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 / Parliament Matters – Legislative bodging: No way to run a chip shop! (Episode 6)

Mark and Ruth look at the growing fashion for re-writing Bills mid-air as they pass through Parliament, adding on all sorts of policy bells and whistles at the last minute.

24 Nov 2023
Read more

Publications / Delegated Legislation: What types are there, and how are they made?

Delegated legislation is the most common form of legislation in the United Kingdom. It is the legislation of everyday life, impacting millions of citizens daily. But the terminology and procedures that surround it are complex and often confusing. This explainer unpacks delegated legislation - the terminology and Parliament's role in scrutinising it - to reveal more about how delegated legislation really works.

05 Dec 2023
Read more

News / Parliament Matters: Total reshuffle, emergency legislation and Parliament’s ‘Golden Ticket’ (Episode 4)

What a week! Suella Braverman's sacking from Government was immediately eclipsed by the appointment of former Prime Minister David Cameron as the new Foreign Secretary. Mark and Ruth explore the many questions this raises, not least for scrutiny of foreign affairs by MPs.

17 Nov 2023
Read more

Blog / HS2 fiasco: What does it mean for Parliament?

The Prime Minister’s decision to cancel the next stage of HS2 has given rise to criticism that once again the Government has ridden roughshod over Parliament. Just over 1,300 hours of legislative time have been spent on four HS2-related Bills over nine Sessions in the last decade. Why has it taken so long and what now happens to that legislation?

15 Oct 2023
Read more

Briefings / 6 things to look out for in Parliament in the next Session

When parliamentarians reassemble at Westminster on 7 November for the start of the new Session, all eyes will be on the legislative programme to be announced in the King’s Speech. Speculation about the likely date of the next general election is rife at Westminster, but until the date is settled there are a lot of parliamentary issues still to be tackled. We’ve picked out a few things to look out for on the political horizon.

07 Nov 2023
Read more