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Last updated: 08 July 2009
Content of the Delegated Powers Memorandum
16.1 The chapter on drafting the Bill discussed the need to consider the appropriate level of Parliamentary scrutiny for any enabling powers to be provided in the Bill. The terms of reference of the Lords Delegated Powers and Regulatory Reform Committee (DPRRC) are “…to report whether the provisions of any Bill inappropriately delegate legislative power or whether they subject the exercise of legislative power to an inappropriate degree of Parliamentary scrutiny…” Where a Bill provides powers to make delegated legislation, by statutory instrument or otherwise, the department will need to provide a Delegated Powers Memorandum to the DPRRC. The Delegated Powers Memorandum must be approved by the Minister and published on introduction and is one of the papers required by Legislation Committee before it will approve the Bill for introduction.
16.2 Although the Delegated Powers Memorandum is made available in both Houses, and in the case of a Bill starting in the Commons is not actually examined by the DPRRC until the Bill reaches the Lords, the Memorandum should always follow the requirements set by the Committee as set out below.
16.3 The Memorandum should give a concise account of the Bill, and:
16.4 Powers to give directions, issue codes of practice, etc. can be delegated legislative powers and must be covered in the Memorandum – if a department is unsure whether a power is legislative, it is better to include an explanation than to leave it out.
16.5 While the Memorandum should cover all proposals for delegated powers in the Bill, the DPRRC takes a particular interest in so-called “Henry VIII” powers to amend primary legislation through statutory instruments. The DPRRC has recommended that in respect of Henry VIII powers to make incidental, consequential and similar provision, there should be a presumption in favour of the affirmative procedure for orders made under this form of Henry VIII power; and if the Government propose such powers subject to anything other than the affirmative procedure, the reasons should be set out in the Explanatory Notes to the Bill as well as in the Delegated Powers Memorandum. It has also recommended that in each case the Explanatory Notes and Delegated Powers Memorandum should offer an explanation of the reasons why a particular form of wording has been adopted.
16.6 When a Bill involves both England and Wales, the Memorandum should say whether, and if so how, the devolution arrangements influenced the department's decision regarding the provisions for delegated legislation.
16.7 An enabling Bill will need to be fully justified to the DPRRC, as will any enabling provision in a Bill. In these cases it is helpful to set out any relevant precedents.
16.8 The DPRRC may, on occasion, invite further evidence, written or oral, from the department, or possibly from others, but neither is common.
Responding to the DPRRC's report
16.9 The DPRRC will aim to complete its scrutiny of the Bill and provide a report to the House of Lords before the Bill goes into Committee stage or earlier if this is feasible.
16.10 The DPRRC works by informing and making recommendations to the House. Its report may simply draw the attention of the House to the provisions concerned, or it may propose that a different form of subordinate, or indeed primary, legislation would be appropriate.
16.11 The Government can expect to be challenged on its response to any of the DPRRC's recommendations. The Bill team must therefore consider the report carefully and advise Ministers which of the recommendations can be accepted. The Minister should write to the Chairman of the DPRRC before Committee stage to inform them of the Government's response to the recommendations (which is usually published) – but should not commit to making any amendments unless these have already been cleared by Legislation Committee in the normal way. Departments therefore need to make sure that they consider their response to the DPRRC promptly, to allow time to seek clearance if necessary.
16.12 It is usual for the Government to accept most, if not all, of the DPPRC's recommendations, but any changes to the Bill as a result must nonetheless be cleared through Legislation Committee in the normal way, and may also require clearance through the relevant policy Committee of Cabinet. There is therefore benefit in departments anticipating the views of the DPRRC when drafting the Bill to avoid the need for amendments. The DPRRC's advisers are willing to be consulted informally before introduction.
16.13 Careful handling will be required if the Government chooses not to accept the recommendations of the DPRRC.
Practicalities on introduction
16.14 For Bills starting in the House of Lords, on introduction to the Lords the Delegated Powers Memorandum should be submitted to the DPRRC with 50 copies placed in the Commons Vote Office, 10 in the Lords Printed Paper Office and further copies in the Libraries of both Houses. Then on passage to the Commons the revised Memorandum should be sent to the DPRRC with 50 copies placed in the Commons Vote Office and further copies in the Libraries of both Houses. There is no specific commitment to provide extra copies to the Lords Printed Paper Office at this point but departments may find it helpful to do so.
16.15 For Bills starting in the House of Commons, on introduction to the Commons the Memorandum should be submitted to the DPRRC with 50 copies placed in the Commons Vote Office and further copies in the Libraries of both Houses. There is no specific commitment to provide extra copies to the Lords Printed Paper Office at this point but departments may find it helpful to do so. Then on passage to the Lords the revised Memorandum should be sent to the DPRRC with 50 copies placed in the Commons Vote Office, 10 in the Lords Printed Paper Office and further copies in the Libraries of both Houses.
16.16 Sending or copying to the DPRRC means emailing the Memorandum to dprr@parliament.uk.
16.17 Whichever the House of introduction, when the Bill passes to the second House the Memorandum needs to be updated to reflect any amendments made in the first House.
16.18 If the Government tables amendments involving further delegated powers, a further Memorandum must be prepared and the DPRRC may report again. The Government has also agreed that, where possible and where relevant, it will submit a Memorandum to the DPRRC on any non-Government amendment where it has indicated in advance that it would support both the policy and the drafting of that amendment. In cases of doubt, departments should seek advice from the Government Whips' Office in the Lords.
16.19 As a general rule, Bill teams should keep the DPRRC informed of any issues around the Bill which they are likely to be interested in. Any correspondence to the Chair of the DPRRC should be copied to the Committee Clerk who is also willing to advise departments on delegated powers matters on 020 7219 3233.
Delegated powers in Private Members' Bills
16.20 The DPRRC may report on any public Bill containing delegated powers. If a Government-supported Private Member's Bill looks likely to complete its Commons stages and reach the Lords (even if the Government has only agreed to support the Bill part-way through its passage), the department responsible should submit a Memorandum to the DPRRC as set out above, by the time the Bill reaches the Lords at the very latest. For a Government-supported Lords Private Member's Bill, a Memorandum should be submitted as soon as possible after introduction.
16.21 More detail on delegated powers and issues to be considered when drafting the Bill are in the earlier chapter on drafting the Bill.