The Governance of the Union: Consultation, Co-operation and Legislative consent Contents

Chapter 6: Secondary legislation and Henry VIII powers

Background

283.Secondary legislation is law created by ministers (or other bodies) under powers given to them by primary legislation.351 It is also known as ‘delegated legislation’ or ‘subordinate legislation’.352 ‘Statutory Instruments’ are the most common form of secondary legislation.353 It is generally accepted that the Sewel convention does not apply to secondary legislation.354

284.In written evidence DLUHC said:

“Powers for the UK Government to make statutory instruments in devolved areas are not new and have been used across a wide range of policy areas since the advent of devolution.

This is because it is often appropriate for the UK Government to amend existing or introduce new UK-wide regulations, including in devolved areas, as it can be more efficient, or to ensure coherence across the UK and make it easier for our stakeholders. In some cases, it benefits businesses and citizens to have consistency and coherence across the UK. Henry VIII powers should only be used when absolutely necessary.

The UK Government seeks the agreement of devolved administration Ministers for Statutory Instruments in devolved areas when there is a statutory requirement or an existing political commitment to do so. Whether or not to include statutory consent requirements is considered on a case-by-case basis as each policy area has a different legislative context.

It is sometimes necessary to make consequential amendments to acts of the devolved legislatures to ensure that laws work appropriately (and vice versa).”355

285.The Scottish Parliament’s CEEAC Committee noted “a significant step change” in the use of delegated powers during preparations for the UK’s departure from the EU and after its departure. The Committee said that prior to EU-exit “the UK Government rarely used delegated powers in devolved areas other than in relation to complying with EU law”.356 It was concerned that UK Ministers were being accorded new delegated powers in devolved areas, and that this was occurring “on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”357

286.In written evidence to the same Committee, the Scottish Government said:

“The Scottish Government recognises that there can be pragmatic arguments for powers to provide an option for a UK wide approach to secondary legislation where that is justified, for example when a mix of reserved and devolved matters is involved, provided there are adequate safeguards for devolved interests …

However, the Scottish Government shares the concerns expressed by the Scottish Parliament (and the Welsh Government and the Senedd) about an apparent tendency for the UK Government to routinely propose to take such powers, and without proper safeguards for devolved interests, such as a statutory requirement for consent from Scottish Ministers. The UK Government has also been prepared to breach the Sewel Convention specifically to confer powers on UK Ministers to act in devolved areas against the explicit views of the Scottish Parliament, compounding the disregard of the devolution settlement.”358

287.In our own legislative scrutiny work we have observed in recent years an increase in UK primary legislation that:

We have repeatedly commented on both practices in our legislative scrutiny reports.

288.Where UK legislation empowers UK ministers to make secondary legislation in areas of devolved competence, we have supported the inclusion of a requirement to consult relevant devolved ministers. However, we have also recommended that in such circumstances the UK Government should commit to “not normally” using delegated powers in areas of devolved competence without the consent of the relevant devolved administrations.360

289.Where UK legislation introduces Henry VIII powers which empower UK ministers to alter acts or secondary legislation of the devolved legislatures, we have said it would be “constitutionally questionable” for Parliament to circumvent the Sewel convention “by legislating in a way that foresees or intends delegated legislation to change devolved legislation in areas of devolved competence”. We have therefore recommended that such legislation be amended “to the effect that the power to amend those provisions may not be exercised without the consent of those legislatures”.361

290.In Brexit legislation: constitutional issues we said:

“While the legislative consent convention—that the UK Parliament will not normally legislate in areas of devolved competence without consent—does not apply to delegated legislation, we believe formal engagement with the devolved institutions on the use of such powers should be a requirement.”

