Our evidence to the Committee was submitted on XXX. The Committee has published an analysis of the evidence it received, which includes a number of references to our evidence.

Framework or “skeleton” legislation refers to bills that contain powers rather than policy – where the substance of the Bill is deferred, to be determined later through delegated (or secondary or subordinate) legislation made by Ministers rather than by Parliament.

In its ‘Guidance for Departments’ [1], the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) defines framework legislation as provisions that are so minimal on the bill's face that the Act’s true function is shaped entirely through the regulations or orders created under it.

In 2015 the DPRRC said the Childcare Bill “contains virtually nothing of substance beyond the vague ‘mission statement’” in Clause 1 [2]. The Committee similarly judged that the 2018 Haulage Permits and Trailer Registration Bill was “wholly skeletal, more of a mission statement than legislation” [3].

The DPRRC highlighted the constitutional problem this poses in its November 2021 report, ‘Democracy Denied?’ [4]. The report said framework legislation signified “an exceptional shift in power from Parliament to the executive and entails the Government, in effect, asking Parliament to pass primary legislation which is so insubstantial that it leaves the real operation of the legislation to be decided by Ministers.”

Our research suggests that Ministers adopt framework legislation for reasons such as administrative convenience, incomplete policy formation, or to retain the greatest flexibility to make decisions at a later date. However, the powers conferred on Ministers by this approach limit effective scrutiny, as the resulting Statutory Instruments are subject to little, if any, parliamentary oversight.

Each instance of framework legislation establishes a precedent, contributing to a “ratchet” effect. When Parliament approves a framework bill, it becomes politically easier for future governments to justify similar bills. Over time, this leads to a normalisation effect, gradually making framework bills a routine legislative tool – unless action is taken to curb this trend.

Framework legislation can also pose a political risk because the powers in a Bill may be used by a future Minister – potentially decades later – in ways that Parliament may not have anticipated at the time it granted them. Such powers, unless explicitly constrained on the face of the Bill, may be used by Ministers of a different political stripe, in a different political and policy environment, potentially decades after the powers were sought in the first place.

In a joint letter published in September 2020 [5], the Chairs of three House of Lords Committees emphasised this concern: “Without substantive provision on the face of the Bill, Parliament is being asked to pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it.”

If the scrutiny process for Statutory Instruments were more robust, concerns surrounding framework legislation would be less troubling. Parliament could then confidently grant powers to Ministers, knowing that any subsequent regulations made under those powers would face rigorous oversight. However, the reality is quite the opposite: Ministers gain extensive powers to legislate later, fully aware that the scrutiny process provides minimal challenge or accountability.

In 2022 the Hansard Society published a Compendium of Legislative Standards for Delegating Powers in Primary Legislation (‘Compendium’) derived from analysis of the work of the House of Lords Delegated Powers and Regulatory Reform Committee across three parliamentary Sessions (2017-19, 2019 and 2019-21) [6]. The DPRRC concluded in numerous reports that skeleton legislation inhibits proper parliamentary scrutiny, and that it was difficult to envisage any circumstances in which its use is acceptable. If the Government insisted on the use of framework legislation, then Ministers must provide an “exceptional justification” for it.

However, in practice the DPRRC has, on occasion, found some framework legislation to be justified in circumstances where Ministers are seeking to ‘future proof’ their policy objectives through the extensive use of delegated powers in bills. In 2018, for example, it concluded that the Government’s approach to the Automated and Electric Vehicles Bill – in which Part 2 of the Bill consisted solely of delegated powers to enable Ministers through regulations to make provision for charging points for electric vehicles – was justified [7]. Ministers argued that the relative novelty of electric vehicle charging technology meant that it was not clear what areas of regulation (if any) would be required or what the nature of the regulation would be, and that there would be a need to intervene quickly to address unexpected market failures. Nonetheless, the DPRRC recommended some tightening of the definitions on the face of the Bill concerning who would be subject to the regulations and that some of the powers should be constrained.

