Publications / Briefings

The Health and Care Bill: Delegated Powers

3 Sep 2021

Ahead of the Health and Care Bill’s Committee stage in the House of Commons, this briefing paper focuses on five clauses in the Bill that contain delegated powers that are of particular concern and that highlight different aspects of the problems with the system of delegated powers.

Dheemanth Vangimalla , Researcher, Hansard Society
,
Researcher, Hansard Society

Dheemanth Vangimalla

Dheemanth Vangimalla
Researcher, Hansard Society

Dheemanth joined the Hansard Society in July 2021 as a Researcher to contribute to the Review of Delegated Legislation. His role also involves supporting the day-to-day delivery of the Society’s legislative monitoring service, the Statutory Instrument Tracker®.

Dheemanth has a diverse professional background that includes experience in both the legal and non-legal sectors. He completed his MBBS degree at the University of East Anglia. He has since attained a Graduate Diploma in Law (GDL) while working full-time as a junior doctor at an NHS hospital trust. He has previously conducted legal research with the hospital’s legal services department. As a research assistant, he has also contributed to a public international law project concerning citizenship and statelessness. Additionally, he has experience conducting scientific and laboratory-based research during his BMedSci degree in Molecular Therapeutics at Queen Mary University of London.

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

While the delegated powers in the Health and Care Bill might appear to be merely technical matters, in this as in most bills they raise important questions of constitutional, legal and procedural principle that matter, regardless of party allegiance or views on the policy merits of the bill. The scope and design of the delegation of power sought in any bill raise important questions for MPs that go to the heart of their role as legislators. For example:

  • To what extent are MPs willing to continue accepting the troubling arrogation of power by the executive (by successive governments) at the expense of Parliament?

  • What scrutiny or other safeguards do Members think are desirable or necessary to constrain use of delegated powers? Given the inadequacy of scrutiny procedures that apply to delegated legislation in the House of Commons, can they really remedy a delegation of legislative power otherwise deemed unacceptable?

  • If Parliament accepts controversial powers in a bill, it creates a precedent that may be used by government to justify taking similar powers in other bills in the future. However, if Parliament has reluctantly accepted a power in exceptional circumstances - for example, during the Brexit process when there was a need to legislate at speed - are MPs content for Ministers to rely on that precedent for the establishment of new powers?

  • The inclusion of ‘Henry VIII powers’ enabling Ministers to amend or repeal primary legislation by Statutory Instrument challenges the constitutional principle that Parliament is sovereign; that it is the sole legislative authority with the power to create, amend or repeal any law. How content are MPs for such powers to continue to be a relatively common feature of the law?

  • How much discretion do MPs think should be conferred on Ministers by the legislature? Ministers may use broadly defined and ambiguously worded powers in ways that that go beyond the original intention of the legislation. How content are MPs that such powers continue to be claimed by the executive, particularly when in many instances such powers will be available to Ministers in future governments of a different political stripe, possibly decades later, and may therefore be used by Ministers with radically different policy objectives from those who sought the powers in the first place?

  • Do MPs think that government should be granted ‘reserve’ or ‘holding’ powers, the use of which is not fully explained or defined, simply because it is administratively convenient or because Ministers may desire freedom to act at a later date? Are MPs content that Ministerial claims of exigency and convenience should trump parliamentary scrutiny?

  • When Ministers acknowledge that the relevant policy development process - particularly the consultation stage - is unfinished, should they nonetheless be granted powers to act in that area of policy?

If MPs are solicitous of the proper role and function of Parliament and their responsibilities as legislators, then the answers to these questions should inform the debate about the scope of, and safeguards applied to, each clause in a bill that contains a proposed delegation of power. Changes which tighten the use of powers, limit the extent of discretion, incorporate scrutiny safeguards, or resist the gravitational pull of precedent, are designed to buttress the role of Parliament in scrutinising future executive action and regulations; they need not interfere with or prevent the implementation of the intended policy.

The briefing falls into two main parts:

  • The first, after an overview of the Bill, summarises our key thematic concerns about some of the delegated powers in the Health and Care Bill.

