In the highest degree, delegated and discretionary

By: Tasneem Ghazi

Although the pandemic has heightened the importance of delegated legislation in everyday policymaking, government reliance on delegated legislation has been on the rise for around a century. In 1921, Cecil Carr described the relationship between enabling powers and delegated legislation as ‘the child’ that now ‘dwarfs the parent’. However, over the last few decades there has been a significant change to the scope of delegated legislation. Regulations are no longer primarily used to flesh out policy details but are often used to execute wide-ranging, controversial policies. This piece reviews the changing face of delegated powers, with a specific focus on Henry VIII powers. It notes how this trend is continued by the Advanced Research and Invention Agency Bill 2021 that is currently before Parliament.

Sheer quantity

Since the mid-twentieth century, various factors have catalysed government reliance on delegated legislation. In the late 1940s, regulations facilitated the implementation of welfare state policies, including many proposals advanced by the post-war Beveridge Report. The next surge in delegated legislation followed Britain’s entry into the European Economic Community in 1972. Statutory instruments (‘SIs’), the most common form of delegated legislation, were used to ensure compliance between domestic law and European Community Directives. Indeed, between 1950 and 1980, around 2,000 instruments were created per year.  By 1992, the annual number of SIs created rose to 3,500. This figure has remained at around 3,000 to 5,000 SIs per year since.

Scope

Amidst the increasing time-pressures of politics and the consequent need for expediency, a rise in the volume of regulations has, to some extent, been inevitable. But the same cannot be said of the changing scope of delegated legislation. Instead of primarily targeting mundane or technical policy details, delegated legislation has been used to amend or create swathes of statute, and to implement new policies. This has often been facilitated by the increased use of Henry VIII (‘HVIII’) provisions: enabling powers that allow the rule-making authority (normally ministers or local government) to amend Acts of Parliament.

Broadly discretionary

As their despotic name suggests, HVIII powers have often been viewed with scepticism, and remained the exception, not least because they confer upon the rule-making authority (normally a member of the executive) the same legislating capabilities as Parliament. In the case of prospective HVIII provisions, these delegated powers bind the future law-making capacities of Parliament since regulations created by these provisions can only be expressly repealed through an Act of Parliament. Thus, the case against using HVIII powers – except in extreme cases, such as empowering a devolved legislature or ensuring compliance with ECHR rights – remains clear: these provisions undermine the central doctrine of legislative sovereignty, alongside the principle of executive accountability to Parliament (with parliamentary scrutiny of delegated legislation being notably imperfect).

As early as 1932, the Donoughmore Committee identified nine substantive HVIII provisions and issued a stern warning against their use. By 1989, the Rippon Commission complained of five provisions in the preceding session. In the 2010 session alone, Lord Judge noted the inclusion of around 100 HVIII provisions in draft bills. More recently, the Delegated Powers and Regulatory Reform Committee notes that the European Union (Withdrawal) Act 2018 contained ‘wider HVIII powers than we have ever seen’.

We can chart the rise of HVIII provisions and the normalisation of delegated legislation as a means to implement new policies over the last few decades by drawing attention to a handful of Acts, namely: The Deregulation and Contracting Out Act 1994, the Regulatory Reform Act 2006, the Public Bodies Act 2011, and the European Union (Withdrawal) Acts 2018 and 2020.  The fact that these Acts have been introduced by consecutive governments of different political affiliations – Conservative, Labour, Conservative-Liberal Democrat, then Conservative again – supports the argument that delegated powers have become a recognised expedient method of enacting policies, especially those that might be challenged or amended if included in a draft bill.

The Deregulation and Contracting Out Act 1994

In line with the Major government’s commitment to ‘hack through the jungle of red tape’, the Deregulation and Contracting Out Bill sought to minimise the regulatory state. Deregulation Orders would encompass everything from simplifying competition policy to enabling children over 14 to enter pubs. These orders granted ministers unprecedented powers to alter statute in line with general principles or criteria rather than by chapter and verse. The New Statesman described the bill as ‘regulatory tyranny’ since its powers facilitated the amendment of future Acts even if not expressly authorised. Eventually, the bill was modified to include a new strengthened form of parliamentary scrutiny over orders: the ‘super affirmative’ procedure.