In 2018 the Haulage Permits and Trailer Registration Bill was unavoidably a framework bill because the Government needed to legislate to establish a system of permits for UK vehicles transporting goods internationally and the system needed to be in place immediately after the UK left the EU. However, at the time the Bill was introduced it had not yet been determined how the post-Brexit haulage system would operate as this was subject to the outcome of ongoing negotiations with the European Union. As Baroness Sugg, the minister responsible for the bill in the House of Lords, explained, “the Bill is designed to provide a flexible framework for any system that may be needed.”[8]

More recently, in 2021, in oral evidence to the DPRRC, the then Leader of the House of Commons, Jacob Rees-Mogg MP, and First Parliamentary Counsel, Dame Elizabeth Gardner suggested the Cities and Local Government Devolution Bill was an example of when a framework bill (in Dame Elizabeth’s words) was “probably the only possible solution”[9]. The justification for the framework provisions was that devolution settlements were being agreed on a bottom-up basis, rather than through a universal top-down scheme, and it was impossible to legislate in advance for the powers and governance arrangements that would be agreed with the authorities.

Our research, alongside insights from relevant House of Lords Committees, suggests that while framework bills should remain exceptional, there are scenarios where they may be justified. In rapidly evolving fields like technology, artificial intelligence, science, and medicine - or where policy outcomes depend on ongoing negotiations but require swift implementation - such bills can occasionally be necessary, especially given the absence of a more agile, iterative legislative process.

In such circumstances the factors that could be used to assess the appropriateness of the delegation of powers, or how such powers might be constrained, include whether:

• the Government has explicitly drawn attention to the fact that the provisions are skeleton/framework legislation;

• the Government has provided a full and adequate explanation of what exceptional circumstances are involved;

• the Government has provided a full and adequate explanation of why no other approach, including primary legislation, could reasonably be adopted;

• the scope of the skeleton/framework provision is constrained on the face of the bill as far as possible;

• an initial set of provisions have been included on the face of the bill with an accompanying power to update the legislation if necessary;

• there are adequate scrutiny processes that future regulations made under the skeleton/framework provisions would be subject to; and

• draft regulations, or other indications of how the powers may be used, are provided along with the bill.

Where the conditions for appropriateness outlined above are not met, the use of framework legislation will usually be inappropriate.

Often a problem with framework legislation is that Ministers assert that certain policy matters are not appropriate for primary legislation and should be reserved for regulations, without explaining why they have reached this conclusion or providing evidence to support their assertion.

As the DPRRC noted in relation to the Medicines and Medical Devices Bill [10], while it accepted that the need for frequent updates to legislation can sometimes justify the deferring of policy detail to regulations rather than being set out in primary legislation, the Government’s Delegated Powers Memorandum simply “asserts that ‘the approach proposed is necessary and justified’”. Rather than seeking to justify that approach, “it instead presents a false dichotomy by suggesting that the only alternative to the approach it has taken (that is, a “skeleton” part of a Bill) is to have every detail of the regulatory regimes in primary legislation.”

Similarly, as the DPRRC noted in relation to the Strikes (Minimum Service Levels) Bill [11], the Government was of the view that the detail required to set the level of service for each relevant service was “not appropriate for primary legislation”. However, this was asserted rather than justified and evidenced. Parliament “is not allergic to matters of detail, particularly where it relates to an important matter such as the right to strike”, the Committee admonished Ministers.

Administrative convenience and political expediency – particularly when this is related to a weak or truncated policy formulation and consultation process - are particularly poor justifications for the use of framework legislation given its constitutional implications for scrutiny and the balance of power between the legislature and the executive. Our research has found that framework bills sometimes arise due to conflicts between government departments, which can delay reaching cross-government agreement on policy details. As a result, when deadlines approach for a bill's scheduled slot in the legislative program, a framework bill may be introduced as a compromise to meet timing demands.