And:

“We recommend that powers for UK ministers to make delegated legislation in devolved areas, including the power to supersede law made by devolved legislatures, should include a requirement either to consult devolved ministers or to seek their consent, depending on the significance of the power in question. The more significant the power, the greater the need for consent to be sought. We note that this approach has been adopted in the Fisheries Bill and we encourage the Government to follow this precedent in future legislation.”362

291.In Respect and Co-operation: Building a Stronger Union for the 21st Century we said:

“While the [Sewel] convention does not technically apply to secondary legislation, the UK Government should still seek consent before acting in this area.”363

Consultation vs consent

292.We raised our concerns about the use of delegated legislation in areas of devolved competence with the then Secretary of State for Scotland, Secretary of State for Wales and the Parliamentary Under-Secretary of State at the Northern Ireland Office. In a letter to the Chair of this Committee the ministers said:

“[T]he inclusion of a consult or consent obligation is assessed on a case by case basis. It is important to note that each policy area has a different legislative context so in our view it is appropriate to consider and include such powers on that individual basis. There have been instances where the UK Government has included these obligations but that is following careful policy consideration and where there is strong rationale for doing so.”364

293.Mr Jack said it was the role of Parliamentary Counsel to bring to the attention of the Parliamentary Business and Legislation Committee the use of delegated legislation in areas of devolved competence and the use of Henry VIII powers to alter acts of the devolved legislatures.365 At that point the territorial offices would stress that engagement with the devolved administrations must take place. He thought there should always be a responsibility to consult in these circumstances but was not in favour of introducing an explicit consent mechanism for the use of these powers because it would allow the UK Government to have its “feet held to the fire” down the line.366

294.In the case of Wales, the Devolution Guidance Notes do provide that “the consent of the [Senedd] is normally required where subordinate legislation introduced by the UK Government amends primary legislation for which the [Senedd] has legislative competence.” This is achieved through the Senedd’s Statutory Instrument Consent Mechanism. It requires that a member of the Welsh Government must lay before the Senedd a Statutory Instrument Consent Memorandum in relation to a “relevant statutory instrument” laid before the UK Parliament.367 In a letter to the Chair of this Committee, Ms Evans listed three recent occasions on which Statutory Instrument Consent Memoranda had been laid by the Welsh Government:

295.Ms Evans said the Welsh Government position was that “subordinate legislation made by the UK Government in Wales on devolved matters should be made only with the consent of Welsh Ministers”.369 However, she noted that the Statutory Instrument Consent Mechanism had “no legal effect on the UK Government.”370 Nonetheless, in a letter to the Chair of this Committee, the then Secretary of State for Wales acknowledged the Mechanism and the expectation in the Devolution Guidance Notes that the consent of the Senedd is normally required in these circumstances.371

296.The Devolution Guidance Notes for Wales state that there are exceptions to this general rule; for example, legislation related to Brexit enabled UK Ministers to make Statutory Instruments modifying Senedd legislation without the need for formal consent from the Senedd. The Guidance Notes also specify that while UK primary legislation can be amended if a legislative consent motion is not passed by the Senedd, “statutory instruments usually cannot”.372

297.With regard to Northern Ireland, the Devolution Guidance Notes specify that while the Sewel convention relates to primary legislation, “departments should approach the Devolved Administration on the same basis for … subordinate legislation which extends to NI in the transferred field, even though … there is no formal requirement for agreement by the Northern Ireland Assembly.”373

298.The Devolution Guidance Notes for Scotland are silent on this issue.374 However, in written evidence to the Constitution, Europe, External Affairs and Culture Committee, the Scottish Government said:

“The Scottish Government believes the normal preference should be that Scottish Ministers have powers to act in devolved areas, and that any concurrent powers should require the consent of Scottish Ministers for which they can be scrutinised by the Scottish Parliament. Any exceptions, for example that UK Ministers can exercise such powers after consulting Scottish Ministers, should be carefully justified to the Scottish Parliament, and the UK Government should include a requirement for statutory consent if the Scottish Parliament does not agree to its proposals.”375

299.Witnesses thought altering the powers of the devolved administrations by way of secondary legislation without consent was “a bad idea”, and that ways should be found to have a more consultative and deliberative process.376 Dr Rycroft commented that “[t]here may be times when there is agreement to use delegated powers to change things, but it ought to be done properly with the agreement of the devolved Governments.”377 In written evidence the Northern Ireland Executive said:

“It is recognised that using delegated legislation in areas of devolved competence with consent can ensure consistency of provision and entitlement across jurisdictions, and that any issues specific to each devolved government can be addressed before implementation.”378

300.Professor Gallagher said: “It is outrageous to think that something that Parliament should not do a Minister can nevertheless do … This use of delegated powers to legislate in matters that Parliament itself should not be legislating in is a very good example of the poisonous notion that the person who is sovereign is the Minister.”379

301.Professor McAllister thought the Sewel convention should include delegated legislation. She said: “[C]learly if Parliament cannot do something then Ministers should not be allowed to do it. Ministers are not sovereign in any sense.”380 She also said: “[I]t is often some of the most meaningful and impactful changes to citizens’ lives that come through delegated legislation”. She did not think Henry VIII powers should be used to alter acts of the devolved legislatures without agreement from all governments.381

302.We asked how it would work practically to extend the Sewel convention to delegated legislation given the volume of delegated legislation, some of which is more consequential than others. Dr Williams suggested that there might be a case to be made that certain pieces of delegated legislation did not require the full legislative consent procedure. Professor McAllister said that if there were a “better programme of legislation which the devolved governments were consulted on early in the process, maybe there could be some distinction between the areas that would be of import to devolved Governments and those that are of less consequence to them.”382

303.Mr Jack made clear that the then Government’s position was that “the Sewel convention should not apply to secondary legislation”. He elaborated: “I suspect that the view is that it has gone through primary legislation with the Sewel convention. Therefore, having gone through primary legislation, it should not go through secondary legislation”.383 Mr Davies made a similar point, using the Tobacco and Vapes Bill384 as an example. He said:

“We have the support of the Welsh Government in passing this bit of legislation. I am absolutely certain, although I cannot give you examples, that within that there will probably be secondary legislation. There will be powers probably given to UK Ministers to legislate in what will effectively be health areas. The fact that we have already discussed the main legislation with the Senedd and got its agreement to it means that it is reasonable to assume that it will be happy with a UK Government Minister having the power to pass secondary legislation over a period of time into the future.”385

304.The Scottish Parliament’s CEEAC Committee recommended there should be a supplementary agreement on the use of delegated powers by UK ministers in devolved areas including:

305.We recommend the new Government develops a clear set of criteria regarding the appropriate use of delegated powers in areas of devolved competence. These criteria should be set out in guidance provided to the Office of the Parliamentary Counsel, which should be published.

306.We reiterate our previous recommendation that formal engagement with the devolved administrations on the use of delegated powers in areas of devolved competence should be a requirement. UK Ministers should either consult devolved ministers or seek their consent, depending on the significance of the delegated power in question. In developing the criteria referred to in paragraph 305, the UK Government should set out the circumstances in which it ought “not normally” to exercise a delegated power without the consent of the relevant devolved institution. For instance, where UK legislation contains powers which empower UK ministers to alter acts of the devolved legislatures, these powers should not normally be exercised without the explicit consent of the relevant legislatures.

307.The process for consulting and seeking the consent of the devolved institutions on the use of delegated powers in areas of devolved competence should be set out in writing and should include recognition of the role of the devolved legislatures in scrutinising such powers. The Senedd’s Statutory Instrument Consent Mechanism provides a useful model for achieving this. The process of consulting and seeking the consent of the devolved institutions on the use of such powers should form part of the principle of positive engagement discussed in Chapters 3 and 5.

