Delegated legislation represents one of the most significant constitutional challenges of our time. It has long been a focus of Hansard Society research, expertise and advocacy. This page brings together information and links on our key delegated legislation-related projects, publications and services.
The problems with the delegated legislation system have long been known but Brexit and Covid-19 have illuminated them in stark terms. Our Review will lay out a comprehensive plan to address them.
There are problems with both the delegation of powers in Bills and the scrutiny of the Statutory Instruments that arise from those powers. But the time is now ripe for reform. Our Review will work with experts to develop an alternative system that would benefit government, Parliament and the public.
Delegated legislation: the problems with the process
This report was produced for the public launch of our Delegated Legislation Review in November 2021. It sets out some of the central problems that need to be resolved with respect to both the delegation of powers to make delegated legislation and the scrutiny of the Statutory Instruments (SIs) that arise from those powers. It includes a number of case studies that evidence the problems and provide practical illustrations of why reform is needed.
The Devil is in the Detail: Parliament and Delegated Legislation
This 2014 book was the first comprehensive study of the delegated legislation system at Westminster for nearly 80 years. The book opens up the process, through the presentation of detailed research and case studies; concludes that the current system is broken; and sets out some ideas for reform.
Delegated powers: Bill briefings
As part of our Delegated Legislation Review, we are producing a series of briefing papers on the delegated powers in some major Bills as they are being considered in Parliament.
The UK Government’s ‘Benefits of Brexit’ Policy Paper proposes allowing changes to retained EU law to be made "more easily" via delegated legislation. This raises constitutional concerns about the undermining of Parliament’s legislative authority.
The UK’s new Russia sanctions Regulations, being debated by the House of Commons on 22 February 2022 with one day’s notice, highlight the use of delegated legislation to introduce sanctions regimes and the challenges posed for parliamentary scrutiny of urgent measures.
A forthcoming judicial review on children-in-care highlights parliamentarians’ inability to challenge only certain aspects, rather than the whole, of a Statutory Instrument. Courts can and do provide an important backstop against unlawful use of delegated powers, but this does not diminish the need for better parliamentary oversight of delegated legislation.
A recent House of Lords debate on a ‘made negative’ Statutory Instrument highlights Peers’ greater appetite and ability to secure such debates compared to MPs. Data on debate lengths suggests parliamentarians are more likely to give more meaningful scrutiny to SIs they wish to debate than those on which they are obliged to spend time by current procedures.
Statutory Instruments (SIs) have been a key tool in the government’s response to shortages of heavy goods vehicle (HGV) drivers. These SIs showcase the usefulness of this type of law-making but also highlight again some of the longstanding problems with its parliamentary scrutiny.
Delegated legislation may not be glamorous but it is essential to how our democracy works. Time to treat it accordingly.
The launch event for our Delegated Legislation Review raised a number of challenging constitutional and practical issues to be explored further during the Review process. The vivid discussions also confirmed the existence of both heightened interest in delegated legislation and a large degree of cross-party consensus on the need for reform.
The new Regulations requiring Covid-19 vaccination for workers in care homes again expose some of the longstanding problems with the delegated legislation system at Westminster: broad ministerial powers used inappropriately; inadequate government provision of supporting information; and ineffective scrutiny arrangements, primarily in the House of Commons.
Whether football ‘comes home’ on 11 July or not, the holding of the UEFA European Football Championship – like other major sporting events – has been managed in part by using Statutory Instruments, the most common form of delegated legislation.
MPs are debating motions on ‘made negative’ Statutory Instruments (SIs) on three successive days this week. While the debates will give a last-minute boost to the government’s record for the handling of such SIs in the 2019-21 session, they also highlight how the government’s control of time undermines MPs’ role in scrutinising such Instruments.
The end of the transition period is likely to expose even more fully the scope of the policy-making that the government can carry out via Statutory Instruments, as it uses its new powers to develop post-Brexit law. However, there are few signs yet of a wish to reform delegated legislation scrutiny, on the part of government or the necessary coalition of MPs.
Several parliamentary committees scrutinise delegated powers and delegated legislation. But what is the aim of this scrutiny, what standards are applied, and what are the value and limits of Parliament’s role in this aspect of the legislative process?
With respect to the importance of delegated legislation, the next stage of the Brexit process is unlikely to be much different from the last. Without urgent, substantial reform of delegated legislation scrutiny in the House of Commons, much of the detailed implementation of Brexit will be done by the executive with limited parliamentary oversight.
MPs are setting up the new sifting committee for delegated legislation under the EU (Withdrawal) Act, but the new procedure simply bolts a toothless sift onto the front of existing inadequate procedures.
The forthcoming Great Repeal Bill will be the most prominent piece of enabling legislation since the controversial Public Bodies Act 2011.
The Coronavirus crisis saw UK Ministers being granted and using broad legislative powers to make a large body of Coronavirus-related Statutory Instruments (SIs), often at speed and in ways that highlighted and challenged Parliament’s already-inadequate ability to scrutinise delegated legislation.
Our Coronavirus Statutory Instruments Dashboard is the only source that combines the full list of Coronavirus-related SIs laid before the UK Parliament with real-time data on the powers and procedures being used to lay them and the breakdown of departments responsible.