There is a particular risk of framework legislation in the first Session of a Parliament in which there is a newly elected government. Ministers are under pressure to convey speed of action, implementation and delivery to fulfil their election pledges during their early days in office. This can currently be seen at Westminster in the presentation of the framework Employment Rights Bill within 100-days of the Labour Government taking office. But rushing the policy development and drafting of the Bill to meet an unrealistic, self-imposed 100-day deadline is not an acceptable reason for Ministers to take powers for themselves (and their successors) to legislate at a later date - especially through a process that allows for less parliamentary scrutiny than primary legislation.

It is difficult to scrutinise the policy aspects of framework legislation, since there is insufficient policy detail included on the face of the bill to enable parliamentarians to understand how the policy related to the delegated power will operate and be implemented in practice. This difficulty is compounded if the Government fails to provide a convincing justification for leaving the real operation and detail of the policy to delegated legislation, including an explanation as to why no other approach could reasonably be adopted.

In 2018, the DPRRC was damning in its criticism of the Agriculture Bill and the scrutiny challenge facing MPs and Peers: “Parliament will not be able to debate the merits of the new agriculture regime because the Bill does not contain even an outline of the substantive law that will replace the CAP after the United Kingdom leaves the EU. Most debate will centre on delegated powers because most of the Bill is about delegated powers. At this stage it cannot even be said that the devil is in the detail, because the Bill contains so little detail”. [12]

In our 2014 study of parliamentary scrutiny of delegated legislation we researched a number of legislative case studies, interviewing drafters, bill team members and parliamentarians.[13] One of the case studies was the Welfare Reform Act 2011 which was described by an MP at the time as “skeletal in the extreme”. One MP, at Committee stage in the House of Commons, was incensed: “We simply do not know a lot of crucial details about the new system, and those details will determine whether people are better off in or out of work.” In the absence of policy detail, the engagement of members through the scrutiny process declined and although the government made some concessions, this was not enough to offset the scrutiny difficulties parliamentarians encountered.

Our Delegated Legislation Review published a Working Paper last year setting out our initial proposals for reform of the delegated legislation system [14]. Several of the proposals are pertinent to improving the scrutiny of framework legislation.

We propose that a ‘Concordat on Legislative Delegation’ should be negotiated between Parliament and Government to reset the boundary between primary and delegated legislation. This should include a set of ‘Principles of Legislative Practice’ for the preparation, drafting and scrutiny of delegated powers and Statutory instruments, and a list of ‘Criteria on the Use of Delegated Legislation’, setting out matters that should not be included in delegated legislation. If a bill was presented containing provisions that Parliament deemed incompatible with the Concordat, then these powers, and the subsequent regulations laid under them after Royal Assent, could be subject to additional scrutiny.

The DPRRC and SLSC have made similar suggestions to introduce safeguards to improve the scrutiny of framework legislation, including: • A requirement for the Government to make an explicit statement (a ‘skeleton legislation declaration’) that the bill is a skeleton bill or contains skeleton clauses, accompanied by a full justification for the use of a skeleton approach. [15] • A role for the Speakers of the two Houses in adjudicating whether a bill, or its clauses, are skeleton legislation. [16] • A requirement for enhanced scrutiny procedures (such as a ‘super-affirmative procedure’) to apply to the exercise of powers conferred under skeleton legislation. The DPRRC suggests that this could be implemented by an amendment to the Statutory Instruments Act 1946. [17] • Longer minimum intervals between stages of bills for skeleton bills, or bills with skeleton clauses. [18] • A requirement for the exercise of powers under skeleton legislation to be subject to a consultation requirement, with a Minister required to report the results of the consultations to Parliament as well as how the consultation has been taken into account. [19] [14] Hansard Society (2023), Proposals for a New System for Delegated Legislation: A Working Paper [15] DPRRC, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive - Twelfth Report of Session 2021-22, paras. 66-70, and SLSC, Government by Diktat – A call to return power to Parliament – Twentieth Report of Session 2021-22, para. 35 [16] SLSC, Government by Diktat – A call to return power to Parliament – Twentieth Report of Session 2021-22, para. 37 [17] DPRRC, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive - Twelfth Report of Session 2021-22, paras. 72-74, and SLSC, Government by Diktat – A call to return power to Parliament – Twentieth Report of Session 2021-22, para. 41 [18] DPRRC, Democracy Denied? The urgent need to rebalance power between Parliament and the Executive - Twelfth Report of Session 2021-22, paras. 72-74 [19] SLSC, Government by Diktat – A call to return power to Parliament – Twentieth Report of Session 2021-22, para. 41

