Baby Steps? Government Action on Delegated Powers 

By: Tasneem Ghazi

This blog post provides an update on delegated powers over the parliamentary session 2022-2023. I summarise the concerns of the Delegated Powers and Regulatory Reform Committee, which is a House of Lords committee that holds the Government accountable for delegated powers in bills. Ultimately, I argue that there has been little progress, despite a higher positive response rate to committee recommendations. 

1. Democracy Denied 

Unlike in other jurisdictions, in the UK there are no formal rules or provisions in primary legislation that restrict the delegation of legislative powers or their exercise. There was, however, a convention on which matters were appropriate for delegated legislation, which delegations were unacceptable and which should not be used, apart from in the most extreme cases. The Donoughmore Committee of 1932 described normal delegations as being clearly defined, and legislating “on matters of principle and taxation” as inappropriate. [1] Exceptional delegations included Henry VIII powers (which enable regulations to amend acts), powers subject to an ouster clause and powers drafted in uncertain terms.[2]

Over time, this convention has been eroded over time. In 2018, the House of Lords Constitution Committee argued that the determinant factor as to whether delegated powers are included in bills is “whether Parliament will accept the delegation, rather than any point of principle”. Nearly two years two ago, the Delegated Powers and Regulatory Reform Committee (DPRRC) issued its starkest warning yet, in Democracy Denied:

a critical moment has been reached where action is needed to bring about significant change in the way in which legislation is framed so that it is, first and foremost, founded on the principles of parliamentary democracy, namely parliamentary sovereignty, the rule of law and the accountability of the executive to Parliament.

In Democracy Denied, the DPRRC was especially critical of a number of trends including (1) the prevalence of skeleton bills; (2) the use of disguised legislation. Skeleton bills are those that can contain so many delegated powers that the “real operation [of the Act] would be entirely by the regulations made under it”, thus reducing Parliament’s role to a rubber-stamping exercise. In the past, the Donoughmore Committee described these bills as a “serious invasion of the sphere of Parliament by the Executive”.[3] The DPPRC’s also criticised the prevalence of “disguised legislation”, which is the use of guidance and non-legal documents that were not subject to parliamentary scrutiny to impose legal obligations. These documents do not have the same legitimacy as delegated legislation, they often receive no parliamentary  scrutiny and their use confuses the public.

2. Government Response: Amending the Cabinet Office Guide 

In its response to Democracy Denied, the Government disagreed with a number of DPPRC recommendations, like the inclusion of an accompanying skeleton bill declaration and a scrutiny reserve for the DPPRC that would ensure that such bills are fully justified. However, one of the recommendations that the Government did take on board was amending the Cabinet Office Guide to Making Legislation to include a more prescriptive list of acceptable delegations. Paragraph 15.3 explains the importance of justifying delegated powers from the perspective of parliamentary democracy. But the amended Guide stops short of explaining what matters are not appropriate for delegation. It gives one example of where delegations are “less appropriate”: “where a matter, though detailed goes to the heart of such a bill, such that Parliament ought to consider it as part of the policy story”. The Guide’s description of the right threshold between law and guidance is equally wanting. It merely states that “guidance should not be used to circumvent in the usual way of regulating” and that it should not “create rules that must be followed”. Again, no detail is given on what is not appropriate. 

These vague descriptions can be contrasted with the Australian Legislation Handbook, which provides a very slightly longer description of matters that are only appropriate for an Act of Parliament. Such matters include appropriations of money, significant questions of policy, or fundamental changes to existing policy and provisions which impose obligations on individuals or organisations to undertake certain activities. The examples are not contentious and should have been included in the Cabinet Office Guide as they reflect convention. 

3. Not Even Baby Steps 

Despite the disappointing nature of amendments to the Cabinet Office Guide, Democracy Denied has had a positive effect in guilt-tripping the Government to give more weight to the DPPRC’s recommendations on bills. This can be seen in the Government’s positive response rate over the 2022-2023 session. Before Brexit, there was a prevailing assumption that most DPPRC recommendations would be accepted by the Government. However, by the Committee’s own estimations the acceptance rate has dropped: it was as low as 30% in the 2019-2021 session and 40% in the 2021-2022 session. In the 2022-2023 session, there was some improvement: over 50% of DPRRC recommendations on delegated powers were met by the Government with a positive response. 

These positive responses concerned bills from across different departments, including the Schools Bill, the Online Safety Bill and the Levelling-up and Regeneration Bill. But this rise in positive responses is not something to celebrate; it shows baby-steps towards what should be the status quo. The first draft of the Schools Bill had been disappointing and had the led the Committee to remark that “no heed had been taken by the Government” of the concerns that were expressed in Democracy Denied. Amongst the amendments that were taken on board was the removal of a prospective Henry VIII power in s.3(2). This provision would have enabled the Secretary of State for Education to introduce regulations that would make any “relevant provision” apply to an Academy and these regulations would have been able to amend, repeal, or revoke “any provision”. The DPRRC’s objections were unequivocal: “There could be no clearer example… of Government taking wide delegated powers to make changes to important areas of social policy rather than set out the details in primary legislation.” Consequently, s.3 of the Bill was scrapped, and the Government introduced a narrower power to set academy standards. 

While the figures mentioned and this example shows that the DPRRC is being listened to, it is important to emphasise that this is not progress. There has been no pro-active attempt to exclude broad delegations, or even to define what delegated legislation should not be used for. These figures concern the rate of Government response to warnings given by the DPPRC against, again, pushing the threshold between primary and delegated legislation upward. 

According to the Committee, the legislation that was introduced over the last session had not respected constitutional standards in the first place. For example, the Energy Bill was such a lengthy example of skeleton legislation that the DPRRC had to publish three preliminary reports on it. This bill also continued the dangerous trend of “disguised legislation”: regulations created under section 178(3)-(5) would require heating zone coordinators to comply with requirements that would be set by the Heat Network Zones Authority outside of legislation. The Levelling Up and Regeneration Bill was another portmanteau bill which, in 375 pages, addressed, inter alia, planning, an infrastructure levy, environmental outcome reports, nutrient pollution standards and combined county authorities all in one go. Again, the Committee drew attention to the Bill on the basis that it enabled the use of “disguised legislation”. Section 128(1) conferred upon the Secretary of State the power to choose which local planning authorities would be included in the community land auction arrangement scheme by directions which were not subject to parliamentary scrutiny. 

In short, the bills that were introduced before the DPPRC over the last session did not strike the right balance between primary, delegated, and quasi-legislation right to begin with. It is misleading to say that there was progress because nearly all major Government bills had been found “wanting” when assessed against the standards set by Democracy Denied. The Government simply fixed some of its mistakes surrounding legislation that should have been better drafted in the first place. Thus, the Committee concluded that it was “unable to report the marked improvement” that it had hoped for. 

Tasneem Ghazi.

Tasneem is a PhD student at the UCL Faculty of Laws. Tasneem previously completed the Barrister Training Course while working part-time as a research assistant at the Constitution Unit. In 2021, she interned at the Institute for Government and at the UK in a Changing Europe. Tasneem holds an MA in History from King’s College London, and an LLB in Politics, Philosophy and Law. 

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

[1] Earl of Donoughmore, Report of the Committee on Ministers’ Powers (Cmd 4060, 1932) p.30

[2] ibid., p.31. The Committee seems to be claiming that exceptional delegations are not supposed to create a precedent. 

[3] ibid, p.53