Delegated powers and framework legislation
Not all laws are made directly by Parliament. Some are made by ministers, known as delegated powers. These have been used more frequently, and with important constitutional consequences, in recent years.
Primary laws in the UK mainly take the form of Acts of Parliament or of one of the devolved legislatures. However, Acts of Parliament may also give ministers (or other bodies) powers to make further laws without the need to pass further primary legislation. Laws made in this way are known as secondary or delegated legislation, and so these law-making powers are often known as delegated powers. Most laws of this type take the form of a statutory instrument.
In many cases, delegated legislation may be technical and uncontroversial, but it can also be used to implement policy decisions of significant consequence. For example “Henry VIII powers” can be used to modify or repeal existing Acts of Parliament.
Framework legislation“Framework” bills, often known as “skeleton” bills, are those where most of the policy content is to be determined by delegated legislation. Framework bills can be controversial because Parliament has much less opportunity to scrutinise delegated legislation compared with primary legislation.
Prevalence of framework billsNew analysis in this paper (Section 2) suggests that the prevalence of framework bills in the UK Parliament broadly increased from 1991 to 2023, although this trend was not consistent throughout that period.
The average number of framework bills per year was higher between 2016 and 2023 than between 1991 and 2015. This was partly, but not wholly, a result of the UK Government introducing interim legal arrangements before the details of the UK’s withdrawal agreement and future relationship with the EU were known.
Potential problems with framework legislationParliamentary committees and external commentators have said that use of framework legislation can reduce parliamentary scrutiny. If little or no information is provided about how delegated powers might be used, parliamentarians are then being asked to pass primary legislation without knowing the detail of policy that might be implemented by ministers.
Framework bills can also set precedents for more extensive delegation of powers and use of delegated powers in future, diluting legislative scrutiny.
The House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) has previously drawn attention to bills it considers to be “skeletal”. It has argued that the use of skeleton bills by the government should be accompanied by a full justification of that approach.
However, when there are precedents for delegating powers (or when sufficient detail is provided about how powers will be used) the committee has sometimes viewed the use of framework bills as acceptable.
Committees in Parliament and other organisations have suggested legislative and procedural reforms to reduce the problems associated with framework bills. For example, The Hansard Society think tank has called for a new agreement between the UK Government and Parliament on the appropriate use of delegated legislation.
Devolution and delegated powersSince the advent of devolution to Scotland, Wales and Northern Ireland, Acts of the UK Parliament that include delegated powers for devolved matters have normally conferred these powers exclusively on devolved ministers. Unlike with primary law-making, UK ministers generally do not have the power to make secondary law in devolved areas unless a post-devolution UK Act of Parliament specifically provides otherwise.
Where Acts of Parliament have (unusually) conferred delegated powers on UK ministers in devolved areas, they have sometimes included statutory obligations to consult, or to seek or obtain the consent of, the devolved administrations before those powers can be exercised (see Section 4.4).
In other cases, the UK Government has made a political commitment to seek the devolved governments’ agreement. However, the legislative consent convention – that the UK Parliament will not normally legislate on devolved matters without the consent of the affected devolved legislatures – does not, as such, apply to secondary legislation.
Some legal commentators, including Professor Aileen McHarg of the University of Durham, have observed that UK ministers have been granted delegated powers in areas of devolved competence more frequently in recent years – especially (but not only) in Brexit-related Acts of the UK Parliament.
The Scottish and Welsh Governments (among others) have raised concerns about the impact this has had on the devolution settlement, the autonomous exercise of devolved powers, and accountability for policy-making in devolved areas (see Section 5).