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 Bulletin: What’s coming up in Parliament this week? 16-20 March 2026

The Defence Secretary, John Healey, will face questions from MPs. The Grenfell Tower (Memorial Expenditure) Bill and the Ministerial Salaries (Amendment) Bill will be fast-tracked through all their Commons stages in a single day. MPs will debate online safety, an e-petition calling for automatic by-elections when MPs defect to another party, and the Conservative Party will choose the Opposition Day debate. The Justice Committee will hear from the Victims’ Commissioner on the Courts and Tribunals Bill, the Public Accounts Committee will question officials about the Restoration and Renewal of the Palace of Westminster, and experts will give evidence on the Representation of the People Bill. In the Lords, Peers will continue scrutiny of the Crime and Policing, Pensions Schemes, and Finance (No. 2) Bills. Lord Arbuthnot will ask about Fujitsu contributing to compensation in the Post Office Horizon case, and Peers will debate terrorism, abortion, AI, and assisted dying.

15 Mar 2026
Read more

News / Jury trials under threat? The Courts and Tribunals Bill explained - Parliament Matters podcast, Episode 136

Plans to restrict the right to a jury trial have cleared their Second Reading in the Commons, but the proposals in the Courts and Tribunals Bill face growing resistance, including from Labour rebels. We discuss the legal and constitutional implications with barrister Lord Macdonald of River Glaven, examining what the reforms could mean for defendants’ rights and the criminal courts system. We also assess the passage of legislation removing hereditary Peers from Parliament, and the late compromise that eased opposition in the House of Lords. Meanwhile Sir Lindsay Hoyle clashes with the Chief Whip over delays in the division lobby, and newly released papers on Peter Mandelson’s Washington appointment raise fresh political questions. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS

13 Mar 2026
Read more

Briefings / Last-minute powers and limited scrutiny: Parliament and the risks of consigning online safety law to delegated legislation

Two late-stage government amendments to the Crime and Policing Bill and the Children’s Wellbeing and Schools Bill would grant Ministers significant powers to reshape key parts of the Online Safety Act through delegated legislation. While the policy goals may attract support, the method raises serious constitutional concerns about parliamentary scrutiny and accountability. Using these amendments as a case study, this briefing explores the risks of relying on regulations to make policy and explains how the Hansard Society’s proposed reforms to the delegated legislation scrutiny system could better balance governmental flexibility with democratic oversight.

09 Mar 2026
Read more

News / Is the assisted dying bill being filibustered? - Parliament Matters podcast, Episode 135

Debate over the Terminally Ill Adults (End of Life) Bill has been so slow in the House of Lords that opponents of the Bill are accused of deliberately running down the clock. Conservative Peer Lord Harper rejects claims of filibustering, arguing that Peers are undertaking necessary scrutiny of a flawed and complex bill. He contends the legislation lacks adequate safeguards and was unsuited to the Private Member’s Bill process and discusses whether MPs might attempt to revive it in a future parliamentary Session. Listen and subscribe: Apple Podcasts · Spotify · Acast · YouTube · Other apps · RSS

10 Mar 2026
Read more

Blog / The Backbench Business Committee 15 years on: Has it given backbench MPs a stronger voice in the House of Commons?

Fifteen years after its creation, the Backbench Business Committee has become an important mechanism through which MPs can secure debates and raise issues in the House of Commons. Drawing on new research analysing debate transcripts and interviews with MPs, Ministers and officials, this blogpost analyses the Committee’s impact on parliamentary agenda-setting and cross-party campaigning. It highlights how the Committee has transformed opportunities for backbenchers while identifying ongoing challenges around participation, transparency and the Committee’s potential role in representing backbench interests more broadly.

07 Mar 2026
Read more