  • The second provides a detailed analysis of the clauses of concern, drawing on the Bill and the Explanatory Notes and Delegated Powers Memorandum (DPM) that accompany the legislation.

The five clauses of concern are:

  • Clause 14 - People for whom Integrated Care Boards have core responsibility

  • Clause 68 - Procurement regulations

  • Clause 87 - Power to transfer functions between bodies

  • Clause 120 - International healthcare arrangements

  • Clause 125 - Advertising of less healthy food and drink

Our analysis draws heavily on ‘legislative standards’ which we have derived from reports of the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC). The DPRRC is an influential committee and provides the nearest thing to a form of ‘jurisprudence’ (or ‘legisprudence’) in the area of delegated powers.

Vagimalla, D. (2022) The Health and Care Bill: Delegated Powers (London: Hansard Society)

Who funds this work?

This work is supported by the Legal Education Foundation as part of the Hansard Society's Delegated Legislation Review.

News / What happens when you lose the party whip? A conversation with Neil Duncan-Jordan MP - Parliament Matters podcast, Episode 131

Labour MP Neil Duncan-Jordan reflects on rebelling against the whip and calling for Keir Starmer to resign, as we assess the fallout from the Mandelson–Epstein affair and its implications for the Government’s legislative programme and House of Lords reform. We examine Gordon Brown’s sweeping standards proposals, question whether they would restore public trust, revisit tensions over the assisted dying bill in the Lord and discuss two key Procedure Committee reports on Commons debates and internal elections. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS

13 Feb 2026
Read more

Blog / Once again, there is still no alternative: the costed proposals for Restoration and Renewal of the Palace of Westminster

The Restoration and Renewal Client Board’s latest report once again confirms what Parliament has known for nearly a decade: the cheapest, quickest and safest way to restore the Palace of Westminster is for MPs and Peers to move out during the works. The “full decant” option was endorsed in 2018 and reaffirmed repeatedly since. Remaining in the building could more than double costs, extend works into the 2080s, and increase risks to safety, accessibility and security. With the Palace already deteriorating and millions spent each year on patchwork repairs, further delay would itself be an expensive course of action, one that defers decisions without offering a viable alternative.

07 Feb 2026
Read more

News / Are UK elections under threat? A conversation with the chair of the Electoral Commission, John Pullinger - Parliament Matters podcast, Episode 123

With the Government investigating allegations of foreign influence in British politics, we are joined by John Pullinger, Chair of the Electoral Commission, to take stock of the health and resilience of the UK’s electoral system. Our discussion ranges widely over the pressures facing elections and campaigning today, and what issues Parliament may need to grapple with in a future elections bill.

09 Jan 2026
Read more

News / Is being Prime Minister an impossible job? - Parliament Matters podcast, Episode 121

Why do UK Prime Ministers seem to burn out so quickly? We are joined by historian Robert Saunders to examine why the role has become so punishing in recent years. From Brexit and COVID to fractured parties, rigid governing conventions and relentless media scrutiny, the discussion explores what has gone wrong – and what kind of leadership and political culture might be needed to make the job survivable again.

23 Dec 2025
Read more

News / Why MPs can’t just quit: The curious case of the Chiltern Hundreds - Parliament Matters podcast, Episode 129

Why can’t MPs simply resign, and why does leaving the House of Commons still involve a medieval-sounding detour via the Chiltern Hundreds or its less glamorous cousin the Manor of Northstead? This week we unravel the history, constitutional logic and legal fudges behind this curious workaround, with some memorable resignations from the past along the way. We also assess the Government’s legislative programme as the Session heads toward its expected May close, including the striking lack of bills published for pre-legislative scrutiny. Finally, as Parliament begins the five-yearly process of renewing consent for the UK’s armed forces, we examine why an Armed Forces Bill is required and hear from Jayne Kirkham MP on how her Ten Minute Rule Bill helped extend the new Armed Forces Commissioner’s oversight to the Royal Fleet Auxiliary. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS

01 Feb 2026
Read more