It has become increasingly popular to include what I term a super-enabling clause in primary legislation. It is my contention these clauses are bad for democracy and the rule of law.
A regular enabling clause grants a minister the power to make secondary legislation on a specific point. A super-enabling clause is broader and less specific: it grants a minister the power to make secondary legislation to give full effect to an Act, or make further legislative changes consequential or incidental to an Act. It acts like a sweeper, granting additional powers not previously enumerated, or a fall-back granting general powers to cover points not already set out in one of the specific powers. The use of these clauses has been criticised recently by the Hansard Society in relation to the Northern Ireland Protocol Bill. But this criticism is but one example of a broader groundswell of criticism around the division of regulatory weight between primary and secondary legislation. This division was trenchantly criticised last year by the Delegated Powers and Regulatory Reform Committee in a report entitled Democracy denied and the Secondary Legislation Scrutiny Committee in a report entitled Government by diktat.
Examples of super-enabling clauses
This is not just a Westminster phenomenon. Even a cursory skim through recent legislation enacted by all four Parliaments in the UK excavates examples of super-enabling clauses. The Senedd Cymru enacted this provision in section 198 of the Social Services and Well-being (Wales) Act 2014:
(1) If the Welsh Ministers consider it necessary or expedient for the purposes of giving full effect to any provision of this Act, or in consequence of any such provision, they may by regulations make
(a) any supplementary, incidental or consequential provision, and
(b) any transitional or saving provision.
The Westminster Parliament enacted this in section 85 of the Domestic Abuse Act 2021:
(1) The Secretary of State may by regulations make provision that is consequential on any provision made by or under
(a) Parts 1 to 5.
Under the heading of ancillary provision section 23 of the Tied Pubs (Scotland) Act 2021 states:
(1) The Scottish Ministers may by regulations make any incidental, supplementary, consequential, transitional, transitory or saving provision they consider appropriate for the purposes of, or in connection with, or for giving full effect to this Act or any provision made under it.
Completing our devolution quartet, the Northern Ireland Assembly included the following power in section 60 of the Public Services Ombudsman Act (Northern Ireland) 2016:
The Assembly Commission may by order make such supplementary, incidental, consequential or transitional provision as it considers necessary or expedient for the purposes of, or in consequence of, or for giving full effect to, any provision made by or under this Act.
Super-enabling clauses have become ubiquitous and are present in any large piece of primary legislation in the UK.
The problems with super-enabling clauses
Regular enabling clauses are perfectly proper tools to include in primary legislation. They allow parliament to delegate some of the detail of law-making to the executive, detail which would otherwise clog up the parliamentary process. Provided the parameters of the delegation are properly set out and that parliament has already taken the key decisions on what the substance of the law is to be, the use of secondary legislation is, in the words of Lord Judge in a speech on 1 November this year, necessary and often appropriate.
However, although super-enabling clauses are convenient tools for the executive to include in primary legislation, they are not to be welcomed for a number of reasons.
Firstly, secondary legislation made under these clauses lacks democratic credibility as it has not been authorised in any meaningful sense by an Act of Parliament. Parliamentarians need to know what they are voting for directly in the Act, as well as what they are indirectly voting for by authorising the use of secondary legislation-making powers. A super-enabling clause lacks the degree of specificity to enable parliamentarians to know what they are voting for, including phrases as general as in connection with this Act. This is the level of generality that causes major problems with what are known as skeleton bills or framework legislation. Super-enabling clauses are the legislative equivalent of parliament writing the executive a blank cheque to do whatever else they feel like doing, or, using the words of Lord Judge again, allowing for government by proclamation. Commenting upon this, Joshua Rozenberg observed Power has shifted from parliament to the government. Checks on the executive are much weaker than they ever were. In the modern period, secondary legislation is almost never voted down by Parliament, so the safeguard of parliamentary scrutiny is more illusory than real. Rather than relying upon that illusory scrutiny, much better to not delegate the power in the first place.
Secondly, there is a reduction in legal certainty. Acts ought to contain precise legal propositions, but the super-enabling clause is a vague coda allowing the executive to do other stuff in connection with the legislation. A person reading an Act of Parliament ought to have a reasonably good idea of what it means, what their rights and duties are. Ordinary enabling clauses do contain sufficient detail to allow readers to foresee the general shape of the subsequent secondary legislation, but the width of super-enabling clauses undermines this legal certainty.
Thirdly, it grants far too much discretion upon ministers to make the law. The rule of law requires that we are governed in accordance with clear and established law, not governed in accordance with the personal preferences of individual ministers or officials. Tom Bingham summed up this rule of law requirement as law not discretion. The language used in super-enabling clauses is as wide as possible: supplementary, incidental, consequential, in consequence of, or for giving full effect to. The height of the hurdle to be cleared before the power can be exercised is worryingly low: expedient, or appropriate. Finally, the decision making rests on a subjective rather than objective exercise of judgement of a minister: if the minister thinks appropriate. These are not effective constraints on the exercise of executive power. It grants too much discretion as it should not be for a minister to come along and decide what the law is as a matter of ministerial, or even departmental, choice. As the European Court of Human Rights in Beghal v UK App no 4755/16 28 February 2019 pointed out:
In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles in a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power.
Finally, and pragmatically, it is lazy law-making and sets a bad precedent for future law-making. It is used too often as a sweeper clause, just in case something important is missed during the primary law-making process, or just in case something else springs to mind after the Act has been passed. If there is something important, then it should go into the Act. If the executive hasnt thought through all the ramifications of its policy, then it should pause, complete that thinking, and then include that important thing in the Act. To include a super-enabling clause gives a green light to making law in a hurry without deciding upon the key points that it ought to contain. Consequential changes, and measures to give full effect to the law, should be prepared and enacted in the Act, not left to be done later as a legislative afterthought. It is an open question as to whether these powers to make consequential amendments are being used in practice, or if they are just in case powers.
Turbo-charging super-enabling clauses with Henry VIII powers
A regular partner in crime to the super-enabling clause is the Henry VIII power. A Henry VIII power is a clause in primary legislation which grants the power to amend primary legislation by way of secondary legislation. It is a remarkable provision which goes against the normal conception of the separation of powers. Only the legislature can make primary legislation, but a Henry VIII clause allows the executive to usurp this power and make primary legislation itself. Criticism of Henry VIII powers is regular, see for example the legisprudence of the Constitution Committee of the House of Lords summarised by the Constitution Unit at University College London.
Combining super-enabling powers with Henry VIII powers turbo-charges them and magnifies all their legitimacy and rule of law problems. It grants a minister the power to amend Acts of Parliament as they consider appropriate. It converts the executive into a self-executing legislature, usurping the proper legislative function of parliaments. Executive law-making becomes autopoietic, a self-perpetuating system without need of external inputs.
Conclusion determining the division of regulatory weight between primary and secondary legislation
The Hansard Society review of delegated legislation project questions how we make and scrutinise secondary legislation. Super-enabling clauses are one more tool allowing for a poor division of regulatory weight between primary and secondary legislation. Executives have become habituated to including them and parliaments habituated to enacting them. But, as I have argued above, they are bad for the democratic legitimacy of our system of laws and undermine the rule of law.
Dr Ronan Cormacain, Consultant Legislative Counsel
A more detailed consideration on the nature of delegated powers is set out in my forthcoming book The Form of Legislation and the Rule of Law.
(Suggested citation: R. Cormacain, The rise and rise of the super-enabling clause, U.K. Const. L. Blog (30th November 2022) (available at https://ukconstitutionallaw.org/))