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.
What is delegated legislation? What is Parliament's role in it? And what is a 'Henry VIII' power? We answer your questions.
Delegated legislation is a form of law. It is one of two main types of legislation in the UK; the other is primary legislation (Acts of Parliament). Delegated legislation is also referred to as ‘secondary’ or ‘subordinate’ legislation.
In contrast to primary legislation, delegated legislation:
is made by Government Ministers, or sometimes other authorised individuals and bodies (not Parliament);
can only be made if Ministers (or other authorised individual and bodies) have been given a power to do so, usually in an Act of Parliament; and
is subject to judicial review.
Delegated legislation makes up most of the UK’s general public law.
Modern governance requires a large amount of legislation, which may often be technical and need speedy amendment or regular updating. Parliament does not have the time or capacity to legislate at the scale, pace or level of technical detail needed. Putting the required level of technical detail into Acts of Parliament would in any case make these much longer and harder to understand. Parliament therefore often establishes the framework of policy in Acts, and delegates the power to make more detailed legislation – within that framework – to Government Ministers and other executive individuals and bodies. Delegated legislation is very common and a necessary feature of modern governance. It becomes a problem only when it is used inappropriately.
Statutory Instruments (SIs) are the most common form of delegated legislation.
SIs are made by Ministers or other individuals or bodies who have been given a power to do so, usually in an Act of Parliament.
An SI is a legislative vehicle or ‘container’. It contains, and makes into law, the measures wanted by Ministers or other authorised bodies. These measures typically comprise Regulations, Orders or Rules.
A 'Henry VIII power' is a power in an Act of Parliament that allows Ministers to amend, repeal, or otherwise alter the effect of, primary legislation by delegated legislation.
A 'Henry VIII clause' is a clause in a Bill that contains a 'Henry VIII power'.
No, not necessarily.
Whether a power is a cause for concern depends on what it may be used for, not on whether it is a 'Henry VIII' power or not.
Some applications of 'Henry VIII powers' can be purely technical and anodyne. For example, in order to use delegated legislation to amend an Act of Parliament just to update a name or piece of terminology, a 'Henry VIII' power is required.
Other applications of 'Henry VIII powers' can have serious constitutional implications, as they may challenge the principle that Parliament is the sole legislative authority with power to create, amend or repeal any law.
Equally, some delegated powers that are not 'Henry VIII powers' can have significant constitutional implications, or may be used in ways that have major consequences for the everyday lives of large numbers of people.
Delegated legislation can only be made by using, and in accordance with, powers granted in an Act of Parliament (known as the ‘parent Act’). These powers specify which person or body can make the delegated legislation, what the legislation may or must do, any parliamentary scrutiny process to which it may be subject, and any other requirements that must be met in its making.
The delegated legislation system therefore has two main stages:
the delegation of powers in Acts of Parliament; and
the use of those powers by Ministers and other authorised bodies and individuals to make delegated legislation – most commonly Statutory Instruments (SIs).
Parliament has a role in the first and often also the second stage of the system:
Parliament passes the Acts that delegate powers; and
Parliament scrutinises, and sometimes must approve, many of the SIs that Ministers make using those powers.
There are four main parliamentary scrutiny procedures for Statutory Instruments (SIs):
‘Draft negative’: The SI is laid before Parliament in draft. If Parliament does not reject the SI within 40 days, it is deemed to have consented and the Minister can make the SI into law (by signing it). In the House of Commons, there is no guarantee that a debate and vote to reject a ‘draft negative’ SI will be scheduled within the 40 days. ‘Draft negative’ SIs are rare.
‘Made negative’: The SI is laid before Parliament after it is made into law by the Minister. If Parliament does not reject the SI within 40 days, it is deemed to have consented. In the House of Commons, there is no guarantee that a debate and vote to reject a ‘made negative’ SI will be scheduled within the 40 days. ‘Made negative’ SIs are by far the largest group of SIs, usually making up around two-thirds of those laid before Parliament.
‘Draft affirmative’: The SI is laid before Parliament in draft. The Minister cannot make (sign) it into law unless and until it has received active parliamentary approval, following debate, in the House of Commons and usually also the House of Lords. In the House of Commons, ‘draft affirmative’ SIs are normally debated in a Delegated Legislation Committee (DLC), although the debate may instead take place in the Chamber. The ‘draft affirmative’ process normally takes 4-6 weeks. ‘Draft affirmative’ SIs normally make up around 20-25% of all SIs laid before Parliament.