The Regulatory Reform Act 2006

Similar powers were sought by New Labour with both Regulatory Reform Acts 2001 and 2006. In its original form, the Regulatory Reform Act 2006 was dubbed the ‘Abolition of Parliament Bill’. Clause 2 contained Henry VIII provisions for amending or repealing any legislation for the purpose of ‘reforming legislation’. The Constitution Committee denounced this provision in the strongest of terms due to its ‘lack of effective legal boundaries’. Writing to The Times, six Cambridge law Professors explained that via the delegated legislation created by this bill, the government could abolish jury trial, sack judges, rewrite the law on nationality and ‘reform’ Magna Carta. Once again, parliamentary uproar led to the bill’s amendment. Regulatory Orders became subject to another variation of the super-affirmative, with a duty for ministers to consider representations and recommendations of either House or of committees.

European Union (Withdrawal) Act 2018

Despite being supported by the more robust political justification of needing to ‘get Brexit done’, the European Union (Withdrawal) Act 2018, (‘EU(W)A’ 2018) contained unprecedently broad powers to create policy. As enacted, section 8 confers upon Ministers extensive powers to create regulations that they consider ‘appropriate’ for ‘any failure of retained EU law to operate effectively or any other deficiency in retained EU law’ arising from withdrawal. This provision relies entirely upon ministerial discretion. Whilst ‘retained EU Law’ seems like a limitation, this phrase was not exhaustively defined and may constitute Acts as EU-derived UK domestic legislation, EU regulations, tertiary legislation and rights, or even general principles of EU law. Thus, the 2018 Act implemented a transfer of power to the government to implement policies in a broad array of areas previously covered by EU law, with very few mechanisms of parliamentary scrutiny. Despite vehement opposition in the Lords, and the Delegated Powers and Regulatory Reform Committee noting section 8’s ‘width, novelty and uncertainty’, no binding control procedures were imposed. One limitation on these powers – the sunset clause allowing provisions to expire on exit day – was extended by the European Union (Withdrawal Agreement) Act 2020.

The Advanced Research and Invention Agency Bill 2021

More recently, little attention has been paid to the delegations of power in less apparently constitutional legislation, such as the Advanced Research and Invention Agency Bill (‘ARIA’). The ARIA bill sets the legal framework to launch a research agency ‘to support high risk, high reward science’ in a similar manner to the influential US’s Advanced Research Projects Agency (ARPA). As introduced, clauses 8 and 10 contain broad delegated powers: the former empowers the responsible Secretary of State to dissolve ARIA after a period of ten years, whilst the latter creates delegated powers to reform any other legislation for compatibility. Whilst the power contained in clause 8 seems to be constrained by a consultation duty under clause 8(2), this duty extends to consulting no more than the Agency itself, and anyone the Secretary ‘considers appropriate’.

Although consultation duties normally ensure an additional accountability mechanism, this provision demonstrates how they can be watered down by being placed on an almost entirely discretionary footing. Clause 10 goes even further: it is entirely discretionary, allowing the Secretary to amend or rewrite other legislation in line with any provision in the Act. In other words, through a prospective HVIII clause, the Secretary is essentially given discretionary powers to amend or repeal any Act passed within the same parliamentary session, or any retained direct EU legislation. This broad, discretionary power to rewrite legislation for the purposes of supporting a research agency seems disproportionate. Even though section 11 clarifies that most regulations created under these delegated powers would have to undergo the draft affirmative procedure – requiring the positive approval of both houses via a resolution – this is an insufficient check for the broad scope of ARIA’s discretionary powers. The ARIA bill may yet receive further opposition in the Lords – and could change. But as it stands, it supports the idea that rule-making powers are, in the highest degree, delegated and discretionary.

Conclusion

Over the years, some draft bills facilitating the extreme delegation of rule-making powers have received political pushback, and in the best of cases, stronger parliamentary controls. But strengthened scrutiny procedures (variations on the ‘super-affirmative procedure’) are rarely used. In the current political climate, where the initiation of a research agency may seem insignificant in comparison to some of the other pressing issues before Parliament, there is a particular risk that broad delegated powers will go unnoticed in the Commons and pass quite easily into legislation. This risk is exacerbated by the advent of proxy voting, and the recent suspension of digitalised voting. With nearly 600 votes being eligible for proxy, in theory, government whips are able to push almost any legislation through. It seems broad delegated powers are here to stay, no doubt because they are a fool-proof way of implementing controversial policies. The balance of legislative power has been tipped towards the executive, and due to opportunism in government, this imbalance is unlikely to be reversed anytime soon. Put simply, Parliament’s legislative sovereignty is increasingly constrained.

Tasneem Ghazi studied Politics, Philosophy and Law (LLB) at King’s College London and is completing an MA in Contemporary History and Politics.

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.