351 UK Parliament, What is Secondary Legislation?’: https://www.parliament.uk/about/how/laws/secondary-legislation/ [accessed 22 September 2024]

352 UK Government, ‘Understanding legislation’: https://www.legislation.gov.uk/understanding-legislation. [accessed 22 September 2024]

353 UK Parliament, ‘Statutory Instruments: https://www.parliament.uk/site-information/glossary/statutory-instruments-sis/ [accessed 22 September 2024]

354 Constitution Committee, The ‘Great Repeal Bill’ and delegated powers (9th Report, Session 2016–17, HL Paper 123), para 118

355 Written evidence from the Department for Levelling Up, Housing and Communities (GOU0006)

356 Written evidence from the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee (GOU0005)

357 Ibid.

358 Written evidence from the Scottish Government to the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee, p 5: https://www.parliament.scot/-/media/files/committees/constitution-europe-external-affairs-and-culture-committee/correspondence/2023/scottish-government-response-to-the-committees-letter-of-25-may-2023.pdf [accessed 22 September 2024]

359 Prof Aileen McHarg, Policy Exchange, ‘Ministerial powers and devolved competence’ (17 March 2023): https://policyexchange.org.uk/blogs/ministerial-powers-and-devolved-competence/ [accessed 22 September 2024]

360 For example, when we scrutinised the Levelling-up and Regeneration Bill we welcomed “the requirement in the Bill to consult relevant devolved ministers when making regulations containing provision within devolved competence.” We also urged the Government “to replicate for the Levelling Up and Regeneration Bill its commitment on the Trade (Australia and New Zealand) Bill “not normally” to use delegated powers in areas of devolved competence without the consent of the relevant devolved administrations.” Similarly, in our report on the Retained EU Law (Revocation and Reform) Bill we recommended the Bill was amended “to require UK ministers to consult the relevant devolved administration before making regulations that affect areas of devolved competence.” We also said: “it would be welcome if the Government were to commit not normally to use the powers under the Bill in areas of devolved competence without having obtained the consent of the relevant devolved administration.” Constitution Committee, Levelling-up and Regeneration Bill (12th Report, Session 2022–23, HL Paper 140), paras 23-24; Constitution Committee, Retained EU Law (Revocation and Reform) Bill (13th Report, Session 2022–23, HL Paper 141), paras 39-40

361 Constitution Committee, Nationality and Borders Bill (11th Report, Session 2021–22, HL Paper 149), Constitution Committee, Energy Bill (4th Report, Session 2022–23, HL Paper 60), paras 103-104

362 Constitution Committee, Brexit legislation: constitutional issues (6th Report, Session 2019–21, HL Paper 71), paras 64–65

363 Constitution Committee, Respect and Co-operation: Building a Stronger Union for the 21st Century (10th Report, Session 2021–22, HL Paper 142), para 124

364 Letter from Rt Hon Alister Jack MP, Secretary of State for Scotland, Rt Hon David TC Davies MP, Secretary of State for Wales and Lord Caine, Parliamentary Under-Secretary of State for Northern Ireland to Baroness Drake, Chair of the Constitution Committee (30 May 2024): https://committees.parliament.uk/publications/45296/documents/224375/default/ [

365 This is reflected in the Devolution Guidance Notes which state, for example in relation to Wales: “Devolution issues form an important part of the memorandum presented to Parliamentary Business and Legislation (PBL) Committee to inform its consideration of whether a Bill is ready to be introduced in Parliament … Devolution issues should be substantively resolved by the time the Committee considers whether a Bill should be introduced … “ Cabinet Office, Devolution Guidance Note: Parliamentary and Assembly Primary Legislation Affecting Wales, para 62: https://assets.publishing.service.gov.uk/media/5ad9edd4ed915d32a3a7100a/DGN_-_Parliamentary_and_Assembly_Primary_Legislation_Affacting_Wales.pdf [accessed 22 September 2024]; Cabinet Office, Post-Devolution Legislation Affecting Northern Ireland, paras 4 and 7: https://assets.publishing.service.gov.uk/media/5a797df740f0b63d72fc6480/post-devolution-primary-ni.pdf [accessed 22 September 2024] and Cabinet Office, Post-Devolution Primary Legislation affecting Scotland, paras 3 and 8: https://assets.publishing.service.gov.uk/media/5a79c7efe5274a18ba50ec92/post-devolution-primary-scotland.pdf [accessed 22 September 2024]