‘Made affirmative’: The SI is laid before Parliament after it is made into law by the Minister. The House of Commons and usually also the House of Lords must then actively approve the SI, following debate, within a statutory period (usually 28 or 40 days) for the SI to remain law. In the House of Commons, ‘made affirmative’ SIs are normally debated in a Delegated Legislation Committee (DLC), although the debate may instead take place in the Chamber. ‘Made affirmative’ SIs are usually reserved for ‘urgent’ circumstances and are normally relatively rare.
'Made' SIs may come into force as soon as they are made (signed) by the Minister. However, there is a convention that 'made negative' SIs are laid before Parliament at least 21 calendar days before they come into force.
In addition to these four main procedures, there is a range of ‘strengthened’ scrutiny procedures. These are applied to SIs which are made using powers for which the regular scrutiny procedures were deemed inadequate.
In calculating scrutiny periods for SIs, normally the clock is stopped for periods when Parliament is prorogued or dissolved, or adjourned for more than four days.
This depends on the scrutiny procedure that the parent Act of Parliament prescribes for the Statutory Instrument (SI) in question.
If the SI is subject to the ‘negative’ procedure, it does not require active parliamentary approval. If the SI is subject to the ‘affirmative’ procedure, it must be debated and approved by the House of Commons and usually also the House of Lords.
In the House of Commons, SIs are usually debated in a Delegated Legislation Committee (DLC), but they may instead be debated in the Chamber. The government decides where the debate takes place. If an ‘affirmative’ SI is debated in a DLC, it must still then be approved by the whole House.
No – with only a very few exceptions.
Parliament cannot amend Statutory Instruments (SIs) because SIs are made by Ministers or other authorised individuals or executive bodies, not Parliament.
As of June 2022, only 16 SIs have been rejected since 1950 (11 by the House of Commons, and five by the House of Lords). No SI has been rejected by the House of Commons since 1979.
There are dedicated parliamentary scrutiny committees at both stages of the delegated legislation process:
1. Delegated powers in Bills are scrutinised by the:
2. Statutory Instruments (SIs) are scrutinised by the:
Joint Committee on Statutory Instruments (JCSI) (and, for House of Commons-only SIs, the House of Commons Select Committee on Statutory Instruments); and the
House of Lords Secondary Legislation Scrutiny Committee (SLSC).
In addition, ‘affirmative’ SIs must be debated, before the relevant House is asked to approve them. In the House of Commons, debates on ‘affirmative’ SIs normally take place in Delegated Legislation Committees (DLCs), although they may instead take place in the Chamber. A DLC is a temporary committee of MPs set up to scrutinise an individual SI (or group of SIs). Other Committees, including the House of Commons European Statutory Instruments Committee (ESIC), the Business, Energy and Industrial Strategy (BEIS) Committee and the Joint Committee on Human Rights (JCHR), also have scrutiny roles for particular (relatively rare) types of SI.
There are three types of period when one or both Houses does not sit:
recess (properly known as a 'periodic adjournment'), which each House may take separately;
Prorogation, which applies to both Houses; and
Dissolution, which applies to both Houses.
The handling of Statutory Instruments (SIs) when Parliament is not sitting depends on the scrutiny procedure set out in the parent Act, the type of non-sitting period, and whether an SI was already laid before Parliament before the start of the non-sitting period.
The effects of different types of parliamentary non-sitting periods on Statutory Instruments (SIs) and SI-related business
|What happens to ?||During Adjournment||During Prorogation||During Dissolution|
|...SIs already laid before Parliament before the start of the non-sitting period||Remain laid||Remain laid||Remain laid|
|...Motions about SIs already tabled before the start of the non-sitting period||Remain tabled||Fall||Fall|
|...SIs not laid before Parliament before the start of the non-sitting period|
|'Made' SIs:||May be made and laid||May be made and laid||May be made; cannot be laid|
|Draft SIs:||Cannot be laid||Cannot be laid||Cannot be laid|
|....The countdown to the end of statutory scrutiny periods for SIs||If the adjournment is longer than four days, normally suspended||Normally suspended||Normally suspended|
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.
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