015–16, HL Paper 128), para 76.
34 Delegated Powers Committee, 1st Report (Session 1992–93, HL Paper 57), para 15.
37 Letter dated 19 October 2020 which is part of the skeleton bill correspondence. See footnote 7 above.
39 We note that Sir Jonathan Jones KCB QC (Hon), former Treasury Solicitor, in his remarks to the Statute Law Society on 9 September 2021 made a similar proposal in relation to the exercise of Henry VIII powers or powers which create or extend criminal offences: https://www.ucl.ac.uk/laws/sites/laws/files/statute_law_society_re_secondary_legislation_edited_-_j.jones_27102021.pdf [accessed 12 November 2021].