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? 18-22 November 2024

MPs will debate creating an independent Armed Forces Commissioner to support service members and their families. Five Cabinet Ministers and the Bank of England Governor are among those giving evidence to Select Committees. Peers will consider the Product Regulation and Metrology Bill in Grand Committee. MPs will consider the £2.26 billion Financial Assistance to Ukraine Bill, funded by frozen Russian assets. The House of Commons will also debate Strategic Lawsuits Against Public Participation (SLAPPs).

17 Nov 2024
Read more

Webinars / The Assisted Dying Bill: How will Parliament decide? Exploring the parliamentary process

As we approach the Second Reading of the Assisted Dying Bill in the House of Commons later this month, join us for this online discussion to learn more about the parliamentary process behind this Private Member’s Bill (PMB). This event is ideal for anyone interested in what might unfold in the upcoming debate, the distinct procedural challenges PMBs encounter compared to government bills, and how these parliamentary rules could ultimately shape the outcome of the Assisted Dying Bill. 6:00pm - 7:15pm, Tuesday 26 November 2024 Online (via Zoom)

26 Nov 2024
Read more

News / The Assisted Dying Bill: Is more parliamentary time needed? - Parliament Matters podcast, Episode 55

Could one of the most consequential Private Members’ Bills in nearly fifty years - the Terminally Ill Adults (End of Life) Bill, which seeks to legalise assisted dying - be stopped not due to its content but because MPs fear they won’t have time to scrutinise it properly?

15 Nov 2024
Read more

News / The Official Opposition: how to be effective in Parliament - Parliament Matters podcast, Episode 54

Following Kemi Badenoch’s election, this episode explores the challenges she faces as the new Leader of the Opposition. What does it take to build an effective Opposition? What strategic decisions, policy initiatives, and personnel choices must she navigate? What resources and procedural tools can she use to challenge the Government and build a compelling public profile? How does she balance party cohesion with presenting a credible alternative government and preparing for future elections?

12 Nov 2024
Read more

News / Urgent Questions: Answering your questions about how Parliament works - Parliament Matters podcast, Episode 52

In this episode, we discuss a variety of intriguing questions from listeners about the traditions and inner workings of Parliament. Topics include conduct in the Commons chamber, the practice of whipped votes, the origins of the Private Members' Bill ballot, and the unusual presence of ministers on select committees. We also discuss why MPs often refer to question numbers rather than asking questions directly in the Chamber, and consider the prospects for a future House of Lords committee dedicated to scrutinising EU-related issues affecting Northern Ireland.

06 Nov 2024
Read more