Our Working Paper identifies five broad problems with the parliamentary scrutiny system for delegated legislation: (1) There is no sensible correlation between the content or significance of an SI and the rigour of its scrutiny procedure. (2) Scrutiny is often superficial, because of inadequate procedures and a lack of expert resource, particularly in the House of Commons. (3) Parliament is unable to amend SIs and are instead offered a simple ‘take it or leave it’ motion. (4) The Government tightly controls the House of Commons agenda. (5) The scrutiny system is confusing and overly complex. Our provisional recommendations are that the scrutiny system for SIs at Westminster should be significantly reformed and the current arrangements replaced with an almost entirely new scrutiny process. Some of the key features most relevant to consideration of framework legislation are set out below. • The existing scrutiny procedures (‘negative’, ‘affirmative’, and various ‘strengthened’ procedures) should be abolished. In the long-term this would require amendment of the Statutory Instruments Act but in the short-term could be achieved by, for example, the inclusion of a “not withstanding the provisions of the Statutory Instruments Act” clause in all future bills. • At present approximately two-thirds of SIs are signed into law before being laid before Parliament. We propose that all SIs would be laid in draft, other than in exceptional circumstances • All SIs should be analysed by a new Parliamentary Office for Statutory Instruments (POSI). POSI would be a joint department of both Houses of Parliament tasked with analysing and producing briefings on SIs for MPs and Peers. • The SIs should be sifted by a new Joint Secondary Legislation Scrutiny (JSLSC) Committee, to identify those SIs that require further scrutiny and approval by Parliament. The majority of SIs would be sifted to Group A, raising no issues of legal, policy, drafting or procedural importance. The Government would be able to make these SIs into law immediately once the sifting process is complete. A smaller share of SIs would be sifted to Group B, meriting further scrutiny because they raise legal or political issues likely to be of interest to Members. The Joint Committee would be able to delay Parliament’s approval of an SI where the POSI finds that important information and/or supporting documentation has not been provided by Ministers. • In the House of Commons, a set of permanent Regulatory Scrutiny Committees (RSC) should be established to scrutinise, debate – and in some circumstances - approve SIs sifted into Group B. These should replace House of Commons Delegated Legislation Committees (DLCs). RSC scrutiny should not be limited to formal debates on SIs; the Committees could tailor the nature of their scrutiny to the concerns raised by the content of the Instrument. For example, the Committees could hold Q&A sessions with the Minister, officials or stakeholders. RSC debates would be held on an amendable substantive motion (not the toothless “take note” motion used by DLCs). RSC members would be supported by a permanent staff drawn from the Parliamentary Office for Statutory Instruments. • In the House of Commons, rather than direct textual amendment of an SI (which would present several practical difficulties), MPs should be able to table amendments to SI approval motions debated in the Commons. These amendments would outline in narrative form the Members’ concerns with the SI that must be addressed before the SI is made into law. In the House of Lords, a new ‘think again’ procedure would be introduced so that Peers can ask the House of Commons to consider their concerns before an SI is approved. • An inter-parliamentary working group should be established comprising Members and officials of each of the five legislative Chambers and four executives in the UK, to negotiate an agreement about the conditions relating to consultation, timing and consent under which a UK Minister can lay and/or make an SI in areas of devolved competence. These proposals have been subject to a stakeholder consultation and our final recommendations - which will not diverge much from what is set out above - will be published early in 2025.