366 QQ 83 and 86 (Rt Hon Alister Jack MP)

367 Letter from Rebecca Evans MS, Welsh Cabinet Secretary for Finance, Constitution & Cabinet Office to Baroness Drake, Chair of the Constitution Committee (31 July 2024): https://committees.parliament.uk/publications/45297/documents/224376/default/. A “relevant statutory instrument” is “a statutory instrument or draft statutory instrument laid before the UK Parliament by UK Ministers which makes provision (“relevant provision”) in relation to Wales amending primary legislation within the legislative competence of the Senedd (apart from incidental, consequential, transitional, transitory, supplementary or savings provisions relating to matters that are not within the legislative competence of the Senedd).” Welsh Parliament, ‘Standing Orders of the Welsh Parliament’ (January 2024), pp 186–187: https://senedd.wales/media/ue1dqdmg/so-eng.pdf [accessed 22 September 2024]

368 Letter from Rebecca Evans MS, Welsh Cabinet Secretary for Finance, Constitution & Cabinet Office to Baroness Drake, Chair of the Constitution Committee (31 July 2024): https://committees.parliament.uk/publications/45297/documents/224376/default/

369 Q 114 (Rebecca Evans MS)

370 Ibid.

371 Letter from Rt Hon Alister Jack MP, Secretary of State for Scotland, Rt Hon David TC Davies MP, Secretary of State for Wales and Lord Caine, Parliamentary Under-Secretary of State for Northern Ireland to Baroness Drake, Chair of the Constitution Committee (30 May 2024): https://committees.parliament.uk/publications/45296/documents/224375/default/

372 Cabinet Office, Devolution Guidance Note: Parliamentary and Assembly Primary Legislation Affecting Wales, paras 108–110: https://assets.publishing.service.gov.uk/media/5ad9edd4ed915d32a3a7100a/DGN_-_Parliamentary_and_Assembly_Primary_Legislation_Affacting_Wales.pdf [accessed 22 September 2024]

373 Cabinet Office, Post-Devolution Legislation Affecting Northern Ireland: https://assets.publishing.service.gov.uk/media/5a797df740f0b63d72fc6480/post-devolution-primary-ni.pdf [accessed 22 September 2024]

374 Cabinet Office, Post-Devolution Primary Legislation affecting Scotland: https://assets.publishing.service.gov.uk/media/5a79c7efe5274a18ba50ec92/post-devolution-primary-scotland.pdf [accessed 22 September 2024]

375 Written evidence from the Scottish Government to the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee, p 5: https://www.parliament.scot/-/media/files/committees/constitution-europe-external-affairs-and-culture-committee/correspondence/2023/scottish-government-response-to-the-committees-letter-of-25-may-2023.pdf [accessed 23 September 2024]

376 Q 10 (Prof Ciaran Martin); written evidence from Dr Paul Anderson and Dr Coree Brown Swan (GOU0001)

377 Q 35 (Dr Philip Rycroft)

378 Written evidence from the Northern Ireland Executive Office (GOU0013)

379 Q 35 (Prof Jim Gallagher)

380 Q 70 (Prof Laura McAllister)

381 Q 71 (Prof Laura McAllister)

382 Ibid.

383 Q 85 (Rt Hon Alister Jack MP); Letter from Rt Hon Alister Jack MP, Secretary of State for Scotland, Rt Hon David TC Davies MP, Secretary of State for Wales and Lord Caine, Parliamentary Under-Secretary of State for Northern Ireland to Baroness Drake, Chair of the Constitution Committee (30 May 2024): https://committees.parliament.uk/publications/45296/documents/224375/default/

384 The Tobacco and Vapes Bill subsequently ‘fell’ following the calling of a general election on 22 May 2024.

385 Q 88 (Rt Hon David TC Davies MP)

386 Written evidence from the Scottish Parliament’s Constitution, Europe, External Affairs and Culture Committee (GOU0005)




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