A ‘Henry VIII power’ is a delegated power in an Act of Parliament that enables Ministers to amend, repeal or otherwise alter the effect of primary legislation by delegated legislation. The use of such powers challenges the constitutional principle that Parliament is the sole legislative authority with the power to create, amend or repeal any law. ‘Henry VIII powers’ are now a relatively common feature of Acts of Parliament. Some ‘Henry VIII powers’ can be anodyne in their application. The Welfare Reform Act 2012, for example, abolished several benefits and replaced them with a new Universal Credit system. Parliament assented to the policy change in the 2012 Act, but amendments to other previous welfare-related Acts were needed so that these correctly referenced Universal Credit instead of the benefits that had been abolished. Using a ‘Henry VIII power’ in the 2012 Act, Ministers introduced The Universal Credit (Consequential, Supplementary, Incidental and Miscellaneous Provisions) Regulations 2013 which amended 18 previous Acts of Parliament relating to welfare. Other ‘Henry VIII powers’ can have serious constitutional implications. They call into question the purpose of Parliament’s scrutiny of Bills. One particular area of concern is the now-routine inclusion of a power for Ministers to give effect to an Act by making supplementary provision through Statutory Instruments, including the power to amend the Act itself. Such powers grant Ministers the freedom to decide what they consider is necessary to give full effect to an Act and then to alter the detail of the Act accordingly, including by amending what Parliament has previously enacted. Such ‘Henry VIII powers’ are particularly worrisome as they lower the bar on legislative standards. Henry VIII powers to make incidental or consequential amendments to primary legislation can be controversial because they may have much wider and more substantive policy implications than the terms ‘incidental’ or ‘consequential’ would imply. For example, the Illegal Migration Act 2023 (Amendment) Regulations 2024 amended the date specified in section 3 of the Illegal Migration Act 2023 from which the ‘duty to remove’ asylum seekers who entered the UK illegally would apply, with the intention of removing its retrospective application. The Government then used a further power to make supposedly consequential amendments to the Illegal Migration Act 2023 to amend the date from which section 30 – which imposed a ban on such asylum seekers from obtaining lawful immigration status - would apply, effectively lifting the ban on considering claims made by a large cohort of asylum seekers. The DPRRC has itself recommended the creation of a Henry VIII power in a bill on occasion. The 2020 Domestic Abuse Bill contained a prohibition on in-person cross-examination by a party to family proceedings where the cross-examiner had been convicted of a “specified offence” and the witness was a victim of that offence [1]. “Specified offence” would have been defined entirely in regulations made under the negative procedure. The Committee recommended instead that a list of offences should be set out in the Bill, accompanied by a (Henry VIII) power to amend the list by regulations subject to the affirmative procedure. This proposal was accepted by the Government. Our Compendium of Legislative Standards lists the principles that the DPRRC has generally applied to Henry VIII powers: • they should only be conferred where there is a very clear justification for them; • without sufficient justification, it is inappropriate for all of the changes to primary legislation, made in connection with a system established through a bill, to be made through delegated legislation; • particularly compelling reasons are needed to justify awarding Henry VIII powers to amend the Act that created them; • there is a strong presumption that the affirmative procedure should apply to them; • where a Henry VIII power is subject to a scrutiny procedure other than the affirmative procedure, a full explanation of the reasons for choosing a different procedure should be provided in the Delegated Powers Memorandum. [1] DPRRC, Twenty-First Report of Session 2019-21, para. 7

Our Delegated Legislation Review considered what approach should be taken to the granting and use of Henry VIII powers and concluded that if our proposed improvements to the scrutiny system were made then no additional safeguards would be necessary. In our view the scrutiny of Henry VIII powers should focus on function, not form, and be judged according to the intended effect of the power when implemented.